Property

Question 1

What are the elements of adverse possession?

Answer 1

Continuous
* Uninterrupted for statutory period (10 years)

Open and Notorious
* Use is visible and obvious

Actual and Exclusive
* Physical use as a true owner would

Hostile
* Without permission

Question 2

Color of Title

Answer 2

Possession under defective deed → may get entire parcel

Question 3

Constructive Possession

Answer 3

Owner of land owns wild animals on it

Question 4

Tacking

Answer 4

Allowed if privity of estate exists: A legal connection between successive property owners (deed, will, inheritance)

• Joining together the periods of ownership by successive adverse possession

Question 5

Boundary Disputes Doctrines:

Answer 5

Agreed Boundaries: Oral OK with reliance

Acquiescence: Long-standing acceptance of line

Estoppel: Reliance on statement + improvements

Laches: Unreasonable delay bars recovery

Question 6

Disabilities

Answer 6

Minors, Imprisonment and Mental Illness
* SOL is tolled only if present at time of entry
* Ends when disabilitiy ends
* After the expiration of 10 years, may bring action within 5 years after such disability is removed

Question 7

AP Against Chattels

Answer 7

Discovery Rule Applies
* SOL starts when owner knows or should have reasonably known who has/ when the chattel went missing

Question 8

What are the 3 views regarding the element of hostile for adverse possession?

Answer 8

Objective View
* AP’s intent is immaterial but AP must possess as an actual owner would and the real owner does not consent to AP’s possession

Bad-Faith:
* AP knows the land is not his.

Good-Faith:
* AP must believe that he owns the property
NY is a good faith jurisdiction*

Question 9

Fee Simple Absolute (FSA)

Answer 9

“To A and his heirs” (modern: “To A” is enough)

Fully alienable, devisable, and descendible

Question 10

Life Estate

Answer 10

“To A for life”

Ends at A’s death; not devisable or descendible

Pur autre vie: measured by another’s life

Future interest: Reversion (grantor) or Remainder (third party)

Question 11

Fee Tail

Answer 11

“To A and the heirs of his body”

Keeps property in family bloodline

O retains reversion

Question 12

Fee Simple Determinable

Answer 12

Ends automatically on condition (“so long as,” “while,” “during”)

Future interest: Possibility of Reverter (grantor)

Question 13

Fee Simple Subject To Condition Subsequent

Answer 13

• Not automatic; must exercise right of reentry (“but if,” “on condition that…”)
• SOL to exercise right of entry usually same as AP SOL

Future interest: Right of Entry (grantor)

Question 14

Fee Simple Subject to Executory Limitation

Answer 14

Shifts to third party on condition

Future interest: Executory Interest (shifting or springing)
Shifting = Between transferees
Springing = Divest the interest to the transferor

Question 15

Vested Remainder

Answer 15

a remainder is vested if:
* (1) it is in favor of an ascertained person (living and identifiable) and
* (2) it is not subject to a condition precedent

Question 16

What Are The Three Types of Vested Remainders?

Answer 16

Indefeasibly vested

Vested subject to open

Vested subject to complete divestment

Question 17

Contingent Remainder

Answer 17

A remainder is contingent if:
* (1) it is in favor of an unascertainable person (e.g., an unborn person, such as the oldest child of B who is currently childless or someone who is not identifiable such as the president of the U.S. in 2040 or B’s heirs); or
* (2) It is subject to a condition precedent (e.g., remainder to C, if C travels to London-and C has never traveled to London).

Always a reversion in the grantor

Question 18

Executory Interest

Answer 18

Cuts short prior interest (shifting) or follows gap (springing)

Always contingent

Question 19

What’s a Remainder?

Answer 19

A future interest that is capable of becoming possessory immediately upon the natural termination of the prior estate

Question 20

Indefeasibly Vested Remainder

Answer 20

• No condition subsequent and is not a class gift subject to open
• Certain of becoming possessory in the future and can never be divested

Question 21

Vested Remainder Subject to (Complete) Divestment

Answer 21

It is vested but can be divested if a condition subsequent occurs
* Ex. O conveys Whiteacre to A for life, then to B and her heirs, but if B does not graduate from law school by age 55 to C and his heirs.

Question 22

Vested Remainder Subject to Open (remainder in a class subject to partial divestment):

Answer 22

it is vested in at least one class member which means the class member is:
* (1) ascertained and
* (2) not subject to a condition precedent

Question 23

Rule of Convenience

Answer 23

Class closes whenever any member of the class can demand possession or distribution

Question 24

Doctrine of Merger

Answer 24

Life estate + next vested estate in same person = smaller estate merges into larger estate

Question 25

RAP

Answer 25

Must vest or fail within 21 years of a life in being 1. Identify the time that the transfer becomes effective. 2. Classify all interests at the time of transfer. 3. Identify which interests are subject to the Rule Against Perpetuities. The following interests are subject to RAP: 4. Identify the relevant lives (lives in being at the time the transfer became effective). The person should have a relationship to: 5. RAP Analysis: Identify the validating life (also known as a measuring life) or lives. 6. Rewrite the disposition if the interest violates RAP.

Question 27

Doctrine of Worthier Title:

Answer 27

“To A for life, then to O’s heirs” → O has reversion When a grantor conveys land during life to a person and purports to create a remainder or an executory interest in the grantor’s heirs, the grantor retains a reversion.

Question 28

Rule in Shelley's Case

Answer 28

“To A for life, then to A’s heirs” = A gets FSA If the same instrument creates a life estate in A and purports to create a remainder in A’s heirs (or the heirs of A’s body) and the interests are both legal or both equitable, then the remainder becomes a remainder in fee simple in A. Three Requirements: * Freehold estate given to a first transferee * Remainder limited to the heirs of the first transferee in the same instrument * Freehold and a remainder in the same quality

Question 29

What Interest Are Subject to RAP?

Answer 29

* Contingent remainders. * Executory interests. * Vested remainders subject to open.

Question 30

Term of Years

Answer 30

* Fixed end date (e.g., 1 year lease) * No notice needed to terminate * Fully transferable unless restricted

Question 31

Periodic Tenancy

Answer 31

* Renews automatically (e.g., month-to-month) * Terminated by notice (equal to the period)

Question 32

Tenancy at Will

Answer 32

* No fixed term; continues until one party ends it * Often ends at death or with notice

Question 33

Tenancy at Sufferance

Answer 33

* Tenant wrongfully holds over after lease ends * Landlord can evict or create new tenancy

Question 34

Landlord Duties

Answer 34

Deliver possession * English Rule: Actual + legal possession (Majority) * American Rule: Legal only (Minority) Implied Warranty of Habitability (residential only) * Safe and livable * Breach → withhold rent, repair & deduct, move out, sue Covenant of Quiet Enjoyment * No interference with use/possession * Breach → Constructive eviction (requires tenant to leave)

Question 35

Implied Warranty of Habitability

Answer 35

* Implied: Requires that rental premises be offered and maintained in physical condition that provides safe, habitable housing for tenants 3 Elements For a Claim: * Defect must be substantial * Landlord must have notice * Landlord must be given reasonable time to repair the defect Tenant does not have to vacate to bring claim

Question 36

Implied Warranty of Quality

Answer 36

Protects buyers of newly constructed residential properties, although the modern trend is to allow subsequent purchasers of a home to sue builders for breach of implied warranty * Suits can arise only after the closing has taken place and the plaintiff has accepted the deed Majority Rule: Implied warranty exists and protects buyers of newly constructed homes

Question 37

What Are Some Tenant Duties?

Answer 37

Pay rent Avoid waste No unlawful alterations Surrender or sublet/assign with permission (if required)

Question 38

Assignment

Answer 38

Transfers all lease interest Landlord can collect rent from assignee (privity of estate)

Question 39

Sublease

Answer 39

Transfers less than full term No privity with landlord

Question 40

Remedies For IWH

Answer 40

* Damages = Value of dwelling as warranted - value with defective condition * Withold payment of future rent * Deduct expenses of tenant's repair from future rent (Need to go to someone that is licensed to have repair done)

Question 41

Duty of Quiet Enjoyment

Answer 41

Landlord promises the tenant shall have quiet and peaceful possession of the premises for the term Usually paired with actual eviction + constructive eviction **Actual**: Being physically removed or kept out by the landlord **Constructive**: Intentional acts or failures to act by landlord that substantially interfere with tenant's enjoyment of the premises

Question 42

# le Tenancy in Common

Answer 42

Default * Each tenant has an undivided interest in the whole. * Freely transferable, devisable, and descendible. * No right of survivorship.

Question 43

Joint Tenancy with Right of Survivorship

Answer 43

Requires 4 unities * Time – Interest must be acquired or vest at same time * Title – same instrument * Interest – identical shares * Possession – equal rights to possess entire property Right of survivorship: Last surviving tenant owns all Severed By: Sale, partition (you have the right to bring it), or breaking one of the 4 unities

Question 44

Tenancy by the Entirety

Answer 44

* Only for married couples. * Includes survivorship. * Need 4 unities + couple must be married at time they acquire the property * Cannot be severed by one spouse alone. * Creditors of one spouse cannot reach the property. * Cannot partition * Divorce terminates and result is tenancy in common

Question 45

Severeance of Joint Tenancy and Mortgages

Answer 45

Unilateral sale severs JT → creates a tenancy in common. Mortgages: * **Lien theory (majority)**: mortgage does not sever JT. * **Title theory**: mortgage does sever JT.

Question 46

Rights and Duties of Cotenants

Answer 46

* Right to Possess: All cotenants have full possession of the whole. * Rent from 3rd parties: Must be shared proportionally. * Ouster: Exclusion of another cotenant → may trigger rent liability.

Question 47

Contribution

Answer 47

* Necessary repairs: Yes (contribution allowed). * Improvements: No, unless partition or sale increases value. * Taxes/Mortgage: Yes—must be shared proportionally.

Question 48

Partition

Answer 48

* Partition in kind: Physical division (preferred). * Partition by sale: If in-kind is impractical or wasteful. * Owelty: Payment to equalize value if shares are unequal.

Question 49

Ouster

Answer 49

* When the occupying tenant acts to prevent the other co-tenants from using the property (e.g. changing locks, etc.) * Generally, before the ousted co-tenant can bring an action, they must make a demand for access to the property and be denied access In Cases of Tenants in Common: **Majority Rule**: If no ouster, there is no duty for tenant in possession to pay a proportionate share of the rental value to the cotenants out of possession There is a duty to account for pro rate share of rental income if the person is renting property to someone else **Minority Rule**: If not ouster, there is a duty of the tenant in possession to account for the imputed rental value + pro rate share of rental income

Question 50

Covenants Running at Burden (Need?):

Answer 50

Need: 1) Writing 2) Intent 3) Notice 4) Horizontal privity (between original parties) 5) Vertical privity (between original party and successor) 6) Touch and concern (the covenant must relate to the use/enjoyment of the land (not just a personal promise).)

Question 51

Covenants Running on Benefit (Need?):

Answer 51

1) Writing 2) Intent 3) Some vertical privity 4) Touch and concern (the covenant must relate to the use/enjoyment of the land (not just a personal promise) Majority Rule: A person who no longer owns the land, cannot enforce the benefit of the covenant

Question 52

Covenant

Answer 52

* Requires at least 2 pieces of land * Cannot have a covenant on your own land * Covenant can be called as a promise made by a single party either to engage or refrain from conduct * Remedy is money damages Think "the house has to be blue or has to be..."

Question 53

Horizontal Privity

Answer 53

* Covenant needs to be a part of the deed that was made for the transfer of land - this is required for the running of the burden of a covenant Four Requirements: * Agreement must be in writing (Subject to the SOF) * Parties must intend to bind future successors * The promise “touched and concerned” the land * There was privity of estate between the covenanting parties -----------E.g. grantor-grantee, landlord-tenant, mutual interest in land (A has the fee and B has an easement)

Question 54

Equitable Servitudes

Answer 54

* Equitable relief, injunctions, specific performance, etc. * A non-possessory interest in land that allows the owner of the benefitted property to use or restrict the use of the burdened property. * One who purchases property with knowledge of restrictive covenants burdening the land must honor the covenant.

Question 55

Traditional Requirements For Equitable Servitudes

Answer 55

(1) intent (same as for real covenants); (2) "touch and concern" (same as for real covenants); and (3) notice. Burden: Intent, Interest in land, touch and concern and notice Benefit: Intent, some interest in land, touch and concern

Question 56

Equitable Defense of Laches

Answer 56

Laches is an equitable defense, or doctrine. A defendant who invokes the doctrine is asserting that the claimant has delayed in asserting its rights, and, because of this delay, is no longer entitled to bring an equitable claim.

Question 57

Common Interest Communities

Answer 57

Must be: * Part of general plan * Buyer had notice

Question 58

Termination of Covenants/ Servitudes

Answer 58

* Release (in writing) * Merger (dominant + servient estates merge) * Abandonment (clear intent not to enforce) * Changed Conditions (so drastic original purpose is frustrated)

Question 59

Recording Acts

Answer 59

Protect subsequent bona fide purchasers (BFPs) against unrecorded prior interests.

Question 60

Notice Statute (Equal Majority)

Answer 60

Protects: a BFP without notice, even if they don’t record. BFP wins unless they had actual, inquiry, or record notice.

Question 61

Race-Notice Statute (Equal Majority)

Answer 61

Protects: a BFP only if: * No notice at time of purchase, and * They record first

Question 62

Race Statute (Minority)

Answer 62

First to record wins, even if they know about prior conveyance.

Question 63

Default Rule For When The Recording Statutes Don't Apply

Answer 63

If the recording statutes do not apply then we apply the common law rule which follows priority is first in time based

Question 64

Wild Deed

Answer 64

A deed outside the chain of title = not properly recorded → doesn’t give notice

Question 65

Shelter Rule

Answer 65

A BFP (if they would have prevailed over the other party) can transfer protection to a non-BFP (ex. donee, heir, etc) * If B prevailed over A and then conveyed to C, then C will prevail over A * Applies to all jurisdictions

Question 66

Estoppel By Deed

Answer 66

If grantor conveys land they don't yet own, but later acquires it → grantee gets it automatically.

Question 67

Types of Notice

Answer 67

Actual: Knew of earlier interest Inquiry Notice: A reasonable person would investigate Record (Constructive) Notice: Earlier deed was properly recorded in the chain of title

Question 68

Easement

Answer 68

* To use the land in a specific way for a specific purpose - a right to use * Cannot have easement on your own property * Can last forever and is irrevocabale * Must be in writing * If easement has been recorded, burden of easement transfers to the BFP * If the successor of the property is a donee it is not crucial that they know of the easement because they step into the shoes of the donor

Question 69

Requirements For Burden Side of Easement

Answer 69

* Need in writing * Intent to keep burden running, today this is generally presumed * Notice (actual, constructive, inquiry) of the easement

Question 70

Requirements For Benefit Side of Easement

Answer 70

* Need in writing * Intent to keep benefit transferred, today this is generally presumed * Acceptance, though generally presumed

Question 71

Appurtenant Easement

Answer 71

* Benefits a parcel of land (dominant estate) * Transfers with land

Question 72

In Gross Easement

Answer 72

* Benefits a person * No dominant estate * Cannot be terminated like a license can

Question 73

Creation of Easements

Answer 73

Express (in writing, signed, complies with Statute of Frauds) Implied by Prior Use * Common ownership → use was existing, apparent, and reasonably necessary Implied by Necessity * Absolute necessity + common ownership + severance Prescriptive Easement (acquired by adveruse use) * Actual, open and notorious, continuous, hostile for statutory period. Don't need exclusivety

Question 74

Termination of Easements

Answer 74

* Release – in writing * Merger – when dominant and servient estates come under common ownership * Abandonment – intent to abandon + physical act (mere nonuse is not enough) * End of Necessity * Prescription – servient owner blocks use openly and adversely

Question 75

Licenses

Answer 75

* Giving someone limited ease to a portion of property for a purpose * Not need to be in writing * Revocable at any time - Can become irrevocable if licensee has invested substantially in reliance

Question 76

Zoning Basics

Answer 76

Zoning laws divide land by use categories (residential, commercial, industrial, etc.) Based on police power: must promote health, safety, morals, or general welfare Can regulate: height, bulk, density, aesthetics, and land use

Question 77

Zoning Amendments

Answer 77

Must be consistent with the comprehensive zoning plan Under the standard act: * A city must create a planning (or zoning) commission and a board of adjustment (sometimes called a board of zoning appeals)

Question 78

Zoning Variance

Answer 78

A permit to use your property in a way that is not lawful under the zoning laws (think of it like an exception)

Question 79

Area Variances

Answer 79

The area is being affected; An area variance allows you to use the land in a manner that doesn’t adhere to the physical and dimension requirements listed in a zoning ordinance. Requirements: * Undue hardship and show reasonable steps taken to avoid it

Question 80

Use Variance

Answer 80

A use variance gives you the ability to use the land you own for means that have otherwise been restricted by the surrounding zoning ordinance. Requires: * Undue hardship and whether the applicant has taken reasonable steps to avoid it

Question 81

Prior Nonconforming Use

Answer 81

Can grandfather in any prior nonconforming use to allow it to continue OR give a period of time (**amortization** covenant) that gives the opportunity for the owner of the nonconforming use to recoup it’s investment and then to move elsewhere (generally give a few years) Amortization must be reasonable in order to be enacted

Question 82

Private Nuisance

Answer 82

* Substantial and unreasonable interference with another’s use/enjoyment of land * Doesn’t require physical invasion * Balance harm vs. utility

Question 83

Public Nuisance

Answer 83

* Unreasonable interference with a right common to the public (e.g., pollution) * Usually enforced by the government * Private plaintiff must show special injury

Question 84

Threshold (Jost) Test (Test used for unreasonableness)

Answer 84

Focuses on what the defendant is doing

Question 85

Restatement Second Balancing Test: (Test used for unreasonableness)

Answer 85

Gravity of the harm caused outweighs the utility of the actor’s conduct