Property Final Review Outline Flashcards
(96 cards)
1
Q
Fee Simple Absolute
A
Fee simple absolute is the most complete estate in land.
- Freely alienable, devisable, and descendible
- Potentially infinite in duration
- Not subject to any future interest
Created by:
- “To A” or “To A and his heirs”
2
Q
Fee Simple Determinable
A
Fee simple determinable ends automatically upon occurrence of a condition.
- Uses durational language (“so long as,” “until”)
- Future interest: Possibility of reverter in grantor
3
Q
Fee Simple Subject to Condition Subsequent
A
Fee simple subject to condition subsequent gives grantor a right to re-enter if condition occurs.
- Uses conditional language (“but if,” “provided that”)
- Future interest: Right of entry in grantor (The grantor must take affirmative steps to reclaim the property.)
4
Q
Fee Simple Subject to Executory Interest
A
Fee simple subject to executory interest ends automatically and transfers to a third party.
- Uses either durational or conditional language
- Future interest: Executory interest
5
Q
Life Estate
A
Life estate is measured by the life of a person.
- Ends automatically at death of measuring life
- May be defeasible
- Future interest: Reversion (grantor) or remainder (third party)
6
Q
Term of Years Tenancy
A
Created by: Agreement (i.e., lease)
Duration: Fixed period (e.g., 1 month, 3 years)
Termination: Ends automatically or upon breach of major covenants (e.g., rent)
7
Q
Periodic Tenancy
A
Created by: Agreement, implication, or operation of law (e.g., holdover tenant)
Duration: Periodically renews until terminated
Termination: Ends with proper notice or breach of covenant
8
Q
Tenancy at Will
A
Created by: Agreement or implication when possession is allowed without rent
Duration: Indefinite
Termination: At any time with reasonable notice
9
Q
Tenancy at Sufferance
A
Created by: Tenant holds over after lease ends
Duration: Continues until landlord acts
Termination: Landlord evicts, tenant vacates, or landlord accepts rent (forms periodic tenancy)
10
Q
Reversion
A
Reversion is a future interest retained by the grantor when a present estate is given that is less than a fee simple, and no other recipient is named.
Example:
- “To A for life” → grantor retains a reversion
11
Q
Remainder
A
Remainder is a future interest held by a third party that becomes possessory when a prior estate (typically a life estate) ends naturally.
Types of remainders:
- Vested: Given to an ascertained person, not subject to a condition precedent
- Contingent: Either unascertained grantee or subject to a condition precedent
12
Q
Vested Remainder Subject to Open
A
Vested remainder subject to open exists when:
- At least one class member is vested
- The class is still open to additional members
Each member’s share is subject to partial divestment as new members join the class.
13
Q
Vested Remainder Subject to Complete Divestment
A
Vested remainder subject to complete divestment is a vested interest that may be fully lost if a condition subsequent occurs.
Example: “To A for life, then to B, but if B marries X, then to C.”
14
Q
Possibility of Reverter
A
Possibility of reverter is a future interest retained by the grantor following a fee simple determinable.
The estate automatically returns to the grantor upon the occurrence of the specified event.
15
Q
Right of Reentry
A
Right of reentry (also called power of termination) is a future interest retained by the grantor following a fee simple subject to condition subsequent.
The grantor must take affirmative steps to reclaim the property.
16
Q
Executory Interest
A
Executory interest is a future interest held by a third party that takes effect by divesting:
- A prior grantee (→ shifting executory interest), or
- The grantor (→ springing executory interest)
17
Q
Rule Against Perpetuities (RAP)
A
Rule Against Perpetuities (RAP): A future interest is valid only if it must vest or fail no later than 21 years after the death of a life in being at the time the interest is created.
Applies to:
- Contingent remainders
- Executory interests
- Class gifts (vested subject to open)
- Powers of appointment
- Options and rights of first refusal
Does NOT apply to:
- Grantor’s retained interests (e.g., reversion, possibility of reverter, right of reentry)
- Transfers from one charity to another
Common RAP violations include:
- “Survival beyond age 21” conditions
- Fertile octogenarian
- Unborn spouse
- Defeasible fee followed by an executory interest
- Conditional interest that may vest too remotely
Class Gifts and RAP:
- If RAP voids a transfer to any class member, the entire class gift fails: “bad as to one, bad as to all” rule
- Rule of Convenience: Class closes when any member is entitled to possession, preventing later members from joining and saving the gift from RAP violation
18
Q
Tenancy in Common
A
Tenancy in common is the default form of co-ownership.
Key features:
- Each tenant has an equal right to possess the whole
- Shares may be unequal and separately transferable
- No right of survivorship
Freely:
- Alienable during life
- Devisable by will
- Inheritable via intestate succession
19
Q
Joint Tenancy
A
Joint tenancy is a co-ownership with right of survivorship.
Requires four unities (PITT):
- Possession: equal right to possess the entire property
- Interest: equal and undivided shares
- Time: interests created at the same time
- Title: interests created in the same instrument
Alienable during life (but severs the joint tenancy)
20
Q
Tenancy by the Entirety
A
Tenancy by the entirety is a joint tenancy held by married spouses.
Key features:
- Includes right of survivorship
- Only severable with the spouse’s consent
Presumed for married couples in some states.
Not recognized in all jurisdictions.
21
Q
Rights and Duties of Cotenants
A
Each cotenant has the right to possess the entire property.
- No obligation to pay rent to each other (unless agreed)
- Ouster: Denial of possession → injured cotenant may seek damages or injunction
Expenditures and income:
- Contribution allowed for necessary taxes and mortgage payments
- No contribution for repairs (but may recover in accounting/partition)
- No contribution for improvements, but may recover value added on sale
22
Q
Partition
A
Partition is the division of concurrent property interests.
Can be:
- Voluntary: by mutual agreement
- Involuntary: by court action
Types:
- Partition in kind (preferred): physical division of property
- Partition by sale: if physical division is impracticable or unfair
Cotenants may agree not to partition, but the agreement must be:
- Clear and
- Reasonable in duration
23
Q
Conflict of Laws
A
In cases involving real property, the forum court will apply the law of the situs (i.e., the law where the property is located) except:
- When a document that conveys or transfers an interest in land specifies the applicable law
- When property is acquired during marriage (in which case the law of the spouses’ domicile when the property was acquired determines whether the property is marital or separate property) or
- For collateral issues (e.g., fraudulent transfer of land), where the law of the state with the most significant interest may apply.
24
Q
Statute of Frauds – Leases
A
A lease longer than one year must satisfy the Statute of Frauds:
Writing must:
- Identify the parties and premises
- State the duration of the lease
- State the rent to be paid
- Be signed by the party to be charged
25
Tenant’s Duties – Pay Rent, Avoid Waste, Repair
**General Rule:** A tenant has the duty to **pay rent**, **avoid waste**, and **make repairs** (subject to lease terms and local law).
**1. Duty to Pay Rent**
- Tenant must pay agreed rent **unless**:
- The premises are **destroyed** (ends lease)
- The landlord **materially breaches** (e.g., eviction)
**2. Duty to Avoid Waste**
- Tenant must avoid **affirmative**, **permissive**, and (sometimes) **ameliorative** waste
- Waste rules apply when a tenant shares an interest in the land
- Look for **acts or omissions affecting value**
**3. Duty to Repair**
- **Nonresidential lease**: Tenant must repair if agreed in the lease (except for damage caused by landlord)
- **Residential lease**: Tenant generally **not responsible** for repairs, but must **notify landlord** of needed repairs
26
Landlord’s Duty to Deliver Possession
**English Rule (majority):** Landlord must deliver **actual physical possession**.
**American Rule (minority):** Landlord must deliver only **legal right to possession**.
Breach allows tenant to:
- Refuse to pay rent
- Terminate the lease
- Sue for damages
27
Landlord’s Duty to Repair
**Majority rule:** Implied in **residential** leases, even if lease shifts burden.
**Common law:** No implied duty to repair.
Breach may be treated as:
- **Constructive eviction**
- **Violation of warranty of habitability**
28
Implied Warranty of Habitability
**Implied in most residential leases**.
Landlord must:
- Maintain premises suitable for **residential use**
- Fix issues threatening **health or safety**
Tenant must **notify** landlord and allow reasonable time to cure before:
- Withholding rent
- Repairing and deducting
- Defending against eviction
29
Covenant of Quiet Enjoyment
**Implied in all leases** (residential and commercial).
Tenant has right to possess **without interference** by:
- Landlord
- Someone with superior title
**Remedies:**
- **Actual eviction** (entire premises): lease terminates, rent excused
- **Partial eviction**:
- By landlord: all rent excused
- By third party: rent reduced
- **Constructive eviction**: substantial interference + tenant vacates
30
Constructive Eviction
**Landlord breach** substantially interferes with use/enjoyment (e.g., lack of heat or water).
Tenant must:
1. **Notify** landlord and give time to fix
2. **Landlord fails** to remedy
3. **Tenant vacates** within a reasonable time
→ Rent is excused
31
Lease Assignment vs. Sublease
**Assignment** = Tenant transfers **entire remaining lease** to a new tenant (assignee).
**Legal effects:**
- **Assignee** has privity of estate with landlord → liable for rent and covenants that run with the land
- **Original tenant** retains privity of contract (liable unless released by landlord)
vs.
**Sublease** = Tenant transfers **less than entire lease term**.
**Legal effects:**
- **Sublessee** has no privity with landlord
- Sublessee liable only to **sublessor** (original tenant)
- **Original tenant** remains liable to landlord for rent and other covenants
**Absent lease restrictions, tenant may freely assign or sublet.**
**If lease requires landlord consent:**
- **Majority rule**: Landlord may withhold consent **only for commercially reasonable grounds**
- **Minority rule**: Landlord may withhold consent **at discretion**
**Waiver:** Landlord may waive objection by knowing of a transfer and **not objecting**.
32
Landlord’s Assignment of Lease
**A landlord may assign lease rights and duties without tenant’s consent.**
- **Tenant** owes rent and duties to **assignee-landlord**
- **Assignee** must perform duties that run with the land
- **Original landlord** remains liable unless released
33
Landlord’s Remedies for Tenant’s Breach
**If tenant fails to pay rent:**
- Landlord may **terminate lease** and recover possession
- May enforce a **forfeiture clause** (if included)
- Most states **preclude recovery of future rent**
**If anticipatory repudiation applies:**
- Damages = future rent minus:
- Reasonable rental value, or
- Rent collected upon reletting
**If tenant pays rent late:**
- Landlord may recover **damages**
- May evict if **material breach** occurs
**If tenant abandons property:**
- Acceptance = lease terminates, tenant not liable for future rent
- Rejection = landlord must **mitigate damages**
**If tenant refuses to leave:**
- Landlord may:
1. **Evict** after written notice
2. **Bind** tenant to new **periodic tenancy**
34
Retaliatory Eviction Doctrine
**A landlord may NOT evict a residential tenant** in retaliation for:
- **Good-faith complaints** about housing code violations
- **Withholding rent** after breach of the **warranty of habitability**
**Purpose:** Protects tenants from punishment for exercising legal rights.
**Applies to:** Residential leases (not typically commercial).
**Evidence of retaliation** may include:
- Eviction shortly after a complaint
- Sudden increase in rent or decrease in services
35
Security Deposit
**A landlord may require a security deposit**, subject to **state law**.
**General requirements:**
- Amount and terms governed by statute
- Must be **promptly returned** at lease end or
- Landlord must provide **notice of deductions** (with itemized explanation)
**Purpose:** Covers damages beyond normal wear and tear, unpaid rent, or cleaning costs.
36
Formation of Land-Sale Contract: how is it formed and who is typically involved?
**A land-sale contract is formed** like any other contract:
- **Offer, acceptance, consideration**
Often involves **real estate brokers**:
- **Listing broker** sets price and advertises
- **Selling broker** finds buyer (often subagent of listing broker)
**Brokers owe fiduciary duties**: loyalty, care, competence, diligence, disclosure, confidentiality
37
Statute of Frauds – Land-Sale Contract
**Land-sale contracts must satisfy the Statute of Frauds:**
- Be **in writing**
- Be **signed by the party to be charged**
- Contain all **essential terms**:
- **Identity of parties**
- **Description of property**
- **Purchase price**
- **Intent to buy/sell**
38
Exceptions to Statute of Frauds – Land Sale
**A land-sale contract may be enforceable without a writing if:**
**1. Part Performance:** Most jurisdictions require 2 of 3:
- Payment (full or partial)
- Possession
- Substantial improvements
**2. Full Performance:** Seller conveys property
**3. Detrimental Reliance:** Buyer relies reasonably and suffers hardship
**4. Admission:** Opposing party admits contract exists
39
Implied Covenant of Marketable Title
**Seller must deliver marketable title at closing.**
Title must be:
- **Free of undisclosed encumbrances or defects**
- Not subject to **unreasonable litigation risk**
**Common title defects:**
- Easements
- Liens
- Leases
- Zoning violations
- Adverse possession claims
**Remedies:** Buyer may:
- **Rescind**
- **Sue for breach**
- **Seek specific performance**
40
Time Is of the Essence
**Time is of the essence** only if:
- Expressly stated in the contract, or
- Implied by the circumstances
If **not** of the essence:
- Late party is still in breach, but liable only for **incidental losses** (e.g., taxes, interest)
41
Implied Warranty of Fitness or Suitability
**Applies to new home sales** by a builder.
Covers **latent construction defects** (not observable).
**Buyer may sue within a reasonable time** after discovery.
**May be disclaimed** by clear and specific language.
**General “as is” clauses are NOT enough.**
42
Seller’s Duty to Disclose Defects
**Seller of a residence must disclose** known, **material physical defects** that:
- Are **not readily observable**
- **Substantially affect value, desirability, or safety**
43
Merger Doctrine
**At closing, land-sale contract merges into the deed.**
Post-closing, buyer must sue under **deed warranties**, not the contract.
**Exceptions:**
- Parties intended obligation to **survive closing**
- Obligation is **collateral** to the conveyance
44
Remedies for Breach – Land Sale
**Damages:**
- Buyer or seller may recover **expectation damages** (market value – contract price)
- Buyer limited to **out-of-pocket expenses** if seller fails in **good faith** to convey marketable title
**Liquidated damages:**
- Enforced if reasonable (usually ≤10%)
- May be denied if seller suffers no actual loss
45
Specific Performance – Land Sale
**Either party may seek specific performance** of a land-sale contract.
Some courts **do not allow sellers** to seek specific performance (since they receive money, not land)
46
Equitable Conversion
**At signing**, buyer gains **equitable title**, seller retains **legal title** until closing.
**Risk of loss** is on the **buyer**, unless:
- Loss caused by seller’s acts
- Jurisdiction follows Uniform Vendor and Purchaser Risk Act
47
Options and Rights of First Refusal
**Option:** Buyer pays consideration for the **right to buy** within a set time.
**Right of first refusal:** Buyer has the right to match a **third-party offer**.
Both are **subject to the Statute of Frauds**.
48
Adverse Possession – Elements (ECHO)
**Adverse possession** allows a trespasser to gain legal title by possession over time.
**Elements (ECHO):**
- **Exclusive** – Cannot share with true owner
- **Continuous** – Possession as an ordinary owner would, for statutory period
- **Hostile** – Without permission; intent to claim as own
- **Open and Notorious** – Visible enough to put true owner on notice
**Statutory period**: Typically 10 years (varies by state)
49
Tacking and Disabilities – Adverse Possession
**Tacking**: Successive possessors may combine periods if in **privity** (non-hostile transfer).
**Disabilities**: Statute of limitations **does not run** against a true owner who has a disability **at the time AP begins**:
- Infancy
- Insanity
- Imprisonment
50
Constructive Adverse Possession
**Constructive adverse possession** arises when:
- Possessor enters under **color of title** from an invalid instrument
- Possessor **occupies part** of the described land
Result: Possessor gains title to **entire parcel** described in instrument, not just portion occupied
51
Delivery of Deed
**Deed is effective upon delivery**, which requires:
- **Grantor’s present intent** to transfer interest
**Presumptions:**
- Delivery = deed given to grantee
- No delivery = deed retained by grantor
**Third-party delivery:**
- Grantor’s agent → not delivered
- Grantee’s agent → delivered
- Independent agent → delivery depends on grantor’s instructions
52
Acceptance of Deed
**Acceptance is required** for a valid transfer.
**Presumed** if the transfer is beneficial to the grantee
53
Requirements for a Valid Deed
**To be valid, a deed must:**
- Be **written** and **signed by the grantor**
- **Identify** the grantor and grantee
- **Describe** the land with reasonable certainty
- Include **words of transfer** (e.g., “grant,” “sell,” “convey”)
**Invalid if:**
- Oral (except some gifts)
- Grantee is nonexistent or ambiguous
54
Recording Acts – Purpose and Default Rule
**Recording acts** establish priority among conflicting property interests.
**Default rule (if no act applies):**
- **First in time, first in right**
55
Types of Recording Acts
**1. Race:** First to record wins (regardless of notice)
**2. Notice:** Subsequent purchaser prevails if:
- Took **without notice** of prior interest
**3. Race-Notice:** Subsequent purchaser prevails if:
- Took **without notice**, and
- **Recorded first**
56
Notice – Actual, Inquiry, Record
**Types of Notice:**
- **Actual**: Personal knowledge
- **Inquiry**: Reasonable investigation would have revealed it (e.g., visible occupant)
- **Record**: Prior interest was recorded in **grantor’s chain of title**
57
Shelter Rule
**A grantee who takes from a protected purchaser** also gets the benefit of the recording act protection—even if the grantee would not otherwise qualify.
**Purpose:** Encourages marketability of title
58
Estoppel by Deed
**If a grantor conveys land before owning it**, but later acquires title:
- Grantor is **estopped** from denying validity of prior conveyance
59
Types of Deeds
**1. General Warranty Deed:**
- Contains **all six covenants of title**
**2. Special Warranty Deed:**
- Same six covenants, but only covers **defects during grantor’s ownership**
**3. Quitclaim Deed:**
- **No covenants** of title; conveys **only what grantor has**
60
Covenants of Title
**Present Covenants** (breached at conveyance, do NOT run with land):
- **Seisin**: Grantor owns what they claim to convey
- **Right to Convey**: Grantor has legal right to transfer
- **Against Encumbrances**: No undisclosed encumbrances
**Future Covenants** (breached upon interference, DO run with land):
- **Warranty**: Grantor will defend title
- **Quiet Enjoyment**: Grantee won’t be disturbed by superior claim
- **Further Assurances**: Grantor will do what's needed to perfect title
61
Conveyance by Will
**Real property may be transferred by will:**
- **Specific devise**: “My home to my daughter”
- **Residuary clause**: “All else to my brother”
**Ademption**: Gift fails if property no longer owned at death
**Lapse**: Gift fails if devisee dies first, unless anti-lapse statute applies
62
Conveyance by Trust
**Trust = fiduciary relationship** for benefit of beneficiaries
**Types:**
- **Inter vivos trust**: Created during settlor’s life
- **Testamentary trust**: Created by will
- **Pourover trust**: Funded at death via will
**Trustee** holds legal title, **beneficiaries** hold equitable title
63
Conveyance by Operation of Law
**Occurs when no valid will exists** (or will does not dispose of all property)
**Property passes by intestacy** to closest relatives:
- Spouse
- Children
- Others by degree
**Escheat**: If no heirs, property passes to the state
64
Restraints on Alienation
**A restraint on alienation** is a restriction on transferring property.
**General Rule:** Direct restraints are **disfavored** and only valid if **reasonable**. Any restraint based on **race, ethnicity, or religion** is **unenforceable**.
**Types of Restraints:**
- **Disabling Restraint**: Total prohibition on transfer → **Always void**
- **Forfeiture Restraint**: Interest forfeited upon attempted transfer → Valid on **life estates or future interests**
- **Promissory Restraint**: Promise not to transfer → Enforceable by **injunction or damages**
- **Equitable Interest Restraint**: Applies to **spendthrift clauses** in trusts → Generally **valid**
65
Mortgage – Definition and Theories
**Mortgage**: A security interest in real property to secure repayment of a loan.
**Two theories:**
- **Lien Theory (majority):** Mortgagor holds title, mortgagee has lien
- **Title Theory (minority):** Mortgagee holds title, mortgagor retains right to regain title upon repayment
66
Mortgagee’s Right to Possession
**Lien Theory (majority):**
- Mortgagee has a lien only
- **Cannot take possession** before foreclosure
**Title Theory (minority):**
- Mortgagee holds legal title
- **Can take possession at any time**, but usually barred by contract until default
**If mortgagee takes possession:**
- Has duty **not to commit waste**
67
Mortgage Alternatives
**1. Deed of Trust:** Like a mortgage, but uses a third-party trustee
**2. Installment Land Contract:** Buyer makes payments, gets title upon full payment
**3. Absolute Deed:** Treated as mortgage if intended to secure a debt
**4. Conditional Sale and Repurchase:** Seller leases property with repurchase option
68
Transfer of Mortgaged Property
**Mortgaged property may be transferred**, but liability varies:
**1. Subject to the mortgage:**
- Transferee is **not personally liable**
- Property may still be foreclosed
**2. Assumes the mortgage:**
- Transferee is **primarily liable**
- Original mortgagor is **secondarily liable as surety**
69
Due-on-Sale and Due-on-Encumbrance Clauses
**Due-on-sale clause:** Lender may demand full repayment upon property transfer
**Due-on-encumbrance clause:** Lender may accelerate upon a second mortgage
70
Redemption – Mortgages
**Redemption** allows mortgagor to regain property:
**1. Equitable Redemption:**
- At any time **before foreclosure sale**
- Pay full amount owed plus interest
**2. Statutory Redemption (some states):**
- **After foreclosure sale**, during statutory period
- Mortgagor pays **foreclosure sale price** to reclaim property
71
Deed in Lieu of Foreclosure
**Mortgagor may voluntarily transfer deed** to mortgagee
- In exchange for release from debt
- Avoids foreclosure
- Mortgagee takes property subject to junior interests
72
Foreclosure – Methods and Requirements
**Foreclosure** allows the mortgagee to sell the property upon **default**.
**Methods:**
- **Judicial foreclosure** (all states): Court-supervised sale
- **Private sale** (power-of-sale): Allowed if mortgage includes clause (in most states)
- **Strict foreclosure** (rare): Title transfers without sale
**Requirements:**
- Mortgagee must give **notice**
- May collect **only the amount currently due**, unless acceleration clause applies
73
Priority of Mortgage Interests
**Foreclosure terminates all interests that are **junior** to the foreclosed mortgage.**
- **Senior interests remain** and buyer takes property subject to them
**General Rule:** First in time, first in right
**Exceptions:**
- **Purchase-money mortgages**: Priority over earlier interests
- **Recording acts**: May reverse priority if earlier interest was not recorded
- **Subordination agreements**: Prior interest agrees to be junior
- **Mortgage modification**: Modified portion is subordinate if it prejudices junior lenders
74
Distribution of Foreclosure Sale Proceeds
**Proceeds distributed in this order:**
1. **Costs of sale** (e.g., court fees, attorney)
2. **Foreclosing mortgagee’s claim**
3. **Junior lienholders** in priority order
4. **Debtor/mortgagor** receives surplus (if any)
75
Deficiency Judgment – Foreclosure
**Deficiency = foreclosure sale proceeds < debt owed**
**Majority Rule:**
- Mortgagee may sue debtor for deficiency
**Minority Rule:**
- No deficiency for **purchase-money mortgages**
- No deficiency after **non-judicial sale**
- Recovery may be limited to **fair market value**
76
Easement – Definition and Types
**Easement**: A nonpossessory right to use another's land.
**Types:**
- **Affirmative**: Right to do something on land (e.g., access road)
- **Negative**: Prevents landowner from doing something (e.g., blocking light)
- **Appurtenant**: Benefits another parcel (transfers automatically)
- **In gross**: Benefits person/entity (burden transfers, benefit may not)
77
Creation of Easements (WIPE)
Easements may be created by:
**W – Writing**: Must satisfy Statute of Frauds
**I – Implication**: Prior use, continuous, apparent, reasonably necessary
**P – Prescription**: Like adverse possession but no exclusivity
**E – Estoppel**: Good-faith reliance on permission to use land
78
Termination of Easements (DAMPER)
Easements can terminate by:
**D – Destruction** of the servient estate
**A – Abandonment**: Clear intent + physical act
**M – Merger**: Same owner of dominant + servient estates
**P – Prescription**: Servient owner blocks use as AP
**E – Estoppel**: Detrimental reliance by servient owner
**R – Release**: Writing that satisfies Statute of Frauds
79
License vs. Easement
**License**: Revocable privilege to use land (no writing required).
- Becomes irrevocable only by **detrimental reliance** or when **coupled with an interest**
- If an attempted easement fails the Statute of Frauds → creates a **license**
80
Profit
**Profit**: Nonpossessory right to **enter and remove natural resources** (e.g., minerals, timber).
- Created and analyzed like an easement
- Cannot be created by **necessity**
81
Duty to Maintain Easement
**Easement owner** has the right and **duty to maintain** the easement.
- Must keep it in **reasonable repair**
- May seek **contribution** from co-users (e.g., servient owner who also uses it)
- Contribution is **proportional to use**
**Servient owner** generally has **no duty** to maintain unless otherwise agreed
82
Real Covenant – Definition and Remedies
**Real covenant**: A promise concerning land use that runs with the land.
**Enforced by:** Suit for **damages** (legal remedy)
83
Equitable Servitude – Definition and Remedies
**Equitable servitude**: A promise concerning land use enforceable in **equity**.
**Enforced by:** Suit for **injunction**
84
Requirements – Real Covenant
**To run with the land:**
- **Writing** (Statute of Frauds)
- **Intent** for it to bind successors
- **Touch and concern** the land
- **Notice** (for burden to run)
- **Privity:**
- **Horizontal privity** (original parties had mutual land interest)
- **Vertical privity** (successor has same or lesser interest)
85
Requirements – Equitable Servitude
**To bind successors in equity:**
- **Writing** (unless implied reciprocal)
- **Intent** to bind successors
- **Touch and concern** the land
- **Notice** to burdened party
**Privity not required**
86
Implied Reciprocal Servitude
**Applies to planned communities or subdivisions.**
**Requirements:**
- **Common scheme or plan**
- **Restriction is negative** (e.g., no commercial use)
- **Notice** (actual, inquiry, or record)
**Gives rise to enforceable equitable servitude even without writing**
87
Termination of Covenants and Servitudes
**Covenants and servitudes may terminate by:**
- **Release** (in writing)
- **Merger** (same person owns burdened and benefited land)
- **Abandonment**
- **Estoppel**
- **Prescription**
- **Laches**
- **Changed conditions** (restriction no longer serves purpose)
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Common-Interest Ownership Communities
**Common-interest ownership communities** (e.g., condos, HOAs):
- Individual units owned separately
- Common areas managed by an **association**
**Association powers and duties:**
- Governed by **declaration**, bylaws, and statutes
- Managed by a **board of directors**
- Enforce **rules, covenants, and dues**
- Provide **services** to members
**Members must pay dues**, which are enforceable as covenants running with the land
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Fixtures
**Fixture**: Tangible personal property attached to real property so that it becomes part of the real estate.
**Rules:**
- Structures and incorporated materials become part of the property
- **Buyer** is entitled to fixtures unless seller reserves right to remove in contract
- **Good-faith trespassers** may remove or recover value of improvements
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Zoning – General Rule
**Zoning laws** are enacted under a government's **police power** to regulate land use.
**Standard:** Must be **rationally related** to a **legitimate public purpose** (e.g., health, safety, welfare)
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Types of Zoning Laws
**Types of zoning laws may regulate:**
- **Use**: Residential, commercial, industrial
- **Development**: Density, setbacks, height
- **Special concerns**: Environmental, historic, flood zones
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Challenges to Zoning Laws
**Zoning laws may be challenged under:**
- **Takings Clause (5th Amend.)**: Law is a taking if it eliminates all economically viable use
- **Substantive Due Process (14th Amend.)**: Must satisfy rational basis (unless fundamental rights affected)
- **Equal Protection (14th Amend.)**: Strict scrutiny if suspect class is affected
- **Fair Housing Act**: Prohibits discriminatory impact based on protected characteristics
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Nonconforming Uses and Variances
**Existing Nonconforming Use:**
- Allowed to continue under old zoning rules (grandfathered in)
- May not expand or substantially change use
**Post-Ordinance Use:**
- May require:
- **Variance**: If compliance causes unnecessary hardship
- **Special Exception**: Allowed deviation under the ordinance
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Riparian and Prior Appropriation Water Rights
**Riparian Doctrine (Eastern states):**
- Water belongs to landowners along watercourse
- Reasonable use allowed, domestic use prioritized
**Prior Appropriation Doctrine (Western states):**
- Rights based on **priority of beneficial use**
- First in time, first in right
- Rights are transferable and not tied to land
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Support Rights – Lateral and Subjacent
**Lateral support:**
- Strict liability for damage to **undeveloped** adjoining land
- For **improved land**, only liable if negligence or improvements did not cause collapse
**Subjacent support:**
- Owner of mineral rights must support surface and existing structures
- Liable for damage to later-added structures only if **negligent**
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Air Rights
**Air rights** include the right to **reasonable use and enjoyment of the airspace** above land.
- Must not unreasonably interfere with another's use and enjoyment
