Property Flashcards
(246 cards)
1
Q
what are the four ways property can be transfered?
A
sale, gift, devise, intestate
2
Q
what is a fee simple?
A
largest possessory estate because its capable of lasting forever
3
Q
how do you create a fee simple?
A
“to x and their heirs” but “their heirs isn’t required - there is no future interest associated with a fee simple because it is capable of lasting forever
ambiguous grants mean nothing, they create a presumption. words of intent and purpose also mean nothing
default estate
4
Q
what are defeasible fees?
A
may be terminated by occurrence of an event; capable of lasting forever OR being terminated; condition cuts short the fee simple
5
Q
what are the types of defeasible fees?
A
fee simple determinable
fee simple subject to condition subsequent
fee simple subject to executory interest
6
Q
what is a fee simple determinable?
A
limited by specific durational language - “while” “during” “until”
future interest is a possibility of reverter
7
Q
what is a fee simple subject to condition subsequent?
A
limited by specific conditional language - “provided that” “on the condition that”
future interest - right of entry (grantor must exercise right)
8
Q
what is a possibility of reverter?
A
future interest held by grantor following fee simple determinable
vests automatically after durational period ends
9
Q
what is a right of entry?
A
future interest held by the grantor that follows a fee simple subject to condition subsequent
does not automatically vest - must be reclaimed
10
Q
what is a fee simple subject to executory interest?
A
will end upon the happening of an event and the future interest will vest in a third party
future interest - executory interest (held by a transferee NOT the grantor)
11
Q
what is an executory interest?
A
future interest that will cut short or terminate an earlier interest
12
Q
what is a life estate?
A
present estate that is limited by a life - either the transferee or some other third party
13
Q
how is a life estate created?
A
“for life”
if ambiguous - look to grantor’s intent
14
Q
how does a life estate end?
A
naturally ends at death
a life estate is transferable but it cannot be passed by will or intestate succession
15
Q
what are the future interests associated with a life estate?
A
reversion - goes back to grantor
remainder - goes to a third party
16
Q
what are the three kinds of waste?
A
affirmative
permissive
ameliorative
17
Q
what is affirmative waste?
A
waste caused by voluntary conduct which causes a decrease in value
18
Q
what is permissive waste?
A
waste caused by neglect toward the property, which causes a decrease in value
19
Q
what is ameliorative waste?
A
special situation where a life tenant or other person in possession changes the use of the property and actually increases the value of the property
20
Q
what is a remainder?
A
a future interest that follows a life estate
does not divest a present interest - its polite and waits for the prior interest to end
21
Q
what is a vested remainder?
A
an interest that is
1. given to an ascertained grantee AND
2. not subject to a condition precedent
if either fails, then it is a contingent remainder
22
Q
what is a vested remainder subject to open?
A
vested remainder in a class gift and full class membership is unknown
BUT at least one class member must have vested, if not that its contingent. when all members are identified, the class is closed
23
Q
what is the rule of convenience?
A
avoids application of RAP to a class gift
if grant doesn’t have an express closing date, the rule of convenience closes the class when any member of the class becomes entitled to immediate possession
24
Q
what is the doctrine of worthier title?
A
prevents against remainders in a grantor’s heirs; creates a reversion to the grantor
25
what is the rule in shelley's case?
prevents against remainder in a grantees heirs
uses the doctrine of merger to create a fee simple
26
what are the two kinds of executory interests?
springing - divests the grantor
shifting - divests the grantee
27
RAP?
create an interest, kill off the validating life, count 21 years
28
what does RAP apply to?
contingent remainders; executory interests; class gifts (subject to open)
29
what happens when there is a RAP violation?
strike out the part that violates and keep the rest
30
what about RAP and class gifts?
if the gift to any member of the class violates RAP, then the gift is void as to all "bad as to one, bad as to all"
31
what are the exceptions to the class gift rule?
transfers of a specific dollar amount to each member
transfers to a subclass that vests at a specific time
32
what are the exceptions to RAP?
charities
options
33
what are concurrent estates
ownership or possession of property by two or more people simultaneously
concurrent owners each have right to use or possess the whole property but can contract out of the basic rule
34
what are the three kinds of concurrent ownership?
tenancy in common
joint tenancy
tenancy by the entirety
35
what is tenancy in common?
the default concurrent interest - any conveyance to more than one person is presumed to be a tenancy in common
have separate but undivided interests
there is NO right of survivorship
36
what is a joint tenancy?
right of survivorship plus the four unities
37
what are the four unities?
possession - equal right to possession of whole property
interest - equal share of same type of interest
time - must receive at the same time
title - must receive in same instrument of title
38
what is severance?
if one joint tenant conveys their interest, it severs the joint tenancy
39
does a mortgage count as severance?
maj: lien theory - mortgage is treated as a lien and doesn't sever JT
min: title theory - mortgage severs title and is converted to a tenancy in common with creditor
40
do leases act as severance?
some jx hold lease severs JT; some jx hold that lease acts as temporary hold on JT
41
what is a tenancy by the entirety?
joint tenancy but the tenants are married
right of survivorship and 4 unities
tenants by entirety cant alienate or encumber shares without consent of spouse
42
what is the rule for possession of a concurrent estate?
each co-tenant has right to possess all of the property, regardless of that co-tenant's share and regardless of type of tenancy
except: co-tenants can contract out of this
43
what is ouster?
co-tenant in possession denies another co-tenant access to the property
44
what are the remedies for ouster?
get an injunction or recover damages
45
how are rents divided amongst concurrent owners?
rent received from a third party's possession of the property, minus operating expenses are divided based on ownership interests of each co-tenant
46
how are operating expenses handled amongst concurrent owners?
necessary charges, such as taxes or mortgage payments are divided based on ownership interest
a co-tenant can collect contribution from others in excess of their own share
47
what rights to concurrent owners have to recover for repairs?
no right to reimbursement for necessary repairs but co-tenant who makes improvements can get credit in a partition action
48
what can a co-tenant get for improvements?
no right to reimbursement for improvements, but can get credit in partition action
49
what is partition?
equitable remedy available to all holders of a tenancy in common or a joint tenancy
court will divide the property into distinct portions
if physical partition is not possible, will order partition by sale
50
what is a lease?
creates a contract interest and a property interest between a landlord and tenant
51
what are the four types of tenancies?
tenancy for years
periodic tenancy
tenancy at will
tenancy at sufferance
52
what is a tenancy for years?
measured by a fixed and ascertainable amount of time
53
how is a tenancy for years created?
agreement between landlord and tenant with intent to create a leasehold
if term is for longer than a year - must be signed and in writing to satisfy the SOF
54
how is a tenancy for years terminated?
automatically terminates at the end of the term, no notice is required.
if it ends before, its because
- tenant surrenders
- tenant or landlord commits a material breach of the lease
55
what is a periodic tenancy?
default leasehold - estate that is repetitive and ongoing for a set period of time
renews automatically at the end of each period until one party gives proper notice of termination
56
how is a periodic tenancy created?
parties must intend to create a period tenancy - can be express or implied
57
how is a periodic tenancy terminated?
renews automatically until proper notice is given
new approach: shorter notice requirement - often means before start of what will be the last term
58
what is a tenancy at will?
may be terminated at any time for any reason, by either the tenant or the landlord
59
how is a tenancy at will created?
express agreement or implication
60
how is a tenancy at will terminated?
can be terminated by either party without notice
- if agreement gives only the landlord the right, then the tenant also gets the right by implication
- if the agreement gives only the tenant the right, the landlord is SOL
- if one party dies, tenancy at will is terminated
61
what is a tenancy at sufferance?
created when a tenant holds over after the lease had ended
- temporary tenancy taht exists before landlord evicts prior tenant or rerents to tenant
- tenant owes reasonable value for daily use and reasonably foreseeable special damages
62
how is a tenancy at sufferance created?
created by actions of the tenant alone
63
how is a tenancy at sufferance terminated?
- tenant voluntarily leaves
- landlord evicts tenant
- landlord re-rents to tenant
64
what duties does a tenant have?
pay rent and avoid waste
65
when is the duty to pay rent applicable?
arises because of contractual relationship between landlord and tenant - lease requires it
66
when is the duty to pay rent suspended?
- premises are destroyed, so long as the tenant didn't cause the damage
- landlord completely or partially evicts the tenant
- landlord materially breaches the lease
67
what is the implied covenant of quiet enjoyment?
tenant can withhold rent when the landlord takes actions that make the premises wholly or substantially unsuitable for their intended purposes, and the tenant is constructively evicted
68
what are the four elements of constructive eviction?
1. premises were unusable for their intended purposes
2. tenant notifies landlord of the problem
3. landlord does not correct problem
4. tenant vacates after reasonable amount of time has passed
69
what is the implied warranty of habitability?
landlord has an obligation to maintain the property such that it is suitable for residential use
concerned with health and safety
does not apply to commercial leases
70
what is the duty to avoid waste?
doesnt have to be expressed in a lease in order to apply
tenant has a duty not to commit affirmative or permissive waste but may commit ameliorative waste with permission of the landlord
71
what is the duty to repair?
landlord is presumed to be responsible for repairs, but tenant must notify
not typically presumed for commercial properties
72
what is the duty to mitigate damages?
maj: landlord must make a reasonable effort to re-rent property
min: doesn't have to mitigate - more common in commercial leases
73
what are the landlord's requirements under the duty to mitigate?
landlord must treat lease as if it was vacant
if landlord doesnt make diligent efforts, tenant is released of duty to pay
if rent received from new tenant is lower, landlord is entitled to difference in rent
doesnt have to accept an unacceptable replacement
74
how does a landlord deal with a holdover tenant?
can evict
can continue the relationship through a periodic tenancy
75
what is the duty to deliver possession?
maj: landlord must deliver actual possession - physical possession
min: landlord is only required to deliver legal possession
76
what must a landlord control for quiet enjoyment?
common areas
nuisance-like behavior of other tenants
77
what doesnt a landlord have to control for quiet enjoyment?
off-premises third party actions
78
What is tenant's responsibility under tort liability?
tenant owes a duty of care to invitees, licensees, and foreseeable trespassers
79
what is landlord's tort liability under common law?
responsible in negligence for latent defects about which the tenant has not been warned
responsible for faulty repairs completed by the landlord negligently
responsible for negligence that causes injuries in common areas of the property
80
what is landlord's liability under the modern trend?
general duty of reasonable care
81
what is an assignment?
complete transfer of tenant's remaining term
82
what is a sublease?
transfer for less than the entire duration of the lease
83
who is responsible for rent in an assignment?
landlord can collect rent from the og tenant because privity of contract, or subsequent tenant because privity of estate
84
who can landlord collect rent from in a sublease?
only the tenant because privity of contract and estate
85
how does a tenant know if they have permission to assign or sublease?
if silent - go forth
if requires permission :
- maj: only can deny for a commercially reasonable reason
- min: may deny at landlord's discretion
86
can a landlord transfer their interest?
yes, without tenant's permission. but new landlord is bound by terms of the lease
87
what are the two stages of a land sale contract?
1: contract
2: deed
88
Who bears liability during a land sale contract?
contract stage: liability is based on contract terms
deed stage: liability based on deed warranty
89
what is the doctrine of merger in a land sale contract?
covenants under the contract are merged into the deed and any remedy will flow from the dead
90
how do land sale contracts satisfy the SOF?
1. must be in writing
2. must be signed by the party to be charged
3. must include essential terms: parties, description, and price and payment info
91
what are the land sale contract exceptions to the SOF?
part performance
detrimental reliance
92
what is part performance?
part performance by either seller or buyer is evidence that contract existed. look for:
- payment in part or full
- possession
- improvements by purchaser
93
what is detrimental reliance?
applies where a party has reasonably relied on the contract and would suffer hardship if the contract were not enforced
94
what is marketable title?
title that is free from an unreasonable risk of litigation
every land sale contract includes an implied covenant of marketable title
judged by a reasonable buyer standard
95
what would render a title unmarketable?
- titled acquired by adverse possession that hasn't been quieted
- private encumbrances - (mortgage, etc.)
- violation of a zoning ordinance
defects must be cured before closing
96
what happens if there are delays in marketable title?
unless the contract or parties notify, time is not of the essence
if time is not of the essence, the failure to close on the date set for close may be a breach of the contract, but is not grounds for rescission of the contract
specific performance is still available
97
what is the implied warranty of fitness or suitability?
applies to defects in new construction
in maj jx - both initial homeowner-buyer and subsequent purchasers may recover damages
in min jx - only og buyer can enforce warranty
suit must be brought within a reasonable time after discovery
98
what is the duty to disclose defects?
duty on the seller to disclose to the buyer all known, physical and material defects
concerned with latent or hidden defects
material defect must substantially affect the value of the home
general disclaimers will not satisfy
99
what happens in a merger under a land sale contract?
after closing, obligations contained in the contract are merged into the deed
if there was something important in the contract that is not in the deed, too bad cause of action is lost
100
what are the seller's remedies on a land sale buyer's breach?
damages - difference between contract price and market price
rescission - can sell to someone else
specific performance
101
what are the buyer's remedies for land sale seller's breach?
damages - difference between contract price and market value on day of breach
rescission - returns payment and cancels contract
specific performance
102
who bears risk of loss if damage or destruction of property?
maj: buyer holds equitable title between contract and closing - buyer is responsible
min: risk of loss is on the seller until closing
103
whats adverse possession?
allows a person in unlawful possession to acquire good title after a statutorily determined amount time. until the person acquires good title, they're a tresspasser
104
what are the elements of adverse possession?
Hostile
Open
Continuous
Exclusive
Actual
Notorious
105
what is required to meet the continuous element of adverse possession?
not literal - seasonal or infrequent will suffice if it is consistent with type of property being used
tacking is allowed to meet the continuous requirement
106
what is required for open and notorious?
can't be hidden, anyone must be able to tell - trespasser must use property as if it was their own
use must be such that it would put a reasonable true owner on notice of the adverse use
107
what is the hostile requirement?
must be against the interest of the true owner
108
what is the exclusive requirement of adverse possession?
can't share possession with the true owner; can share possession with a co-trespasser
109
what is the scope of adverse possession?
generally traces legal boundaries of property
includes subsurface rights
110
what is a deed?
a legal instrument that transfers ownership of real property
must be delivered and accepted for it to be valid
111
how is delivery of a deed satisfied?
ask whether the grantor had the present intent to transfer the property - physical transfer is not required
112
how is acceptance of a deed satisfied?
its generally presumed
113
what must a deed contain?
must identify the parties and must be signed by the grantor
must include words of transfer
must include a sufficient description of the property
114
what is required for execution of a deed?
grantor's signature is required for execution to be effective
grantee is not required to sign and doesnt need to be witnessed or notarized
115
what does it mean to record a deed?
publicly register your deed to give notice
116
what is the common law rule for recording?
first in time, first in right
117
what is the scope of recording acts?
deeds
mortgages
leases
options
judgments affecting title
other instruments creating an interest in land - easements or covenants
118
who is covered by recording acts?
subsequent purchasers
119
who isnt protected by recording acts?
adverse possessors
grantees who acquire by gift, intestacy, or devise
120
what are the three types of notice for recording?
actual - subsequent purchaser has real, personal knowledge
constructive - prior interest is recorded
inquiry - when a reasonable investigation would have disclosed existence of prior claims
121
when might a person be put on inquiry notice?>
dude on the land - when there is someone else living on the land
mentioned interest - mentioned in the deed
122
what is a race statute?
first to record wins, even if the subsequent purchaser had notice of a prior, unrecorded conveyance
"first recorded" or "first to record"
123
what is a notice statute?
a subsequent purchaser wins without notice of a prior, unrecorded conveyance
"in good faith" or "without notice"
124
what is a race notice statute?
subsequent purchaser wins if: acquired without notice and record first
125
what is the shelter rule?
a person who takes from a bona fide purchaser protected by the recording act has the same rights as her grantor
126
what is estoppel by deed?
arises when a grantor conveys land the grantor doesnt own
if a grantor subsequently acquires title to the land, grantor is estopped from trying to repossess on ground that they didnt have title when made the original conveyance
127
what are the three kinds of deeds?
general warranty deed
special warranty deed
quitclaim deed
128
what is a general warranty deed?
grantor warrants title against all defects, even if grantor didn't cause them
greatest amount of protection
includes 6 implied covenants
129
what are the three present implied covenants?
covenant of seisin
covenant of the right to convey
covenant against encumbrances
130
what is the covenant of seisin?
warrants the deed describes the land in question
131
what is the covenant of the right to convey?
warrants that the grantor has the right to convey the property
132
what is the covenant against encumbrances?
warrants that there are no undisclosed encumbrances on the property that could limit its value
133
what are the three implied future covenants?
covenant of quiet enjoyment
covenant of warranty
covenant of further assurances
134
what is the covenant of quiet enjoyment?
grantor promises that the grantee's possession will not be disturbed by a 3rd party claim
135
what is the covenant of warranty?
grantor promises to defend against future claims of title by a third party
136
what is the covenant of further assurances?
grantor promises to fix future title problems
137
what is a special warranty deed?
grantor warrants against defects only caused by the grantor
middle amount of protection
includes same 6 implied covenants as general warranty deed, but only as they relate to the grantor
138
what is a quitclaim deed?
makes no warranties as to the health of the title
least amount of protection
139
what is escheat?
if a decedent dies without a will and without heirs, the decedent's property goes to the state
140
what is ademption?
a devise of property that fails because it is not in the testator's estate at death
gift fails and intended recipient gets nothing
141
what is ademption by satisfaction?
if the testator gives the intended beneficiary the promised gift during life, then the beneficiary keeps the gift
142
what is lapse?
the intended beneficiary predeceases the testator. traditionally, the gift fails and would fall to the residuary gift
143
what is anti-lapse?
prevents a gift from failing because an intended recipient predeceased the testator
in most states to qualify, predeceasing beneficiary must be a relative of testator who dies
144
what is exoneration?
allows beneficiary of specifically devised real property to use estate's remaining assets to pay off any remaining encumbrances on that property
145
what is ademption by extinction?
when the gift is not in the testator's estate at death, but the intended recipient hasnt received it yet
146
what is a wild deed?
a recorded deed that falls outside of the chain of title. is considered to not be properly recorded and consequently fails to give constructive notice
147
what is a mortgage?
a security device used to secure payment of a debt
148
what are the two components of a mortgage?
the note - promise to repay the loan
mortgage - instrument that provides security for the note
149
what happens if the borrower defaults on the loan?
the lender can force a foreclosure sale to satisfy the outstanding debt
150
mortgagor
the borrower
151
mortgagee
the lender
152
what is a purchase money mortgage?
a person take a loan for the purpose of purchasing property
153
what is a future advance mortgage?
a line of credit used for home equity, construction, business, and commercial loans
often referred to as a second mortgage
154
how does a lien state work?
treats a mortgage as a lien that does not sever a joint tenancy
155
how does a title state work?
a mortgage severs a joint tenancy and converts it into a tenancy in common
156
what is a deed of trust?
operates like a mortgage but uses a trustee to hold title for the benefit of the lender
157
what is an installment land contract?
seller finances the purchase; seller retains title until the buyer makes the final payment on an installment plan
158
what is the traditional rule for an installment land contract?
if the buyer breaches, the seller keeps the installment payments made and teh property
159
what is the modern approach for installment land contracts?
- some treat installment contracts as a mortgage, requiring the seller to foreclose
- some give the buyer the equitable right of redemption to stop a foreclosure slae
- some allow the seller to retain ownership, but require some restitution
160
what is an absolute deed
the mortgagor transfers the deed to the property instead of conveying a security interest in exchange for the loan
- if this is a mortgage disguised as a sale, the borrower must prove a mortgage-like agreemetn by clear and convincing evidence
- parol evidence is admissible
161
what is a conditional sale and repurchase?
the owner sells property to the lender who leases the property back to the owner in exchange for a loan
the lender gives the owner the option to repurchase after the loan is paid off
162
what is the liability of the mortgagor (borrower) in a transfer?
- mortgagor may transfer the property by deed (sale), by will, or by intestate succession
- mortgagor remains personally liable after the transfer unless:
---lender releases mortgagor or
---lender modifies the transferee's obligation
163
what is a due-on-sale clause?
lender has the option to demand immediate full payment upon transfer
think of it as an acceleration clause that allows lender to speed up payment when property is transferred
164
what is a due-on-encumbrance clause?
an acceleration clause when the mortgagor obtains a second mortgage or otherwise encumbers the property
165
what is the liability of the subsequent transferee?
either they assume the mortgage or take subject to the mortgage
166
what does it mean to assume the mortgage?
upon default, the buyer/transferee assumes the mortgage, the transferee is personally liable for the mortgage
both the original mortgagor AND the transferee are liable upon default
in most jurisdictions, this does not need to be in writing
167
what does it mean to take subject to the morgage?
transferee is not personally liable upon default
if the deed is silent or ambiguous as to liability, the transferee is considered to have taken title subject to the mortgage
168
when can the lender take possession in a lien theory state?
they cant take possesion prior to foreclosure because the lender has a lien until foreclosure is complete
mortgagor is the owner up until foreclosure
169
when can the lender take possession in a title theory state?
lender technically has the right, as holder of title, to possess the property at any time
170
when can the lender take possession in an intermediate title theory state?
a minority of jurisdictions modify the title theory
the mortgagor retains title until default, at which point the lender can take possession
171
how does waste impact foreclosure?
a homeowner cannot commit waste that will impair the lender's security interest
172
what is the equity of redemption?
a common law right held by the mortgagor to reclaim title and prevent foreclosure upon the full payment of the debt
the mortgagor must exercise this right before the foreclosure sale
173
what is a deed in lieu of foreclosure?
rather than face foreclosure, the mortgagor can convey the property to the lender in exchange for releasing her from any outstanding debt
174
what is clogging the equity of redemption?
to clog is to create terms that make it harder for a borrower to exercise equity of redemption
175
What is a foreclosure?
a forced sale of an asset to pay off a debt
176
does the mortgagee have to give notice?
yes, before foreclosing
177
what are the two methods of foreclosure?
judicial sale (under supervision of court)
power of sale (private sale by lender)
178
what happens if there is a deficiency in the value owed?
the mortgagor is responsible for the remaining value. the court can issue a deficiency judgment for the remaining balance
179
what is a senior interest?
interests acquired before the interest that is being foreclosed. survives the foreclosure
180
what are junior interests?
interests acquired after the interest that is being foreclosed. they are extinguished by the foreclosure
181
what is the first in time rule re:interests?
surviving debts are satisfied chronologically
182
what is the purchase money mortgage exception?
mortgage given to a lender in exchange for a loan to buy real property
the purchase money mortgage has priority over mortgages and liens created by or against the purchaser prior to the purchaser's acquisition of the porperty
183
what is the recording act exception?
a senior mortgage may sometimes not get recorded.
a junior mortgage that satisfies the requirements of the state recording act may take priority over the unrecorded senior mortgage
184
what is a subordination agreement between mortgagees?
a senior mortgagee cna agree to subordinate its interest to a junior interest
185
what are mortgage modifications?
a senior mortgagee who enters into an agreement with the landowner to modify the mortgage by making it more burdensome subordinates its interest, but only as to the modification. original mortgage otherwise remains superior
if a senior mortgagee releases a mortgage and at the same time replaces it with a new mortgage, the new mortgage retains the same priority as the og except to the extend that is materially prejudicial to a jr. interest
186
what is after acquired property?
a mortgagor may grant a mortgagee rights to property that they acquire in the future
the mortgage must clearly state that it applies to after acquired property
upon foreclosure an interest in after-acquired property is junior to a purchase money morgage
187
what are the effects of foreclosure on the mortgagor?
foreclosure eliminates mortgagor's interest in the property
except in cases of statutory redemption where the state allows mortgagor to redeem property after foreclosure. enables homeowner to nullify
188
what effects does a foreclosure have on the purchaser?
the purchaser of property at a foreclosure take the property free and clear of any jr mortgage and subject to any sr. mortgage, BUT the purchase may be subject to the mortgagor's statutory right of redemption, if one exists
189
what is an easement?
right held by one person to make use of another's landa
190
what is a servient estate?
land burdened by the easement
191
what is the dominant estate?
land benefitted by the easement
192
what is an affirmative easement?
holder has the right to do something on someone else's property
193
what is a negative easement?
holder has the right to prevent someone from doing something on their land
must be express - a negative right will RARELY be created by circumstances
194
what is an easement appurtenant?
easement is tied to the use of the land
195
what is an easement in gross?
easement benefits the holder personally
no dominant estate - only a servient estate
196
what are the methods for creating an easement?
express and implied
197
what are express easements?
subject to the SOF
can be created by grant or reservation
198
what is an easement by reservation?
created when a grantor conveys land but reserves an easement right in the land for the grantor's use and benefit
199
what are implied easements?
informal - arise out of factual circumstances
transferable
not subject to SOF or recording statutes
200
what are the four kinds of implied easements?
easement by necessity
easement by implication
easement by prescription
easement by estoppel
201
what is an easement by necessity?
created only when property is virtually useless
202
what are the conditions for an easement by necessity?
common ownership: dominant and servient estates were owned in common by one person; and
necessity at severance: when the estates were severed into two separate estates (severance), one of the properties became virtually useless without an easement
necessity is a strict conception
ends when it is no longer necessary
203
what is an easement by implication?
created by an existing use on a property
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what conditions must be met for an easement by implication?
common ownership: a large estate owned by one owner
before severance: the owner of the large tract uses the land as if there's an easement on it.
quasi-easement: an owner cant have an easement over her own land
after severance: use must be continuous and apparent at the time of secerance
necessity: use must be reasonably necessary to be dominant estate's use and enjoyment
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what is an easement by prescription?
think of acquiring an easement through adverse possession
all the same except easement by prescription is about use and there is no exclusivity requirement
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how is an easement by estoppel created?
starts with a permissive use (license)
continues when the second neighbor relies on the first neighbor's promise
then the first neighbor withdraws permission
if the reliance was detrimental to the second neighbor, the first neighbor is estopped from withdrawing permission, effectively creating an easement
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what is the scope of an express easement?
determined by terms when its created
ambiguous terms - consider intent of original parties
changes in use are tested under a reasonableness standard
if use exceeds scope, its considered a trespass
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what is the scope of implied easements?
determined by the nature of the prior use or necessity
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who has the duty to maintain the property subject to the easement?
owner of the easement except where parties can contract
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How is an easement terminated by release?
holder of the easement expressly releases it
must be in writing
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how is an easement terminated through merger?
if the owner of the easement acquires fee title to the underlying estate - easement then merges into the title
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how is an easement terminated by a abandonment?
owner acts in an affirmative way that shows a clear intent to relinquish the right
requires more than non-use or statemetns
usually need non-use plus an act demonstrating an intent to abandon
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what is prescription?
the holder fails to protect against the servient estate owner's interference for the statutory period
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how is an easement terminated by estoppel?
the servient owner changes position to his detriment in reliance on statements or conduct of the easement holder that the easement is abandoned
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what is profit?
right to enter another's land and remove specific natural resources
operates similarly to an easement, but profits cannot be created by necessity
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what is a license?
a revocable permission to use another's land
only binds the licensor
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what is a real covenant?
a promise concerning the use of the land that runs to successors to the promise
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what does it mean to "run with the land"?
an agreement that binds a successor
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benefit of a covenant?
ability to enforce the covenant
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burden of the covenant?
being subject to it (i.e. bound by it)
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what are the requirements for a covenant to run?
writing
intent
touch and concern
notice
privity
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what is touch and concern?
benefit or burden of the covenant must affect both parties as owners of the land
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what is a negative covenant?
a restriction on use will usually touch and concern because they restrict what you can do with your land
look out for unenforceable covenants - they dont touch and concern
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what is an affirmative covenant?
a covenant to pay money
traditionally - did not touch and concern
modern trend - say that fees to touch and concern
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what kind of notice is required to run a real covenant?
either actual or constructive notice
inquiry notice may suffice for an equitable servitude
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what is horizontal privity?
privity of estate, where the estate and covenant are contained in the same instrument
original parties must be in horizontal privity to run burden to a successor
don't need horizontal privity to run a benefit
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what is vertical privity?
relationship between the original party to the agreement and their successor
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what is strict vertical privity?
successor must take the original party's entire interest - necessary to run the burden of the covenant to the successor
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what is relaxed vertical privity?
successor takes an interest that is carved out of the original party's interest - sufficient to run benefit of the covenant to the successor
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what is an equitable servitude?
operates like a real covenant but has easier requirements
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what are the requirements of an equitable servitude?
writing
intent
touch and concern
notice - actual, constructive, or inquiry
NO privity requirement
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what is an implied reciprocal servitude?
equitable servitude that is implied and doesnt have to be in writing
usually comes up in planned communities
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how are equitable servitudes created?
developer must intend to create covenant on all plots in the subdivision
promises must be reciprocal
must be negative rather than positive (restriction on owners use)
successor must be on notice and
must be a common plan or scheme
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how does an equitable servitude terminate?
like an easement - merger, release, etc.
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what is the changed circumstances doctrine?
look for situations where the restriction no longer makes sense due to drastic changes in the surrounding area since the restriction was put in place
ASK: does the property subject to the restriction still retain some benefit from the restriction?
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what are fixtures?
tangible personal property that is attached to real property in a manner that is treated as party of the real property
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what is a private nuisance?
a substantial and unreasonable interference with another individual's use or enjoyment of their property
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how is the substantial element of private nuisance met?
one that would be offensive, inconvenient, or annoying to an average person in the community
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how is the unreasonable element of private nuisance met?
the injury outweighs the usefulness of the defendant's actions
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what is a public nuisance?
unreasonable interference with the health, safety, or property rights of the community
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how can a private party bring a public nuisance suit?
must show that they suffered a different kind of harm than the rest of the community
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what are riparian rights?
hols that landowners who border a waterway own the rights to the waterway. right depends on whether the landowner is located near the water
share the right to reasonable use of the water, such that one riparian is liable to another for interference with use
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what is prior appropriation?
first in time first in right - first person to use the water, regardless of where their land is located has the rights to the water
beneficial use - user must put the water to a beneficial use. any productive use satisfies
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what are lateral support rights?
a neighboring landowner cannot excavate so as to cause a cause in on an adjacent owner's land
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what are the standards for lateral support rights?
did the neighbor's buildings contribute to the cave in? if so - apply negligence to the one excavating
if they didn't contribute - strict liability
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