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Flashcards in Property Deck (177):
1

Fee simple absolute: Language toFee simple absolute:F create

"to A and his heirs"; "to A"

2

Fee simple absolute: Duration

Absolute ownership of potentially infinite duration

3

Fee simple absolute: transferability

Devisable, descendible, alienable

4

Fee simple absolute: future interest

None

5

Fee Tail: Language to create

"To A and the heirs of his body"

6

Fee Tail: Duration

Lasts only as long as there are lineal blood descendants of grantee

7

Fee Tail: transferability

Passes automatically to grantee's lineal descendants

8

Fee Tail: Future interest

Reversion (if held by grantor); Remainder (if held by third party)

9

Fee simple determinable: language to create

"To A so long as..."; "to A until...'; "to A while..."

10

Fee simple determinable: Duration

Potentially infinite, so long as event does not occur

11

Fee simple determinable: Transferability

Alienable, devisable, descendible, subject to condition

12

Fee simple determinable: Future interest

Possibility of reverter (held by grantor); if state condition is violated forfeiture is automatic

13

Fee simple subject to condition subsequent: language to create

"to A, but if X event happens, grantor reserves the right to reenter and retake" Must carve out right of reentry.

14

Fee simple subject to condition subsequent: Duration

Potentially infinite so long as the condition is not breached and, thereafter, until the holder of the right of entry timely exercises the power of termination

15

Fee simple subject to condition subsequent: Transferability

Alienable, devisiable, descendible, subject to condition

16

Fee simple subject to condition subsequent: Future interest

Right of entry/power of termination (held by grantor); Called right of reacquisition in NY; Does not automatically terminate, must be cut short at the grantor's option if the stated condition occurs

17

Fee simple subject to an executory limitation: Language to create

"To A, but if X event occurs, then to B"

18

Fee simple subject to an executory limitation: Duration

potentially infinite so long as stated contingency does not occur

19

Fee simple subject to an executory limitation: Transferability

Alienable, devisable, descendible, subject to condition

20

Fee simple subject to an executory limitation: Future Interest

Executory interest (held by third party); Automatically forfeited in favor of party other than grantor

21

Life estate: language to create

"To A for life"; "To A for the life of B"

22

Life estate: Duration

Measured by life of some transferee or by some other life (pur autre vie)

23

Life estate: Transferability

Alienable, devisable, and descendible if pur autre vie and measuring life is still alive

24

Life estate: Future interest

Reversion (grantor); Remainder (third party)

25

Definition: Devisable

Can pass by will

26

Definition: Descendible

Can pass by statutes of intestacy

27

Definition: Alienable

Transferable inter vivos

28

Fee simple absolute: distiniguishing characteristics

(1) Absolute ownership of potentially infinite duration
(2) Devisible, descendible, alienable
(3) no accompanying future interest

29

Defeasible Fees: two important rules of construction

(1) Words of mere desire are insufficient ("for the purpose of", "with the hope of")
(2) Absolute restraints on alienation are void (not linked to any reasonable time limited purpose)

30

Life tenant's entitlements (life estate)

(1) all ordinary uses and profits from the land
(2) must not commit waste

31

Voluntary or affirmative waste

Overt conduct that causes a drop in value (willful destruction)

32

Four exceptions where voluntary waste is allowed (PURGE)

(1) PU: Prior use (land was for exploitation)
(2) R: Repairs (can use natural resources for repairs and maintenance)
(3) G: Grant
(4) E: Exploitation (land is suitable only to exploit; see, e.g., a quarry)

33

Permissive waste or neglect

Land falls into disrepair

34

Life tenant's obligations regarding permissive waste or neglect

(1) maintain the premises in reasonably good repair
(2) Pay all ordinary taxes on the land

35

Ameliorative waste (MBE)

Life tenant must not engage in acts that will enhance the property's value unless all future interest holders are known and consent

36

Ameliorative waste Life tenant (NY)

Life tenant may make reasonable improvements unless remaindermen object

37

Possibility of reverter

Fee simple determinable

38

Right of entry/power of termination

Fee simple subject to condition subsequent

39

Reversion

Future interest arising in a grantor who transfers an estate of lesser quantum than she started with (other than FS determinable or subject to condition subsequent)

40

How to determine third party's future interest

(1) distinguish vested remainders from contingent
(2) distinguish three kinds of vested remainders from each other
(3) Distinguish from executory interests

41

Vested remainder

Both created in an ascertained person and is not subject to any condition precedent

42

Contingent remainder

(1) unascertained person
(2) subject to a condition prescedent

43

Future interest subject to a condition precedent (NY)

Remainder subject to a condition precedent

44

Contingent remainders: Rule of destructibility

(1) At common law, was destroyed if still contingent at time the preceding estate ended
(2) Today, has been abolished (springing interest)
(3) abolished in NY

45

Contingent remainders: Rule in shelly's case

(1) "To A for life, then, on A's death, to A's heirs"
(2) Historically, present and future interests merge giving A a fee simple absolute (rule of law not rule of construction)
(3) Applies even in the face of contrary grantor intent
(4) Today, virtually abolished, instead creates (i) life estate in A; (ii) as yet unknown heirs have contingent remainder; (iii) O has reversion
(5) Rule has been abolished in NY

46

Contingent remainders: Doctrine of worthier title

(1) O, who is alive, conveys "To A for life, then to O's heirs"
(2) without doctrine, A has life estate and O's heirs have a contingent remainder, because O is still alive and a living person has no heirs
(3) Under rule, contingent remainder in O's heirs is void. Instead A has life estate and O has a reversion
(4) rule of construction, not rule of law
(5) abolished in NY w/r/t transfers taking effect after September 1, 1967

47

Indefeasibly vested remainder

The holder of this remainder is certain to acquire an estate in the future, with no strings attached; This future interest can pass by will or intestee

48

Vested remainder subject to complete defeasance/vested remainder subject to total divestment (NY: "remainder vested subject to complete defeasance")

(1) Remainderman exists
(2) not subject to any condition precedent
(3) Right to possession could be cut short by a condition subsequent (shifting executory interest granted in 3rd party; springing if against grantor)

49

Vested remainder subject to open

(1) remainder is vested in a group of takers at least one of whom is qualified to take
(2) each class member's share is subject to partial diminution because additional takers can join in (closed if no others can join class)

50

Vested remainder subject to open: Rule of convenience

Class closes when any member can demand possession

51

Womb rule

A child in the womb at time of death will share

52

Executory interest

A future interest created in a transferee which is not a remainder and which takes effect by either cutting short some interest in another person (shifting) or in the grantor or his hiers (springing)

53

Shifting executory interest

Follows defeasible fee and cuts short someone other than the grantor

54

Springing executory interest

Right to cut grantor short

55

NY: distinction between executory interests and contingent remainders

Both called remainders subject to condition precedent

56

Rule against Perpetuities

Certain kinds of future remainders are void if there is any possibility that the given interest may vest more than 21 years after the death of a measuring life

57

Rule against Perpetuities: four step

(1) determine the future interest
(2) Identify the conditions precedent to the vesting of the suspect future interest
(3) find measuring life
(4) Will we know, with certainty, within 21 years of death of our measuring life, if our future interest holder can or cannot take, if not interest is void

58

Rule against Perpetuities: applicable future interest

(1) applies to contingent remainders, executory interests; certain vested remainders subject to open
(2) does not apply to: any future interest in grantor or indefeasibly vested remainder or subject to complete defeasance

59

Rule against Perpetuities: Find measuring life

Look for person alive at the date of the conveyance and ask whether that person's life or death is relevant to the condition's occurrence

60

Rule against Perpetuities: Test it

Will we know, with certainty, within 21 years of the death of the measuring life if our future interest holder can or cannot take?

61

Rule against Perpetuities: gift to open class that is conditional on the members surviving to an age beyond 21

Violates RAP; bad as to one, bad as to all

62

Rule against Perpetuities: shifting executory interests

An executory interest with no limit on the time within which it must vest violates the RAP

63

Rule against Perpetuities: Charity to charity exception

Shifting executory interest rule doesn't apply to gifts from one charity to another

64

Rule against Perpetuities: "wait and see"

Reform rule: validity of interest is determined on the basis of the facts as they exist at the end of the measuring life; doesn't apply in NY

65

Rule against Perpetuities: Uniform rule against perpetuities

Allows for 90 year vesting period as alternative

66

Rule against Perpetuities: cy pres doctrine

"as near as possible" court may reform in a way that most closely matches grantor's intent while still complying with RAP; doesn't apply in NY

67

Rule against Perpetuities: NY special rules

(1) where it would be invalid b/c of dependance on attaining age in excess of 21, reduced to 21
(2) Woman over 55 cannot have a child
(3) Suspension rule applies (applies RAP to restrictions to the power to sell or transfer); Interest is void if it suspends the power to sell or transfer for longer than lives plus 21

68

Joint Tenancy: defined

2 or more own with a right of survivorship (you get the other's stake when they pass)

69

Tenancy by the entirety: defined

Protected marital interest between married parties w/survivorship

70

Tenancy in common: definied

2 or more own with no right of survivorship

71

Joint Tenancy: creation (T-TIP)

(1) Four unities (i) At the time; (ii) same title; (iii) identical interest; (iv) right to possess the whole
(2) Grantor must clearly state right of survivorship

72

Joint Tenancy: Distinguishing characteristics

(1) Right of survivorship
(2) Alienable, but not devisable or descendible

73

Joint Tenancy: Severance (SPAM)

Sale; Partition; and, Mortgage

74

Joint Tenancy: Severance and sale

(1) A joint tenant can sell or transfer her interest during her life time; even secretly
(2) Disrupts 4 unities so creates tenancy in common
(3) joint tenancy remains for any other joint tenants (like if there are 2 more not the one who sold)
(4) In equity, a joint tenant's mere act of entering into a contract for the sale of her share will sever joint tenancy as to the contracting party's interest

75

Joint Tenancy: Severance and partition

(1) Break up plan
(2) three variations: (i) voluntary agreement; (ii) partition in kind: court action if in the best interest of all for physical division; (iii) forced sale: land is sold and proceeds are divided proportionally

76

Joint Tenancy: severance and mortgage

(1) Majority/NY: Lien theory, whereby a joint tenant's execution of a mortgage on his or her interest will not sever joint tenancy
(2) Minority: Title theory, execution of a mortgage or a lien on a party's share will sever the joint tenancy as to that now encumbered share

77

Tenancy by the entirety (recognized in NY): how to create

(1) Between married parties with right of survivorship
(2) Arises presumptively to any conveyance to married partners unless stated otherwise

78

Tenancy by the entirety (recognized in NY): protection

(1) very protected: "can't touch this"; creditor's of one cannot touch the property
(2) In NY, one spouse may mortgage his interest and his creditors may enforce, but only as to the debtor spouse's share and non-debtor rights are not compromised (ROS)

79

Tenancy in common: Three features

(1) each co-tenant owns an individual part with right to possess the whole
(2) Each interest is devisible, descendible, and alienable (no ROS)
(3) Presumption favors tenancy in common

80

Tenancy in common: Rights and duties of cotenants

(1) Entitled to possess and enjoy the whole; if excluded by another tenant this is "wrongful ouster"
(2) Absent ouster, not liable to other co-tenants for rent
(3) Must account to co-tenants for rent to third parties
(4) Cannot acquire whole through adverse possession
(5) Each co-tenant is reponsible for their share of carrying costs (taxes, mortgage interest payment)
(6) Right to contribution for reasonable and necessary repairs provided that party has notified others of need
(7) No right to contribution for improvements; entitled to credit for any increase in value caused by efforts at time of partition; improver bears full liability for drop in value
(8) Must not commit waste
(9) may bring action for partition

81

Tenancy in common:Rights of cotenants (NY distinction)

Co tenant may acquire full title by adverse possession if in exclusive possession for >20 years continuous (implied ouster)

82

Tenancy for years: distinguishing factors

(1) Fixed period of time (2 days - 50 years)
(2) Know the termination date from the start
(3) No notice is needed to terminate
(4) Greater than one year must be in writing

83

Periodic Tenancy: elements

(1) Continues for successive periods (month to month; year to year; week to week)
(2) Until lessor or tenant give proper notice of termination
(3) can also arise by implication

84

Periodic Tenancy: arise by implication

(1) Land is leased with no mention of duration, but provision is made for payment of rent at set intervals
(2) Oral term of years in violation of statute of frauds; creates an implied periodic tenancy measured by the way rent is tendered
(3) In a residential lease, if L elects to holdover a T who was wrongfully stayed on past the conclusion of the original lease: implied periodic tenancy arise as measure of how rent is now tendered (in NY landlord who elects to holdover a tenant creates an implied month-to-month periodic tenancy unless otherwise agreed)

85

Periodic tenancy: termination

(1) notice, usually written
(2) Notice must be given at least equal to the length of the period itself unless otherwise agreed; except, tenancy from year-to-year only needs 6 months
(3) by contract can lengthen or shorten notice provisions
(4) Periodic tenancy must end at the conclusion of a natural lease period

86

Tenancy at will

(1) Tenancy for no fixed duration
(2) Unless the parties expressly agree to a tenancy at will, the payment of regular rent will be treated as an implied periodic tenancy
(3) May be terminated by either party at any time but reasonable demand to vacate is usually needed
(4) In NY, landlord terminating tenancy at will must give a minimum of 30 days written notice of termination

87

Tenancy at sufferance

(1) created when tenant has wrongfully held over past termination of the lease
(2) lasts until landlord evicts tenant or elects to hold tenant to a new tenancy
(3) In NY, landlord's acceptance of rent subsequent to the expiration of the term will create an implied month-to-month periodic tenancy, unless otherwise agreed

88

Tenant's duties: liability to 3rd parties

(1) T is responsible for keeping the premises in good repair
(2) T is liable for injuries sustained by 3rd parties that are invited even where L promised to make all repairs

89

Tenant's duties: Duty to repair

(1) when lease is silent: (i) must maintain premise and make ordinary repair; (iii) must not commit waste (voluntary, permissive, ameliorative)
(2) T expressly covenanted to maintain property in good condition for duration of lease: (i) common law, T was liable for any loss to property including due to force of nature; (ii) Majority view, T is off the hook and may end the lease if premises are destroyed w/o T's fault; (iii) NY, in absence of express undertaking to restore the premises in the event of their destruction, if destroyed through no fault of tenant, tenant may quit the premises and surrender possession without any further duty to pay rent

90

Tenant's duties: fixture

(1) removal of a fixture is voluntary waste
(2) Fixture is a once movable chattel that, by virtue of its annexation to realty, objectively shows the intent to improve black acre permanently
(3) T must not remove a fixture no mater that she installed it
(4) in absence of agreement, T may remove a chattel that she installed so long as removal does not cause substantial harm to premises\

91

Tenant's duties: Duty to pay rent

(1) If T breaches and is in possession, L may evict through court or continue with relationship and sue in court for rent due; No self help (in NY treble damages)
(2) if T breaches but is out of possession (SIR): Surrender, giving up the lease; Ignore, hold T responsible for unpaid rent as if still there (minority); Re-let, hold tenant liable for any deficiency (majority says must at least try to re let) (No requirement to mitigate in NY when tenant abandons)

92

Landlord's duties: duty to deliver possession

(1) Majority rule requires L put T in physical possession of the premises
(2) American rule need only legal possession

93

Landlord's duties: implied covenant of quiet enjoyment

(1) right to quiet use and enjoyment of premises without interference from L
(2) Breach by wrongful eviction (evicts or excludes T from premises)
(3) Breach by constructive eviction: SING: Substantial interference, due to L's actions or failure to fix a chronic problem; Notice, T must notify L of problem and L must fail to respond meaninfully; Goodbye, T must vacate w/in a reasonable time

94

Landlord's duties: Liability for other tenants

(1) generally not liable
(2) Two exceptions (i) must not permit a nuisance on site; (ii) must control all common areas

95

Landlord's duties: Implied warranty of habitability

(1) Applies only to residential leases
(2) Non-waivable
(3) premises must be fit for basic human dwelling (case law and housing code)
(4) T's entitlements following breach (MRRR): (i) Move out and end lease; (ii) Repair and deduct from future rent; (iii) Reduce rent (escrow); (iv) remain in possession and seek money damages
(5) L is barred from penalizing T for reporting housing code violations by, for example, raising rent, ending lease, harassing T, or any other reprisals

96

Assignment and Sublease: availability

(1) in the absence of prohibition in the lease, a T my freely transfer interest in the whole (assignment) or in part (sublease)
(2) Lease can prohibit T from assigning or subleasing without L's prior written approval
(3) Once L consents to one transfer by T, L waives the right to object to future transfers by that T, unless right is expressly reserved

97

Assignment and Sublease: NY rule

(1) Unless lease provides otherwise, a residential T may not assign without L's written consent
(2) L can unreasonably withhold consent to assign and T's sole remedy is release from lease
(3) T in a residential building with 4 or more units has the right to sublease subject to L's written consent
(4) Consent to sublease cannot be unreasonably withheld, unreasonably withheld consent is deemed consent

98

Assignment: Privity and liability

(1) as a result of assignment, L and T2 are in privity of estate
(2) L and T2 are liable for all covenants in the original lease that run with the land
(3) L and T2 are not in privity of contract unless T2 assumed all promises
(4) L and T1 are no longer in privity of estate
(5) L and T1 are still in privity of contract
(6) L and T1 are secondarily liable to each other

99

Sublease: Privity and liability

(1) Neither privity of estate or contract
(2) relationship between L & T1 is fully in tact

100

Landlord's tort liability: Caveat lessee

(1) Common law: let T beware; L is under no duty to make premises safe

101

Landlord's tort liability: CLAPS (tort liability potential)

(1) Common areas
(2) Latent defects rule (must warn of hidden defects known or should have known; no duty to repair)
(3) Assumption of repairs (if repair, liable for negligent repair)
(4) Public use rule: L leases a public space and should know, because of the nature of the defect and the length of the lease that T will not repair is liable for any defects on the premises
(5) Short term lease of furnished dwelling (liable for any defects on site)

102

Affirmative easement: method of creation (PING)

(1) Prescription: use that is continuous, open and notorious, actual under a claim of right that is hostile for request statutory period
(2) Implication: implied from prior use; at time land is severed, a use of part existed from which it can be inferred that an easement permitted its continuation was intended
(3) Necessity: division of a tract deprives one lot of means of access out
(4) Grant: writing signed by grantor

103

Affirmative easement: parties bound

(1) easement appurtenant is transferred automatically with dominant tenement
(2) Easement in gross for commercial purposes is assignable

104

Affirmative easement: remedy

Injunction or damages

105

Negative easements: applications (LASS)

Light; air; support; streamwater

106

Negative easement: creation

can be created only by writing signed by grantor

107

Negative easement: remedy

Injunction or damages

108

Real covenants: method of creation

writing signed by grantor

109

Real covenants: parties bound

(1) Burden of promise will run to successor of burdened lot if WITHN requirements are satisfied: (i) Writing; (ii) Intent; (iii) Horizontal and vertical privity; (iv) Notice
(2) Benefit of promise will run to successor of benefited lot if WITV: (i) writing; (ii) Intent; (iii) touch and concern; (iv) vertical privity

110

Real covenants: remedy

damages

111

Equitable servitudes: method of creation

writing signed by grantor (unless implied by general scheme doctrine)

112

Equitable servitudes: parties bound

Successors bound if WITNes: (i) Writing; (ii) Intent; (iii) Touch and concern; (iv) Notice

113

Equitable servitudes: Remedy

Injunction

114

Reciprocal Negative servitudes (general scheme doctrine):method of creation

(1) Majority: In subdivision, residential restriction contained in prior deeds conveyed by common grantor will bind subsequent grantees whose deeds contain no such restriction if, at the start of subdividing the grantor had (i) common scheme; (ii) unrestricted lot holders had notice
(2) Minority rule: does not bind subsequent grantees unless their lots are expressly restricted in writing

115

Easement: definition

the grant of a nonpossessory property interest that entitles its holder to some form of use or enjoyment of another's land called the servient estate

116

Easement: Affirmative v. Negative

(1) Affirmative: right to do something on servient land
(2) Negative: right to prevent servient landowner from doing something on their land (LASS); can only be created expressly, by writing signed by the grantor

117

Easement: Appurtenant v. held in gross

(1) Appurtenant: benefits holder in his physical use or enjoyment of the property (two parcels of land, dominant and servient)
(2) In gross confers upon holder some personal or pecuniary advantage that is not related to his use or enjoyment of the land (no dominant tenement)

118

Easement: Transferability

(1) Appurtenant easement passes automatically with the dominant tenement regardless of whether it is even mentioned in the conveyance
(2) Easement in gross is not transferable unless it is for commercial purposes

119

Adverse possession elements (COAH)

(1) Continuous use for statutory period (10 years in NY)
(2) Open & notorious
(3) Actual use
(4) Hostile use (w/o consent)

120

Termination of easement: END CRAMP

(1) Estoppel: servient owner materially changes their position in reasonable reliance on the easement holder's assurances that the easement will not be enforced
(2) Necessity: easements created by necessity expire as soon as the need ends; however, if nonetheless created by express grant, won't end when need ends
(3) Destruction of servient land other than through willful conduct of servient owner
(4) Condemnation of servient estate (eminent domain)
(5) Release (written release by easement holder to servient owner)
(6) Abandonment: Easement holder must demonstrate physical action with the intent to never use easement again (mere nonuse or mere words are insufficient)
(7) Merger doctrine: When title to easement and title to servient land become vested in the same person
(8) prescription (adverse possession)

121

License: definition

Mere privilege to enter another's land for delineated purpose

122

License: Creation and revocation

(1) not subject to SOF
(2) fully revocable unless estoppel applies (licensee invested substantial money, labor (or both))

123

License: classic examples

(1) Tickets
(2) Neighbors talking at a fence: "you can have that right of way across my fence"

124

Profit

(1) entitles its holder to enter the servient land and take from it soil or some substance of the soil (trees)
(2) Follow rules of easement

125

Covenant: definition

(1) Promise to do or not do something related to land.
(2) Contractual obligation not a grant of a property interest

126

Covenant: restrictive covenants

Promise to refrain from doing something related to land

127

Covenant: covenant v. equitable servitude

(1) covenant is at law = money as a remedy
(2) equitable servitude is at equity = injunction as a remedy

128

Covenant: will conveyance run with the land (WITHN) & (WITV)

Elements necessary for burden to run
(1) Writing: original covenant was in writing
(2) Intent: original parties intended covenant to run
(3) Touch and concern the land
(4) Horizontal and vertical privity
(5) Notice

Does the benefit of A's promise to B run from B to B-1?
(1) writing
(2) Intent
(3) Touch and concern
(4) Vertical privity

129

Horizontal privity

(1) Nexus between original parties (A & B)
(2) requirements: Succession of estate; were in a grantor/grantee or mortgage/mortgagee or landlord/tenant relationship

130

Vertical privity

(1) Nexus between A and A1
(2) Non hostile: contract, devise, descent
(3) Only time absent is adverse possession

131

Equitable servitude: definition

Promise that equity will enforce against successors; accompanied by injunctive relief

132

Equitable servitude: creation (WITN)

(1) writing
(2) Intent
(3) Touch and concern
(4) Notice

133

Equitable servitude: Implied equitable servitude

(1) subdivider had a general scheme of residential development which included D's lot
(2) Lot holder had notice of promise
(3) forms of notice (AIR): (i) Actual notice; (ii) Inquiry notice: neighborhood conforms to common restriction (lay of land); (iii) Record notice: publicly recorded document

134

Equitable servitude: equitable defense to enforcement

(1) Changed conditions: changes so pervasive that the entire area is changed

135

Adverse possession: Elements (COAH)

(1) Continuous: uninterrupted for statutory period (10 years in NY)
(2) Open and Notorious: sort of possession usual owner would make
(3) Actual: literal entry
(4) Hostile: possessor doesn't have owner's consent to be there

136

Adverse possession: additional element for NY

(1) Possessor must have good faith belief that the land he is occupying is his
(2) considered bad faith for the claimant to know that he is occupying another's land

137

Adverse possession: tacking

(1) One adverse possessor may tack on to his time with the land his predecessor's time so long as privity which is satisfied by any nonhostile nexus such as blood, contract, deed, or will
(2) Not allowed when there has been ouster

138

Adverse possession: disabilities

SOL will not run against a true owner who is afflicted by a disability at the start of adverse possession (infancy, insanity, imprisonment)

139

Land conveyance: Two elements

(1) the land contract
(2) The closing (where deed becomes operative document)

140

Land contract: SOF

(1) must be in writing signed by party to be bound
(2) must describe property and state some consideration

141

Land contract: Part performance

(1) exception to SOF
(2) Two of three: (i) B takes possession; (ii) B pays all or part of price; (iii) B makes substantial improvements

142

Land contract: risk of loss

(1) equitable conversion: once the contract is signed, B owns the land so bears risk of loss unless contract says otherwise
(2) In NY, so long as buyer is without fault, the risk of loss remains with the seller until buyer has title or takes possession

143

Land contract: Implied promises

(1) seller promises to provided marketable title: free from reasonable doubt; free from litigation or threat of litigation
(2) unmarketable title if: (i) adverse possession; (ii) encumbrances; (iii) zoning violations
(2) seller promises not to make any false statements of material fact (lies and omissions)

144

Closing: LEAD

(1) controlling document becomes the dead
(2) lawfully executed: must be inwriting signed by grantor (no need for consideration); description of the lien: unambiguous and good lead
(3) Delivery: Can be satisfied by physical transfer of the deed to the grantee; Did grantor have present intent to be bound irrespective of whether or not the deed itself was handed over; express rejection of deed defeats delivery

145

Quitclaim deed

(1) contains no covenants
(2) did promise to provide marketable title at closing (off the hook for post closing problems)

146

General warranty deed

(1) Warrants against all defects in title even to predecessors

147

General warranty deed: covenants

(1) present covenants: (i) seisin: grantor owns the estate; (ii) Right to convey: power to transfer; (iii) against encumbrances: no servitudes or mortgages
(2) Future covenants: (i) Quiet enjoyment: won't be disturbed in possession by third parties lawful claim of title; (iii) warranty: grantor will defend grantee against lawful claims of title asserted by others; (iv) future assurances: will do what is needed to perfect title

148

Statutory special warranty deed (bargain and sale deed in NY)

Two promises: (1) grantor promises hasn't conveyed to anyone other than grantee; (2) estate is free from encumbrances made by grantor

149

Recording system (double dealer): two brightline rules

(1) If B is a bonafide purchaser, and we are in a notice jurisdiction, B wins, regardless of whether or not she records before A does
(2) If B is a bonafide purchaser and we are in a race-notice jurisdiction (NY), B wins if she records properly before A does

150

Bonafide purchaser

(1) Buys property for value
(2) without notice that someone else got there first (AIR): (i) Actual notice; (ii) inquiry notice: examination of property would learn of previous buyer; (iii) record notice: title search

151

Recording system (double dealer): Shelter rule

One who takes from a BFP will prevail against any entity that the transferor or BFP would have prevailed against (doesn't matter if transferee knew of prior transfer)

152

Recording system (double dealer): Wild ded

If a deed, entered on the records, has a grantor unconnected to the chain of title, the deed is a wild deed. It is incapable of giving record notice of its existence

153

Recording system (double dealer): Estoppel by Deed

One who conveys realty in which he has no interest is estopped from denying the validity of that conveyance if he later acquires the previously transferred interest

154

Mortgages: creation

(1) Conveyance of a security interest in land intended by the parties to be collateral for repayment of a debt
(2) Union of two elements: (i) debt; (ii) voluntary transfer of security interest in debtor's land to secure the debt
(3) Typically must be in writing to satisfy statute of frauds

155

Mortgages: equitable mortgages

Giving deed to creditor that is absolute on its face

156

Mortgages: parties' rights

(1) Until foreclosure debtor-mortgagor has title and right to possession
(2) creditor-mortgagee has lien

157

Mortgages: transferability

(1) All parties to a mortgage can transfer their interests
(2) Creditor mortgagee can transfer by: (i) endorsing not & delivering it to transferee; (ii) executing separate documents of assignment

158

Real defenses (apply even to HIDC) MADFIFI4

Material alteration; duress; fraud in fact (lie about the instrument; incapacity; illegality; infancy; insolvency

159

Holder in due course requirements

(1) Note must be negotiable made payable to the named mortgagee
(2) indorsed by the named mortgagee
(3) original must be delivered to transferee (not a photo copy)
(4) transferee must take the note in good faith without notice of any illegality
(5) transferee must pay value for the note, meaning some amount that is more than nominal

160

Mortgages:selling of mortgaged property

Lien remains on the land so long as the instrument has been properly recorded

161

Mortgages: who is liable if B assumes O's mortgage

(1) B is primarily liable; O remains secondarily liable
(2) if B takes "subject to mortgage" B assumes no personal liability and only O is personally liable (can still foreclose)

162

Effects of foreclosure

(1) terminates interests junior to the mortgage being foreclosed but does not affect senior interests
(2) buyer at foreclosure sale takes subject to senior interests (not personally liable, but senior creditor can foreclose)

163

Redemption: redemption in equity

(1) At any time prior to the foreclosure sale, debtor has right to redeem the land and free itself of the mortgage
(2) must pay missed payments plus interest plus costs (but see acceleration clause)
(3) Debtor cannot waive right to redeem (clog)

164

Redemption: statutory redemption (not in NY)

(1) payment of foreclosure sale price 6 months to 1 year after foreclosure
(2) right to possess property during statutory period
(3) redemption nullifies the foreclosure sale and redeeming owner gets restored title
(4) no statutory right in NY

165

Lateral support

(1) excavator is liable to adjacent landowner's excavation if causes cave in only if negligent
(2) SL does not apply unless plaintiff shows that, because of defendant's action, would have collapsed even in its natural state

166

Water rights: Riparian doctrine

(1) water belongs to those owning land bordering watercourse
(2) Riparians share right to reasonable use of the water
(3) liable for use if unreasonably interferes with others' use

167

Water rights: Prior appropriation doctrine

(1) water belongs initially to the state but the right to diver it and use it can be acquired by individual regardless of riparian owner
(2) rights are determined by priority of beneficial use (first in time first in right)

168

Water rights: groundwater

Surface owner is entitled to make reasonable use of ground water however must not be wasteful

169

Water rights: surface waters

common enemy rule: may change drainage or make improvements to combat flow of surface water (some courts prohibit unreasonable)

170

Possessor's right: trespass

Invasion of land by physical object; ejectment action to remove

171

Possessor's right: private nuisance

Substantial and unreasonable interference with anothers use and enjoyment of land

172

Eminent domain: definition

Government's 5th amendment power to take private property for public use in exchange for just compensation

173

Eminent domain: implicit or regulatory taking

Government regulation that, although not intended to be, has the same effect as a taking

174

Eminent domain: remedy

(1) compensate owner
(2) terminate regulation and pay owner for damage while in effect

175

Zoning: definition

Pursuant to police powers government may enact statutes to reasonably control land use

176

Zoning: unconstitutional exactions

Exactions must be reasonably related both in nature and scope to the impact of the proposed development

177

Zoning: variance (must show)

(1) undue hardship
(2) won't decrease neighboring property values