PROPERTY Flashcards
(95 cards)
1
Q
elements of adverse possession
A
- actual entry of the land
- possess the land
- exclusive possession
- uninterrupted, continuous use (not constant)
- hostile/adversely
- all under the statute of limitations
2
Q
interruptions to statute of limitations under adverse possession
A
- if O kicks out APsr
- O files suit against APsr
- close or fence the land in a way that bars the APsr from entry
3
Q
hostile element for adverse possession
A
- does not require that the possessor demonstrate ill will
- needsd to possess the land in contradiction to the owner’s interest and act as the owner
- possessor enters the land without permission from O
4
Q
3 different views of hostile element
A
- don’t care if it was in bad faith when APsr came onto land, just that they did it… open and notorious is good enough
- has to be in good faith
- has to be in bad faith
5
Q
purpose of AP
A
- quieting titles - MOST IMPORTANT - to punish O for sleeping on his right
- assuring maximum use of land
- encouraging the rejection of state claims
6
Q
governmental land and AP
A
- most statutes prevent AP claims against land held by government for public use
- when land is not held for public use statutes vary
7
Q
visible open and notorious for AP
A
- possession must be sufficiently apparent to put the true owner on notice that a trespass is occurring
- gives O the opportunity to stop the AP
- SC held that lack of actual knowledge is not a defense
8
Q
uninterrupted use for AP
A
- intermittent periods of occupancy are not sufficient BUT constant use is not required so long as possession is of a type that the usual owner would make
- seasonal use sufficient
9
Q
statute of limitations for AP
A
if O fails to sue an APsr within the time allowed by statute of limitations, APsr may acquire title
10
Q
disability in AP
A
- if O is under disability the SL for AP does not run if APsr came onto land while disability was present
- SL is not tolled or suspended if O’s disability arises after APsr comes onto land
11
Q
common disabilities for AP
A
- mental illness
- minority status
- imprisonment
- coma
12
Q
squatters
A
do not acquire title by AP because no formal intention to claim the land
13
Q
easement by prescription elements
A
- actual use
- continuous without interruption
- open and notorious
- hostile
- for period of statute of limitations
- exclusive - SPLIT OF AUTHORITY - prove that X was the only one using the easement
14
Q
affirmative easement
A
gives its holder the right to do something on another’s land (ST)
15
Q
easement by implication
A
- implied from prior or existing use
- arise by necessity, quasi-easements or by reference to a plat
16
Q
servitudes (list)
A
- easements
- real covenants
- licenses
- profits
- equitable servitudes
17
Q
color of title for AP
A
- where possessor has an invalid document that suggests he has a recorded claim that transfers him legal ownership
- shorter SL - certain states allow APsr claiming under color of title to have shorter SL
- extends to boundaries of document, not just where APsr possessed
18
Q
courts will imply easement by implication if…
A
- the previous use was readily apparent
- the parties reasonably expected the use to survive division because it is reasonably necessary to B’s continued use and enjoyment of his lot
19
Q
necessity majority/minority
A
- majority - require a showing of reasonable necessity to imply easement by necessity
- minority - strict necessity… if there is another way to and from the landlocked parcel, it must be utilized
20
Q
quasi easement elements
A
- unity of title - common ownership at time when estate was transferred
- severance
- apparent and continuous use
- land was transferred
21
Q
easement by reference to a plat
A
where conveyance of land describes the property by reference to a plat upon which a street is depicted, an easement is implied over the entire street for the benefit of the lots represented in the plat
22
Q
appurtenant easement
A
- benefits the easement holder in his physical use or enjoyment of the his own land
- 2 parcels of land must be involved
- transferred automatically with DT regardless of whether it is mentioned in the transfer
23
Q
dominant tenement
A
benefitted parcel which derives an advantage thanks to the easement
24
Q
servient tenement
A
burdened parcel which suffers the imposition of the easement
25
easement in gross
- confers upon the holder only a personal or commercial gain, not linked to the easement holder's use and enjoyment of the land
- only involves the ST because 1 parcel of land is involved
cannot be transferred unless commercial
26
negative easement
- entitles holder to compel the O of ST to refrain from doing something that would otherwise be permissible
- disfavored
- must be crated expressly in signed writing
27
negative easements may be acquired for...
1. light (most common)
2. air
3. streamwater
4. in CA scenic views
28
scope of easement
- reasonable change permitted to express easement, unless limited in some way
- right to improve easement - DT has right to improve so long as it does not result in overburden to ST
- right to permit others to use
- limits to changes by D or S estate
29
termination of easement
- estoppel
- necessity ends
- destruction of ST
- condemnation of ST by governmental entity
- release
- abandonment
- merger doctrine
- prescription
30
merger doctrine for termination of easements
when title to the easement and title to the ST become vested in the same person
31
abandonment for termination of easements
- mere nonuse is insufficient to terminate
| - easement holder must demonstrate by physical action the intent to never make use of the easement
32
prescription for termination of easements
when the S owner interferes with the easement in accordance with the elements of adverse possession
33
license
- freely revocable privilege to enter another's land for some narrow purpose
- not subject to statute of frauds
- revocable at the will of the licensor
34
profit
- entitles holder to enter the ST and take from it the soil or some other resource such as minerals
- shares all the rules of easements
35
real covenants
- promise to do or not to do something related to the land
- covenant becomes real covenant when it is capable of running with the land (able to bind the successors to the originally contracting or covenanting parties)
36
negative/restrictive covenants
- promise to refrain from doing something related to land
- most covenants are restrictive and used alongside negative easements
- promise not to build for commercial purposes, etc.
37
affirmative covenants
- promise to do something that refers to the land
| - promise to maintain a common fence, pay annual dues, etc.
38
covenants run with the land when...
1. does the burden of A's promise to B run from A to A-1? harder for the burden to be decided so start there
2. does the benefit of A's promise to B run from B to B-1? easier for benefits to run than burdens
39
burden for covenant to run with the land analysis
1. writing - the original promise between A & B must have been in writing
2. intention to run - the original parties must have intended that the promise would bind successors
3. touch and concern the land
4. horizontal and vertical privity
5. notice
40
notice for covenant to be real
1. actual notice - when A-1 took she was literally informed of the existence of the covenant
2. inquiry notice - if the appearance of the premises should have given notice of the presence of the covenant
3. record notice - attributable to parties on the basis of the publicly recorded documents
41
touch and concern the land for real covenants
- must affect both parties leal relations as land owners and cannot just be personally
- can't be benefit in gross
- must burden burdened land and benefit benefitted land
42
intention to run for real covenants
- modern rule - no magic words, just have to make intent clear
- CL rule - had to use "assigns"
43
horizontal privity for real covenants
- relationship between original parties A & B requiring that A & B were in succession of estate at the time of promise
- hard to get because not always likely that A bough the burdened land from B or vice versa
44
vertical privity for real covenants
- easier to establish
- there must be a non-hostile relationship between A & A-1
- not present if A-1 acquired interest through adverse possession
45
succession of estate for horizontal privity under real covenants
- when the promise was made A & B were in a grantee-grantor relationship
46
english view of horizontal privity for real covenants
- demands landlord tenant relationship
47
3rd Restatement of Property on horizontal privity for real covenants
- privity of estate not required
| - very few jurisdictions have fully adopted this
48
grantor-grantee "instantaneous view" on horizontal privity for real covenants
- established by a conveyance from one party to the other at the time the covenant is made
49
remedy for affirmative easements
injunction or damages
50
remedy for negative easements
injunction or damages
51
remedy for real covenants
damages
52
remedy for equitable servitudes
injunction
53
tacking for adverse possession
- to satisfy given statutory period, one adverse possessor may tack on to his time with the land his predecessor's time so long as there is privity
- privity is satisfied by any non-hostile nexus between the possessors, such as descent, contract, deed or will
54
ouster for adverse possession
- wrongful conduct that defeats privity and does not permit tacking for purposes of adverse possession
55
equitable servitude
- promise that equity will enforce against successors and accompanied by injunctive relief
56
elements for equitable servitudes
1. writing
2. intent between originally promising parties
3. touch and concern the land - affects the parties in their legal relations as landowners
4. notice
57
implied equitable servitude or common scheme doctrine
- arises when subdivider conveys lots through deeds that contain a common restriction but later conveys one or more of the remaining lots through deeds containing no such restriction
- MAJORITY - will allow ES to be implied even in the absence of writing
- minority - adhere strictly to the statute of frauds and require that any servitude be in writing to be enforceable
58
example of implied equitable servitude
- subdivider conveys lots through deeds that contain common restriction but later conveys 1 or more of the remaining lots through deeds containing no such restriction
59
equitable defenses to enforcement of an equitable servitude
- changed conditions doctrine - a party seeks to be released from the terms of an ES because of changed conditions... must convince the court that the change complained of is so pervasive that the entire area's essential character has been irrevocably altered
60
easement implied by prior use elements
1. common owner of 2 or more properties used one parcel to gain access to the other
2. such prior use was apparent, continuous, visible and permanent
3. continued use of the servient parcel is reasonably necessary for the use and enjoyment of the dominant estate
61
easement by necessity
1. unity of title
2. severance
3. necessity - split of authority
62
ways to terminate real covenants
1. express real covenant may contain provision for its own expiration
2. may be released by holder
3. ends by merger when title to both properties come into the same hands
4. by prescription
5. by abandoment
6. by estoppel
7. when SE is conveyed to a bona fide purchaser without notice of real covenant
8. when ST is condemned by government
63
joint tenancy subject to 4 unities
1. unity of time
2. unity of title - taken by same instrument
3. unity of interest - same % or fractional interest in property
4. unity of possession - possess the whole
64
preferred concurrent estate under CL
joint tenancy with right of survivorship
65
preferred concurrent estate under modern
unless explicitly stated as joint tenancy with right of survivorship, tenancy in common is preferred
66
tenancy in common
- may freely convey to another
- inheritable, devisable and alienable
- when T dies, his interest passes to heirs
67
joint tenancy with right of survivorship
- when JT dies, the interests of the remaining JT are enlarged proportionately
- a JT may freely convey his individual interest and sever the JT, creating a TIC between grantee and remaining tenants
68
tenancy by the entirety
- limited to married couples, includes right of survivorship but cannot be severed unilaterally
- only severable by death, divorce, mutual agreement
69
conveyance to unmarried couples of tenancy by entirety
- if A and B are conveyed land as tenants by the entirety but are nor married, courts will either interpret the arrangement as TIC or JTWROS
- split of authority
70
executory limitations/interests first used
1700
71
executory interest
- a future interest
- in someone other than grantor
- having 1 or more of the following
* directly follows a fee simple
* divests (cuts short) the prior estate
* directly follows possession by the grantor
72
remainders
- can never follow fee simple
- can never divest prior estate
- can never directly follow possession by the grantor
73
future interest for grantor/grantee in fee tail
- grantor = reversion
| - grantee = remainder
74
future interest for grantor/grantee in life estate
- grantor = reversion
| - grantee = remainder
75
future interest for grantor/grantee in FSA
- grantor = none
| - grantee = none
76
future interest for grantor/grantee in FSD
- grantor = possibility of reverter
| - grantee = none
77
future interest for grantor/grantee in FSCS
- grantor = right of entry (power of termination)
| - grantee = none
78
X and Y have alt. CRs if...
1. X has CR AND
2. X's remainder is followed immediately by Y's future interest, which is also a remainder and one that becomes present possessory in exactly those circumstances in which X's remainder will not become present possessory
79
X's remainder is a VR if...
1. X is a person born and ascertainable AND
| 2. no condition other than expiration of the preceding estate must be met before X's interest becomes present possessory
80
X's remainder is CR if...
1. X is unborn or unascertainable OR
| 2. a condition must be satisfied before X may come into possession
81
types of VRs
1. vested remainder vested indefeasibly in an identifiable person without condition precedent and without being subject to EI or CS
2. VR subject to open
3. VR subject to divestment
4. VR subject to EL
82
RAP requires
1. that an interest vest AND
| 2. that is vest soon enough
83
RAP in general
- permits interests to be unvested for a limited period of time
- no interest is good, unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest
84
RAP is open to...
1. CR
2. VRO
3. EI
85
language that creates EI
COMMA BUT IF
86
merger doctrine for future interests does not apply when...
- there is an intervening interest
| - O to A for life, then to B for life LATER O conveys his reversion to A
87
rule of cy pres
- where court can reform the language to comply with RAP, can change first child to reach age 25 to 21
88
executory interest that does not violate RAP
- an EI that is certain to become possessory is exempted by RAP because it is not contingent
- O to A and his heirs 25 years from now
89
O > A and his heirs upon the passage of 25 years
- split of authority
- some courts construe the passing of 25 years as a certainty and therefore hold that A's interest is immediately vested
- some courts hold that A has EI that is void under RAP
90
duty to maintain easement
- DT always has the duty to maintain easement unless grant states it as duty to ST
- DT can make reasonable changes as long as there is no over burden on ST
91
right to relocate under scope of easement
- easement cannot be relocated unilaterally
| - both DT and ST must agree
92
improvements for concurrent estates
- credited on the final sale of property but the enhancement value is credited, not the cost of improvments
- majority rule - lesser of the actual cost of the improvements or the enhancement value
93
necessary repairs for concurrent estates
- repairer gets credit when the property is sold
| - add cost of repairs to sales price, divide that # by as many shares as there are co-owners
94
partition in kind
- physically dividing the property
| - preferred to partition by sale
95
partition by sale
- ordering a sale of the property and dividing proceeds
| - not as preferable to partition in kind
