Real Prop Flashcards
(106 cards)
1
Q
Adverse Possession
A
Allow one who has wrongfully entered a property to obtain possession of that property under the following requirements:
- actual possession
- open and notorious and visible possession
- hostile possession
- continuous use for the given statutory period.
2
Q
actual possession
A
the claimant must have exclusive use of the property, which means he must physically occupy the premise.
- exclusive use: the true owner must be excluded from the premises and the property may not be open to public.
- partial possession: a reasonable percentage of the property must be actually used. Claimant (C) may only claim possession of the portion of the property he actually used.
- tenant: C may lease the premise to a tenant to satisfy the actual possession element.
3
Q
Open and notorious and visible possession
A
the claimant must possess and use the property in a way that a typical owner of similar property would use the property.
- the use must be sufficiently open to put the true owner on notice of the trespass by the adverse possessor.
4
Q
Hostile possession
A
Possession of the land must be without owner’s consent
- hostile possession may mean impermissible, the possession does not need to be done in a hostile manner.
- Boundary disputes: where one property owner occupied the land, mistakenly thinking it is his own, it can be deemed hostile.
- Ouster of a co-tenant is required to find a hostile possession with concurrent property owners since all co-tenants have equal right of possession of the property.
ouster occurs when a co-tenant claims exclusive right to possession and refuses occupancy to his co-tenant.
5
Q
Continuous use for the given statutory period
A
- statutory period: common law = 20 years; state laws varies but most require 15 years.
- continuous possession = the owner may not reenter to regain possession during the statutory time. If he does, the clock starts over.
- seasonal use may still satisfy continuous possession if this is the way a typical owner of similar property would use the land.
- tacking: one adverse possessor may tack his time with the time of another adverse possessor to meet the statutory requirement if the two possessors are in privity.
6
Q
Effect of adverse possession
A
AP does not convey marketable title. However, the title can be perfected and made marketable by means of a judicial action to quiet title.
7
Q
Land sale contract
A
The contract for a conveyance of an interest in real estate typically governs the agreement until the time of closing. After closing the deed became the operative document under the merger doctrine.
8
Q
Statute of Fraud
A
requirements:
- K in writing
- names of the parties
- signed by the party to be bound
- sufficiently describe the land, and
- state some consideration (purchase price and manner of payment)
9
Q
SOF Part Performance Exceptions
A
- Possession of the land by the purchaser
- Substantial improvement are made to the premises
- Payment for part or all of the purchase price.
Most courts require at least 2 exceptions are met to apply the exception.
PIP
10
Q
Marketable title
A
implied promise in every land sale contract that the seller covenants to transfer marketable title at the time of closing.
Marketable title = title free from reasonable doubt about the seller’s ability to convey what he purports to convey.
11
Q
Doctrine of equitable conversion
A
once the contract is signed, the buyer is deemed the owner of real property even before closing.
12
Q
Remedy for breach of land sale contract
A
- damages = difference between the market price and the contract price.
- specific performance: permanent injunction where court orders D to perform the contract as promised.
13
Q
Requirements for specific performance
A
- valid contract
- contract conditions imposed on P are satisfied or waived.
- inadequate legal remedy: real property is always unique
- mutuality of performance
- feasibility of enforcement
- No defenses such as laches or unclean hands.
Mnemonic: Chocolate Cheesecake Is My Favorite Dessert
14
Q
Mortgage
A
a financing arrangement that conveys a security interest in land where the parties intended the land to be collateral for the repayment of a monetary obligation.
Buyer/borrower = mortgagor
Lender = mortgagee
15
Q
Rights of mortgagee and mortgagor
A
buyer-mortgagor has right to possession of the property and title; the creditor-mortgagee has a lien, which grants the right to take the land and foreclose. Mortgages are transferaable.
16
Q
Foreclosure
A
a process by which the mortgagee may reach the land in satisfaction of the debt if the mortgagor is in default on the loan.
- Judicial foreclosure: mortgagee must foreclose by proper judicial proceedings.
- Priority of loans: Fees from attorneys/trustees> Purchase Money Mortgage or secured senior interests > secured junior interest > unsecured interests.
17
Q
Purchase Money Mortgage (PMM)
A
mortgage given to secure a loan that enables the debtor to originally purchase the property. A PMM receives priority over non-PMM mortgages, but a PMM may not get a deficiency judgment against the debtor.
18
Q
Deficiency Judgment
A
occurs when the property is worth less than the amount owed on the outstanding loan. Lender can sue debtor personally for the deficiency different only if:
- there was judicial foreclosure; and
- the loan was not PMM
19
Q
Antideficiency statutes
A
A lender cannot receive more than the value of the loan. Any excess remaining is returned to the buyer.
20
Q
Redemption
A
When a mortgage is paid off, the property is redeemed from the mortgage. Some states have statutory redemption allowing the mortgagor a fixed period of time after forclosure to redeem the mortgage.
21
Q
Deed of trust vs. mortgage
A
similar to a mortgage, except the debtor is the trustor and the deed of trust is given to a third-party trustee.
22
Q
Installment contract vs. mortgage
A
Buyer makes a down payment and pays off the balance in installment. Deed is converted when the buyer paid off the installment.
23
Q
Conveyance by deed
A
a deed is a document that serves to pass legal title from the grantor to the grantee when it is lawfully executed and properly delivered.
24
Q
Deed requirements
A
- identification of the parties;
- In writing and signed by the grantor, which is witnessed or notarized.
- adequate description of the property
- words of intent (“grant”)
- no consideration is required
25
Three types of deeds
1. Quitclaim deed:
2. General warranty deed:
3. Statutory special warranty deed
26
Quitclaim deed
conveys whatever interest the grantor actuall has in the property but contains no covenants of title (promises about what the interest is)
27
General Warranty deed
warrants against all defects in title and contain **six covenant for title**. Three are present covenants and three are future covenants.
**Present Covenants**: if there is a breach, it is breached at the time of the sale
1. **seisin**: grantor warrants he **owns what he purports to own**
2. **right to convey**: grantor warrants he has the **power to make the conveyance**
3. **against encumberances**: grantor warrants there are **no mortgages, liens, easements, or use restrictions** on the land.
**Future Covenants**: run with the land, continuous, and it is breached at the time the grantee is disturbed in possession.
1. Warranty of title: grantor promises to **defend** should ther ebe any **lawful claims of title** asserted by others
2. **Quiet enjoyment**: grantor promises grantee will not be disturbed in **possession** by any third parties' **lawful claims of title**.
3. **Future assurance**: grantor will do whatever **future acts are reasonably necessary to perfect title**
28
Statutory special warranty deed
some state enforce promises by statute where the grantor promises that he hasn't conveyed the property to others and that the estate is free from encumberances.
29
delivery of deed
**Proper delivery** + **Acceptance** = effective deed.
**Title passes immediately** to the grantee upon proper delivery, thus it is **irrevocable**
**Delivery requirements**
- **Intent of present transfer**: words or conduct indicating the grantor's **intent to make a present transfer of the deed.**. **recording** and **grantor physically delivering the deed** are strong presumption of intent.
- **Acceptance of the deed**. Rejection defeats delivery.
30
Merger doctrine
once the property closes, the **deed**, rather than the underlying land sale contract, becomes the **operative document governing the transaction**.
31
Breach of covenants
- Issues with title: purchase price or the cost to defend or perfect the title, whichever is lesser.
- Encumbrance: difference in value with and without encumberance or the cost of removing encumbrance, whichever is lesser.
- Defenses to the breach: unclean hands, laches, and waiver.
32
Ademption
The specific property is no longer part of the estate at the time of the testator (T)'s death. The general rule is that the gift is **adeemed**.
33
Exoneration
when a person receives a bequest of a specific property, and **that property is subject to a lien** or mortgage, the **encumbrance will be paid off** with the estate's personal property, and the recipient receives the property **free and clear** of the mortgage, unless T indicates a different intent.
34
Lapse and anti-lapse
Lapse (common law): if B predeceased T, the bequest fails.
Anti-lapse (state statute): the predeceased B's heirs will inherit the bequest.
35
Recording acts
a way for buyer to ensure he is getting good title.
- **Common law**: without a recording act in place, CL follows **"first in time, first in right"**.
**Three types of recording acts**
1. **Pure race statutes**: the first to record wins. (not commonly used)
2. **Pure notice statutes**: a subsequent bona fide purchaser (BFP) prevails over a grantee that didn't record.
3. **Race-notice statute**: a subsequent BFP that records first prevails over a grantee that didn't record first.
36
language examples of recording acts
pure notice: "No conveyance or mortgage of real property shall be good against subsequent purchaser **for value** and **without notice** thereof, unless the same be recorded according to law."
race-notice: "no conveyance or mortgage of real property shall be good against subsequent purchasers **for value** and **without notice**, who shall **first record.**"
37
Bona fide purchaser (BFP)
Recording acts protect BFPs and mortgagees. Recording acts don't protect donees, heirs, and devisees because they don't take "for value".
BFP is one who takes for value and is without notice of the prior interest.
38
Three types of notice
1. **actual notice**: prior to closing, the buyer has **actual subjective knowledge** of a prior, unrecorded interest.
2. **inquiry notice**: the purchaser is in possession of facts, or could make an inspection of the property, which would lead a **reasonable person to make further inquiry**. Notice is valid whether purchaser makes the inquiry or not.
3. **record (constructive) notice**: the prior interest **was properly recorded within the chain of title**. (**Exception: wild deeds**--- recorded but not in such a way that a reasonable search of the grantor-grantee index would disclose it.)
**Mnemonic: AIR**
39
Estoppel by deed
if one purports to convey an interest in realty he does not own, but he subsequently obtains an interest in that realty, he cannot deny the validity of that conveyance and the estate will automatically transfer to the grantee.
note: does not apply to quitclaim deed
40
Shelter doctrine
one who takes from a BFP will **"stand in the shoes of the BFP"** and can prevail against any entity against which the transferor-BFP would have prevailed in his own action.
41
Fee simple absolute
conveys absolute ownership of potentially infinite duration.
Most unrestricted and longest estate.
42
Fee simple defeasible
allows a property to be held or conveyed to another; however, the property is subject to a stated limitation.
Three types:
1. Fee simple determinable
2. Fee simple subject to condition subsequent
3. Fee simple subject to an executory limitation
43
Fee simple determinable
- terminates automatically at the occurrence of a specified event and the property goes back to grantor.
- It is created by words of duration, such as "so long as," "during", "while", "unless", etc.
- **Possibility of reverter** is the future interest the grantor hold
44
Fee simple subject to condition subsequent
has the potential to terminate an estate at the occurrence of a stated event, but the termination is not automatic.
- **Right of reentry**: the future interest the grantor retains, but it is not automatic and must be exercised to have effect.
- **created by words that carve out a right of reentry** in the grantor and includes conditional language like "but if", "provided that", or "upon condition that"
45
Fee simple subjected to an executory limitation
automatically terminates a preceding estate at the occurrence of a stated event, but the estate then passes to a third person rather than reverting to the grantor.
- Executory interest is the future interest the third party holds, subject to RAP.
46
Life estate
An interest that lasts for the lifetime of a person.
1. a life estate pur autre vie is similar to a life estate but lasts for the lifetime of an identified third party.
2. **defeasible**: a life estate may be defeasible such that the life estates ends before the life tenant dies if the limiting event occurs.
3. **conveyable**: a life estate holder may convey his interest, but not an estate greater than what is held, so for no longer than his own lifetime or the pur autre vie lifetime.
4. **waste**: a life tenant has a duty not to commit waste on the property.
47
Possibility of reverter
the future interest of the grantor in fee simple determiinable.
48
Right of reentry
the future interest of the grantor of fee simple subject to a condition subsequent.
49
Reversion
created when the holder of an estate transfers to another something less than the entire estate. (it is vested and not subject to RAP)
50
Remainder
A future interest that can only become possessory upon the expiration of a prior possessory estate created by the same instrument. A remainder never follows a defeasible fee.
1. vested remainder: created in an ascertained person and that is not subject to a condition subsequent.
2. contingent remainder: created in an unascertained person (i.e. unborn), or one that is subject to a condition precedent, or both.
3. alternative contingent remainder: created where both contingent parties have the capacity to take over and it pivots on the same condition. (e.g. to A for life, then to B and his heirs if B marries C, otherwise to D)
51
Executory Interest
interest in favor of a future grantee and follows a fee simple subject to an executory limitation. Two types:
1. Shifting executory interest: always follows a defeasible fee and cuts short the prior interest.
2. Springing executory interest: becomes possessory at some point in the future, without cutting short a prior interset.
52
Rule Against Perpetuity (RAP)
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.
Applies to:
1. contingent remainders
2. executory interests
3. options "in gross" or right of first refusal to purchase land
4. class gift
5. powers of appointment
Does not apply to certain types of interest because it is not possible for them to violate RAP
1. vested remainders (vests at creation)
2. reversion (vest at creation)
3. possibility of reverter (vest at creation)
4. right of reentry (vest at creation)
53
RAP 5-step analysis
1. classify the future interests to determine if RAP applies
2. identifies the measuring life in being
3. identify the triggering event (when an interest must vest or fail)
4. analyze the possibilities of what could possibly happen (postpone the triggering event 21 years after the lives in being are dead and assess)
5. reclassify the interest
54
Joint property ownership
three types:
1. joint tenancy
2. tenancy in common
3. tenancy by the entirety
55
joint tenancy
when two or more people hold a single, unified interest in a property with a right of survivorship.
Characteristics
- automatic right to survivorship: at the death of one joint tenant, the remaining joint tenant automatically becomes the owner of the deceased joint tenant's interest.
- equal right to occupy the entire premises.
- equal share
- at common law, a joint tenancy is presumed, but today a tenancy in common is presumed unless the right of survivorship is clearly expressed.
56
Creation of a joint tenancy
**Four unities and one express right of survivorship**:
1. time: interest created at the same time
2. title: parties take in the same title
3. interest: identical equal interests
4. possession: same right to possession of the premises
5. language: must include the **express right to survivorship**
57
severance of a joint tenancy
unilateral action by one joint tenant may sever the joint tenancy
- Conveyance
- Joint tenancy **cannot be devised by will**
- Mortgage
58
Severance of joint tenancy by conveyance
- severance with two joint tenants: the remaining joint tenant will hold the property with the new owner as tenants in common.
- severance with three or more joint tenants: the new owner will take his portion as a TIC to the remaining joint tenants, but the remaining joint tenants will continue to have a joint tenancy with each other only.
59
Severance of a joint tenancy by mortgage
One joint tenant may not encumber the interest of the other joint tenant. The effect of one joint tenant obtaining a mortgage is dependent on whether the jurisdiction adopts the lien theory or title theory approach.
1. lien theory (majority): the execution of a mortgage by one joint tenant does not sever the joint tenancy.
2. title theory (minority): the execution of a mortgage severs the joint tenancy as to his share only.
3. For both theories: if the mortgage is foreclosed and the property sold, the joint tenancy is severed.
60
Tenancy in common
concurrent estate where two or more own a property with no right of survivorship
Characteristics:
1. no right of survivorship
2. equal right to occupy
3. nonequal shares acceptable
4. co-tenant may sell, will, or gift his interest
5. TIC is presumed in most jurisdictions when there are multiple owners.
61
Ouster
if a co-tenant has refused occupancy to his co-tenant and claims an exclusive right to possession, this constitutes an ouster.
- the co-tenant must account to his ousted co-tenant for the fair rental value of the premises.
- an ousted co-tenant may also bring an action to regain possession.
62
Tenancy for years
a lease for a fixed period of time.
- SOF writing required if the lease term is greater than one year.
- Automatic termination: no notice is required to terminates on the end date of the time period.
63
Periodic tenancy
automatically continues from one period to the next, unless one of the parties terminates the lease by giving notice to the termination.
- can be created by implication if the lease includes a start date but no stated end date.
- written notice is required to termiinate
- holdover tenant: lease terminated, but the tenant remains in the premises and tenders rent, which the landlord accepts. A holdover tenant is considered to have a periodic tenancy with the time period for the tenancy being the time period of the previously expired lease.
64
Tenancy at will
tenancy for no fixed period of time, which can be terminated at any time.
- created by express agreement or by implication.
- can be terminated at any time by either party.
65
Tenancy at sufferance
created when a tenant wrongfully holds over past the expiration of a valid lease.
66
Duty to pay rent
T has a duty to pay rent in the amount agreed to. T may have the following **defenses** available for the nonpayment of rent:
1. **failure to deliver possession** of the premises.
2. breach of the **covenant of quiet enjoyment**
3. **constructive eviction**
4. **destruction of the premises** through no fault of the landlord or the tenant.
5. potential contract defenses
6. surrender of premises by the tenant, which the landlord accepts.
7. re-letting of the property after an abandonment done on behalf of the tenant.
67
Possession of the premises
holdover tenant: common law allows reasonable force to remove, modern law prohibits self-help, such as manually removing the tenant.
- **Eviction**: L may typically terminate a lease for a material breach. L must evict through the courts or continue the rental relationship, give notice, and sue for damages.
- **Abandonment**: if T abandons the premises, L at his option may 1) accept the surrender and terminate the lease; or 2) re-let on behalf of the tenant (T must be notified); or 3) leave the premises vacant and sue for rent as it becomes due.
68
Implied covenant of quiet enjoyment
implied in every lease. L warrants that he **will not interfere with T's use and enjoyment of the premises.**. Can be breached by:
- **Constructive eviction**
- **Actual eviction**
- **Partial actual eviction**
69
Constructive eviction
when the premises are in such disrepair they are virtually uninhabitable. It is treated as an eviction. Applies to both residential and commercial lease.
Requirements:
1. the premise are virtually inhabitable for their intended use because of a **substantial interference** with the property use and enjoyment caused by L;
2. **Notice** is given to L by T;
3. L **fails to meaningfully respond**; and this
4. causes T to **actually move out within a reasonable time.**
70
actual eviction
tenants excluded from entire premises due to a holdover tenant or paramount title holder
71
partial actual eviction
1. landlord makes it physically impossible for T to occupy **all or some portion** of the premises.
2. T may **withhold the entire rent** and does not have to move out.
72
Implied warranty of habitability
applies to **residential leases only**
requires that the premise must be **fit for human habitation**. If not, T has the option to:
1. Terminate the lease and move out; or
2. Make repairs and deduct the cost from the rent; or
3. Pay reduced rent, remain on the premises, and sue for damages.
73
Retaliatory eviction
Retaliatory eviction is barred.
T may not be evicted/have a periodic lease terminated/have a tenancy for years not renewed because T has asserted that the premises are not habitable.
74
doctrine of waste
T (applies to a life tenant or a regular rental tenant) must prevent waste and cannot damage leased premises without effecting repair.
Three types of waste:
1. **voluntary waste**: T engaged in conduct, intentionally or negligently, that causes a **decrease in the value** of the premise.
2. **permissive waste**: T **neglects** the property and it falls into disrepair or does not make ordinary repairs.
3. **ameliorative waste**: T makes **substantial alterations to the property even if they increase the value** of the premise. T must restore it to the original condition.
75
Trade fixtures
affixed to the real estate by a commercial tenant for use in business.
**strong presumption that trade fixtures are removable**. T is responsible for repairing any damage resulting from its removal.
75
Fixtures
items that were once moveable chattel but that have become **so attached to the premise they are deemed fixtures** and considered part of the real estate.
Factors to determine if an item is a fixture:
1. **method of attachment**: item is firmly imbedded in or permanently attached to the real estate.
2. **adaptability**: the item is **peculiarly adapted** or fitted to the real estate.
3. **removal**: removing the item would **destroy the chattel or cause damage to the real estate.
4. **Intention**: for owners who add chattel to their own property, courts look at their **objective intention**. But courts will also look at the intentions of T or L who add chattel as well.
5. **agreement**: for L/T, courts look at whether there was an agreement in their lease; for owners courts look at agreements in the purchase contract with the buyer and owner/sellter.
Mnemonic: MARIA
76
Assignment
the transfer of the entire interest remaining on the lease term.
- new tenant is personally liable to L
- old T is also liable to L for the rent, unless L specifically releases the old T by a novation.
77
Sublease
The transfer of anything less than the entire interest remaining on the lease term.
- new tenant is not personally liable to L
- old T is liable to L
78
Easement
An easement is the right to use the land of another. Easement are nonpossessory property interests.
79
Affirmative easement
entitle the holder to do something on another's land.
80
Negative easements
prevent the landowner from doing something on his own land. (uncommon)
81
Appurtenant easement
an easement that benefits a particular parcel of land and only occurs when easement benefit is tied to a particular piece of land. There are **two estates** created by an appurtenant easement:
- **dominant estate is the benefited parcel**---the holder of the easement. Possessor must benefit from his **physical use and enjoyment** of the tract of land.
- **servient estate is the burdened parcel**---the parcel providing the benefit to the dominant estate.
82
express creation in writing in a deed or will
- SOF applies
- **reservation in grantor**: a type of express easement where the grantor reserves for himself the right to use the land when passing title to the grantee.
82
Easement in gross
An easement whose benefit is provided to an individual and is not tied to a particular piece of land.
83
Five ways to create an easement
1. express creation
2. creation by implication from prior use
3. easement by necessity
4. easement by prescription
5. easement by estoppel
84
creation by implication from prior use
Four requirements:
1. land was **originally one parcel** with common ownership;
2. The **land is severed** into more than one parcel;
3. The **use of the property existed prior to the severance**;
4. The easement is **reasonably necessary** to the dominant land's use and enjoyment of the property.
85
Easement by necessity
1. common ownership of the dominant and servient parcels must exist at some point.
2. easement is strictly necessary. The necessity must exist at the time of the conveyance. e.g. landlocked parcel.
3. prior use is not required.
86
Easement by prescription
it is obtained by using the same principle as adverse possession. Requires:
1. actual use
2. open, notorious, and visible use of the property
3. hostile use
4. continuous use for the given statutory period. Tacking is allowed.
86
Easement by estoppel
occur where the servient parcel allows use of the property such that it is reasonable that the user will substantially change his position in reliance on the belief that the permission will not be revoked.
87
Scope of easement
1. present and future needs: courts assume the easement intends to meet both present and future needs of the dominant parcel due to **normal, foreseeable development** of the dominant estate.
2. excessive use: increased use that unreasonably interferes with the use of the servient estate is not permitted.
3. remedy for excessive use is an injunction and/or damages, but the easement will not terminate.
88
Maintenance and repair of easements
1. servient owner is not required to repair and maintain the easement
2. dominant owner has an implied right to repair and maintain the easement unless both estates make use of the easement, then the court will apportion the repair costs between them based on their use.
89
transfer of easement
- servient estate: an easement runs with the land except if the purchaser of the servient estate is a BFP who took for value with no notice.
- dominant estate: appurtenant easements run with the land; in gross easement is not transferrable under common law, but commercial easement is transferrable under modern law.
90
Termination of easement
1. Estoppel: the servient owner materially changes position in reasonable reliable on the easement holder's assurance that the easement will no longer be enforced.
2. Necessity: easement by necessity ends when the necessity ends.
3. Destruction of servient land, so long as it is not willful destruction by the owner.
4. Condemnation of servient estate by eminent domain.
5. Release in writing by easement holder to the servient owner.
6. Abandonment action: the easement holder demonstrates by physical action the intent to never use the easement again. Words alone or mere nonuse will not be sufficient.
7. Merger doctrine: the easement is extinguished when title to both dominant and servient parcels become vested in the same person.
8. prescription: an easement can be terminated by employing the principals of prescription where there is an adverse, continuous interruption of the easement for the statutory period.
**Mnemonic: END CRAMP**
91
Easement essay approach
1. identify the type of easement (affirmative or negative) (appurtenant or in gross), and if appurtenant, identify the parcels (dominant and servient);
2. identify how the easement was created
3. discuss any of the following issues if they are raised by the facts: scope, maintenance/repair, transfer and/or termination.
92
Real covenants
written promises between two parties about how land is to be used that meet certain technical requirements, such that the promises "run with the land"
The remedy for breach is money damages.
93
Burden to "run with the land" requirements
1. writing required between original parties
2. intent that the promise applies to successors
3. must "touch and concern" the land. For servient parcel, this means the promise restricts the use of the servient parcel in some way.
4. horizontal and vertical privity is required for the burden to run.
5. Notice is required (can be actual, inquiry, or constructive)
6. R3d no longer requires touch and concern or privity. All real covenants are presumed valid unless they are illegal, violate public policy, or are unconstitutional.
**Mnemonic: WITCH VaN**
94
Horizontal and Vertical privity
- Horizontal privity: refers to the privity between the original promising parties. The must have shared some interest in the land apart from the covenant itself.
- Vertical privity: requires that the successor now is the holder of the entire interest that the party making the covenant had.
94
Termination or modification of covenants
allowed in the following circumstances:
1. destruction, release, estoppel, abandonment, merger, condemnation (same as easement); and
2. changed conditions: conditions have changed so significantly that the purpose of the covenant is impossible to accomplish.
95
Benefit to "run with the land" requirements
1. writing between original parties
2. intent that the promise apply to successors
3. must "touch and concern" the land. For the dominant parcel, this means the promise benefits the dominant parcel by increasing the use or enjoyment of the property.
4. vertical privity is required.
5. no horizontal privity or notice is required.
**Mnemonic: What Is The Common Value**
96
Equitable servitude
restrictions on how land may be used. Similar to real covenant but has no privity requirements.
Remedy for breach is an injunction in equity.
97
requirements for equitable servitude to "run with the land"
1. writing
2. intent
3. "touch and concern": for dominant parcel, the promise benefited the dominant parcel by increasing the use or enjoyment of the property; for servient parcel, the promise restricts the use of the servient parcel in some way.
4. notice is required
5. No horizontal or vertical privity required.
98
Implied reciprocal servitude
court can imply a reciprocal equitable servitude if the original owner intended a "common plan or scheme" and the purchaser has notice of the scheme. The remedy for a breach is an injunction in equity.
- the common plan or scheme can be evidenced by a recorded plat, a general pattern of restrictions, or an oral representation to early buyers.
- notice is required.
- no SOF
- also referred to as reciprocal negative servitude because it applies only to negative covenants and servitudes.
99
License
License is the mere right to use the licensor's land for some specific purpose, and it is. revocable at the will of the licensor.
- Difference from easement: a license may be freely revoked and is merely a privilege and not an interest in the land.
- oral agreements produce a license, not an easement.
100
Water rights: drainage of surface water
- An owner may use all surface waters he wants
- Getting rid of surface water: three different approaches--
1. common enemy: owner may cast water onto neighbor's land
2. natural flow theory: owner has strict liability for interfering with natural flow
3. reasonable use doctrine allows owner to act reasonably
101
Riparian rights (waterfront streams and lakes that abut property)
- reasonable use theory: each riparian owner may use as much water as he reasonably needs (courts consider the purpose and extent of the use)
- prior appropriation doctrine: used by some states, including CA. An owner (need not be riparian) must obtain a permit to use the water, and priority to use is determined by permit date.
102
right to lateral and subjacent support
every landowner has a right to receive necessary physical support from adjacent soil (lateral support) and underlying soil (subjacent support).
