Real Property Flashcards
(133 cards)
1
Q
Joint Tenancy
A
Two or more people owning a single, unified interest in a property with a right of survivorship which gives the deceased partner’s share automatically to the surviving partner. The joint tenancy is alienable but not devisable or descendible.
2
Q
Joint Tenancy Creation
A
Joint tenants must take their interest 1) at the same time, 2) by the same title, 3) with identical interests and 4) equal right to possess the whole. The right of survivorship must be clearly expressed. A strawman may be needed to create the relationship.
3
Q
Joint Tenancy Severance
A
May be through partition, sale or mortage.
4
Q
Partition
A
A joint tenancy is severed when the interests are divided either by voluntary agreement or by court ordered sale or by court-ordered division of property.
5
Q
Tenancy by the entirety
A
A marital interest in property with right of survivorship. Creditors of one spouse cannot reach property owned this way and neither spouse can defeat the right of survivorship alone through transfer.
Tenancy by the entirety is presumed in any conveyance between married partners unless explicitly stated otherwise.
6
Q
Tenancy in Common
A
Two or more people own property with no right of survivorship. Each interest is descendible, devisable and alienable. Each co-tenant owns a part of the property with the right to possess the whole.
7
Q
Universal Tenant Rights and Duties
A
Applies to all landlord-tenant relationships:
- Possession: May not exclude other co-tenants from any part of the property (called wrongful ouster).
- Adverse possession: Co tenants cannot acquire title unless there is ouster shown with hostility.
- Rent from Co-tenant in exclusive possession: Absent ouster, a co-tenant in exclusive possession is not liable to others for rent.
Rent from third parties - must provide co-tenants fair share
Carrying Costs: Each tenant is responsible for carrying costs based on undivided share of the property (taxes, mortgage and interest payments).
Repairs: May seek contribution for repairs that are reasonable or necessary if co-tenants were given notice
Improvments - no right to contribution for improvements (at partition co-tenant may seek credit for any increase in value due to improvements or is liable for any diminution in value that the improvements caused.
Waste: Co-tenant must not commit waste
Parition: May bring an action for partition by voluntary agreement or court action.
8
Q
Universal Tenant’s Rights and Duties - Rent
A
Absent ouster, a co-tenant in exclusive possession is not liable to the others for rent.
9
Q
Universal Tenant’s Rights and Duties - Carrying Costs
A
Applies to all landlord-tenant relationships:
Carrying Costs: Each tenant is responsible for carrying costs based on undivided share of the property (taxes, mortgage and interest payments).
10
Q
Universal Tenant’s Rights and Duties - Repairs
A
Applies to all landlord-tenant relationships:
Repairs: May seek contribution for repairs that are reasonable or necessary if co-tenants were given notice.
11
Q
Universal Tenant’s Rights and Duties - Improvements
A
Applies to all landlord-tenant relationships:
Improvements - no right to contribution for improvements (at partition co-tenant may seek credit for any increase in value due to improvements or is liable for any diminution in value that the improvements caused.
12
Q
Universal Tenant Rights and Duties
A
Applies to all landlord-tenant relationships:
- Possession: May not exclude other co-tenants from any part of the property (called wrongful ouster).
- Adverse possession: Co tenants cannot acquire title unless there is ouster shown with hostility.
- Rent from Co-tenant in exclusive possession: Absent ouster, a co-tenant in exclusive possession is not liable to others for rent.
Rent from third parties - must provide co-tenants a fair share
Carrying Costs: Each tenant is responsible for carrying costs based on an undivided share of the property (taxes, mortgage and interest payments).
Repairs: May seek contribution for repairs that are reasonable or necessary if co-tenants were given notice
Improvements - no right to contribution for improvements (at partition co-tenant may seek credit for any increase in value due to improvements or is liable for any diminution in value that the improvements caused.
Waste: Co-tenant must not commit waste
Parition: May bring an action for partition by voluntary agreement or court action.
13
Q
Tenancy for Years
A
The lease is for a fixed number of years and has a definite end date.
14
Q
Periodic Tenancy
A
A lease that continues for successive intervals until one party gives notice of its termination
15
Q
Periodic Tenancy Creation
A
Implied: 1) No provision is mentioned but rent is paid in set intervals, 2) a tenancy for years fails due to the statute of limitations, 3) a tenancy for years ends and an implied periodic tenancy (holdover tenancy) is created unless the landlord gives notice of a change of terms or an increase of rent before the tenancy for years ends. Commercial leases create a year-to-year tenancy with the lease’s terms unless notice is given before the lease ends.
Express: Expressly calling it month to month or otherwise explicitly agreeing to terms.
Termination: Written notice is required with at least as much notice as one period in the term unless otherwise agreed. If the lease is year-to-year then notice must be given six months before the end of the lease.
16
Q
Tenancy at Will
A
A tenancy with no fixed duration that lasts as long as both parties desire. Either party can end at any time but a reasonable demand to vacate is required.
17
Q
Tenancy at Sufferance
A
When the tenant stays past the expiration of the lease while the landlord accepts rent. This ends went he landlord evicts or elects to hold the tenant to a new lease.
18
Q
Tenant Duties
A
1) Pay rent, 2) liable to third parties, 3) duty to repair
19
Q
Tenant Duties - Pay Rent
A
Duty to pay rent.
1) Tenant in Possession of Premises:
- LL can evict and hold tenants liable for past rent, or allow tenant to stay and sue for past rent. LL may not use self-help such as changing locks or removing belongings.
2) Tenant NOT in possession:
- LL can treat tenants abandonment as a surrender through words or acts indicating the tenant’s intent and accept (unless the lease is greater than one year - then must be in writing), hold the tenant liable for unpaid rent, or re-let the premises and hold tenants liable for the deficiency.
20
Q
Doctrine of Equitable Conversion
A
Once a contract is signed and each party is entitled to specific performance, equity regards the purchaser as the owner of the real property. The seller’s interest, which consists of the right to the proceeds of the sale, is considered to be personal property. This doctrine also affects the passage of title when a party to a contract dies before the contract has been completed. In general, it holds that a deceased seller’s interest passes as personal property and a deceased buyer’s interest as real property. If the seller dies, the bare legal title passes to the takers of his real property, but they must give up the title to the buyer when the contract closes. When the purchase price is paid, the money passes as personal property to those who take the seller’s personal property. If the buyer dies, the taker of his real property can demand a conveyance of the land at the closing of the contract. The majority rule is that takers of the real property will take it subject to the vendor’s lien for the purchase price. As a practical matter, the takers of the real property will have to pay the price unless the testator specifically provided to the contrary.
21
Q
Area Variance granting requirements
A
The owner suffers a hardship due to the way the land is currently zoned, and the variance will protect the public interest.
22
Q
Easement by necessity
A
Is created when the owner of a tract of land sells a part of the tract and by this division deprives one lot of access to a public road or utility line. When this happens, a right-of-way for absolute necessity is created by implied grant over the lot with access to the public road or utility line.
23
Q
Accession
A
Term used to describe the intent of the annexor to make the chattels a permanent part of the real estate.
24
Q
Fixture rules
A
Chattel that has been so affixed to land that it has ceased being personal property and has become part of the realty.
Common ownership refers to when a person owns both the land and the fixtures affixed to it. Divided ownership occurs when a landlord owns the property, but someone else affixes the chattel to the land. In both types of ownership cases, where the items become incorporated into the realty so fully that they lose their identity, they become part of the realty. Similarly, where identification of the chattel is still possible, but removal would cause considerable loss or destruction, the items are considered fixtures (like heating pipes in a house). For divided ownership cases, the question is whether the ownership of the chattel has passed to the landowner.
25
License
Permission to use the land of another.
Revocable anytime and not subject to the Statute of Frauds
26
Common-interest communities governance
IDs are usually created through legal documents drafted by the developer, which may change according to the community's needs. Typically, these types of communities are governed by an association made up of individual unit owners, most often through an elected board. There is a distinction between (1) association-imposed rules that are contained in the deeds or declaration of the CIDs and (2) rules subsequently adopted by property owner associations for community government. As to the latter category, regulations adopted by an association and not contained in governing documents, courts apply a “reasonableness” standard. Determining reasonableness requires balancing the utility of the purpose served by the restraint against the harm that is likely to flow from its enforcement. For rules not contained in governing documents, they will typically be considered reasonable if their purpose is to protect common property. See Restatement (Third) of Property: Servitudes 6.7(1)(b), stating that an association board has an “implied power to adopt reasonable rules to . . . govern the use of individually owned property to protect the common property.”
27
Cumulative Zoning Ordinance
creates a hierarchy of uses of land. Under a cumulative zoning ordinance, land that is zoned for a particular use may be used for the stated purpose or any higher use
28
Non-cumulative zoning ordinance
land may be used only for the purpose for which it is zoned. A use that exists at the time of passage of a zoning ordinance that does not conform cannot be eliminated at once. Generally, the nonconforming use may continue indefinitely, but any change in the use must comply with the zoning ordinance.
29
Variance
A waiver from a zoning requirement
30
Doctrine of Amortization
A means for terminating a nonconforming use
31
Private Nuisance
Private nuisances are interferences with a plaintiff’s use or enjoyment of his property. To make a claim for private nuisance, the plaintiff has the burden to show three elements: (i) the plaintiff has a possessory interest in the land; (ii)
the defendant performed an act that interfered with the plaintiff’s use and enjoyment of his property; and (iii) that the defendant’s interference with the plaintiff’s use or enjoyment of land was substantial and unreasonable. A substantial
interference is one that would be offensive, inconvenient, or annoying to a reasonable person. Unreasonable interference is evaluated by balancing the social usefulness of the interference with the local conduct of the community.
32
Joint Tenancy and Mortgages
A joint tenant’s execution of a mortgage on their share severs the joint tenancy to that share in states that follow the title theory of mortgages. In states that follow the lien theory of mortgages, the joint tenancy will not be severed.
33
Mortgage
A mortgage is the conveyance of a security interest in land, intended by the parties to be collateral. It is the combination of a debt and a voluntary lien on the property to secure that debt.
34
Foreclosure
The legal process where through judicial action land is sold and the proceeds are used to satisfy the debt.
35
Rent from a co-tenant in exclusive possession:
Absent ouster, a co-tenant in exclusive possession is NOT liable to others for rent.
36
Rent from Third Parties
A co-tenant who leases all or part of the premises to a third party must provide the other co-tenants with their fair share of the rental income
37
Carrying Costs:
Each co-tenant is responsible for their fair share of the carrying costs (i.e. insurance, maintenance, property taxes, and/or mortgage payments).
38
Tenant Repairs
A co-tenant can seek contribution for reasonable/necessary repairs IF he/she has informed the other co-tenants of the need to repair.
39
Tenancy for Years:
Tenancy for years is a tenancy for a fixed period of time where the date of termination is given.
40
Tenant Duty to Repair
If lease is silent then tenant must maintain the premises and make ordinary repairs as well as not commit waste.
41
Implied warranty of habitability:
The premises must be fit for basic human habitation.
Remedies: Move out, repair and deduct costs from future rent, reduce or withhold rent until the court decides fair rental value, remain in possession while paying rent and seeking money damages.
42
Constructive Eviction
If a landlord has constructively evicted his tenant, the tenant will be discharged from the duty to pay rent. Requires 1) substantial interference, 2) tenant to give notice, and 3) leave within a reasonable time; results in tenant being relieved of the obligation to pay future rent.
43
License
A license is mere privilege to enter another’s land for a specific purpose. Licenses are freely revocable by the licensor unless estoppel applies. No writing is required.
44
Eminent Domain:
The Fifth Amendment of the Constitution prohibits the government from taking private property for public use without justification.
45
Types of Takings for Fifth Amendment purposes
1) Physical, 2) regulatory if the government renders the land economically unviable.
Must pay just compensation.
Temporary deprivations of the property are not takings if the government's actions are reasonable.
46
Implicit or Regulatory Taking
A government regulation that, although not intended to be a taking has the same legal effect.
Occurs when a regulation removes the economic value from property.
47
Regulatory Taking (Penn Central Balancing Test)
1. The nature of the government action, 2) the private property owner's reasonable investment-backed expectations and 3) the level of diminution of value in the owner's private property value.
48
Takings Compensation
Just Compensation - generally measured by the Fair Market Value of a piece of property or the value as stipulated by the parties. Value of the property by owner is irrelevant.
49
Remedies to a Taking
Government must either 1) Compensate owner or 2) terminate the regulation and pay owner for damages that occurred while still in effect.
50
Warranty Deed
AKA General Warranty Deed: Warrants aganst all defects in title, which include defects caused by prior grantors.
Six covenants:
Present - Covenant of Seisin (promises owns the property), Covenant of Right to Convey (grantor promises she has power to make transfer), Covenant Against Encumbrances (Promises there are no servitudes or mortages on property)
Future - Queit Enjoyment (grantee will not be disturbed in his possession by third party's lawful claim), Covenant of Warranty - promises to defend the grantee if any others bring lawful claims of title, Covenant for Future Assurances - Promises to do whatever is necessary to perfect title in future if it turns out to be imperfect.
51
Notice
Notice: There are three types of notice that a buyer may be charged with: Actual Notice, Inquiry Notice, Record Notice.
52
Inquiry Notice
The buyer is on inquiry notice of whatever an examination of the property would show. This is regardless of whether or not the buyer actually makes an examination.
53
Duty to inspect
The buyer has a duty to inspect the premises before the transfer of title. Thus, if another person had possession the buyer will have inquiry notice.
54
Unrecorded Transactions
If the recorded instrument references an unrecorded transaction the buyer will have inquiry notice.
55
Deficiency Action
If the proceeds are less than the debt, then the mortgagee can bring a deficiency action against the debtor.
If the proceeds are more than the debt then the junior liens are repaid in order of their propriety with any remainder going to the debtor.
56
Foreclosure Results
Deficiency Action: If the proceeds are less than the debt, then the mortgagee can bring a deficiency action against the debtor.
If the proceeds are more than the debt then the junior liens are repaid in order of their propriety with any remainder going to the debtor.
57
Marketable Title:
Seller promises to provide marketable title at closing. This is title that is free from reasonable doubt. An easement could make a title unmarketable especially when the purchaser is buying the servient estate.
58
Present Covenants:
Breached at time of delivery.
Covenant of Seisin: Grantor promises they own the property.
Covnenant of Right to Convey: Grantor promises he has the power to make the transfer
Covenant against encumbrances: Grantor promises there are no servitude and/or mortgages on the property.
59
Future Covenants
If ever breached, a grantee is disturbed in possession AFTER the closing.
Covenant of Quiet Enjoyment: Grantor promises that the grantee will not be disturbed in his possession by a third party's lawful claim of title.
Covenant of Warranty: Grantor promises to defend the grantee if any others bring lawful claims of title.
Covenant for future assurances: Grantor promises to do whatever is necessary to perfect title in the future if title turns out to be imperfect.
60
Easement in gross
An easement that confers upon its holder only some personal or economic advantage which is unrelated to his or her use or enjoyment of the land.
In comparison, an easement appurtenant is one which the holder benefits in their physical use or enjoyment of the land. Such an easement requires two parcels of land, 1) a dominant tenement which derives the benefit of the estate and 2) a servient tenement which bears the burden.
61
Easement Appurtenant
An easement appurtenant is one which the holder benefits in their physical use or enjoyment of the land. Such an easement requires two parcels of land, 1) a dominant tenement which derives the benefit of the estate and 2) a servient tenement which bears the burden.
62
Ways an easement can be created
Express, implication, necessity, prescription or estoppel
63
Ways an easement can be terminated
Traditionally, easements are perpetual in nature. An easement may be terminated in one of the following ways: Estoppel, necessity, destruction, condemnation, release, abandonment, merger, prescription.
64
Record notice
A buyer is on record notice of a prior deed if, at the time the buyer takes, the prior deed was properly recorded.
65
Tenant NOT in Possession of Premises:
When tenants fail to pay rent while not in possession of the premises, landlords can treat the abandonment as a surrender through words or acts indicating the tenant’s intent and accept the abandonment, hold the tenant liable for unpaid rent, or re-let the premises and hold the tenant liable for the deficiency.
66
Duty to Repair
If lease is silent then tenant must maintain the premises and make ordinary repairs as well as not commit waste.
67
Duty to Deliver Premises:
Most states require landlords provide actual possession, allowing tenants to sue the landlord if the landlord doesn’t provide actual possession. Some states, however, require only legal possession be delivered.
68
Implied Covenant of Quiet Enjoyment
Tenant has the right to quiet enjoyment and use of the premises without interference from the landlord. The landlord need only control the common areas and not allow any nuisances, though the landlord is generally not liable for other tenant’s acts.
69
Implied Warranty of Habitability
Residential premises must be suitable for basic human habitation. The standard will be set by local housing codes and court rulings.
70
Implied Warranty of Habitability REMEDIES
Tenant may move out and end lease, repair and deduct the cost from future rent, reduce or withhold rent until a court decides fair rental value (while placing rent into escrow), or remain in possession while paying regular rent and seeking money damages.
71
Landlord Tenant EA
Nature of Lease
SoF
Type of Tenancy
(Assignment/Sublease)
Tenant Duties and Landlord Remedies
Landlord Duties and Tenant Remedies
72
Types of Tenancy
Tenancy for Years (fixed duration)
Periodic Tenancy (continues for successive intervals)
Tenancy at Will (no fixed duration)
Tenancy at Sufferance (T stays beyond termination, L accepts rent)
73
Periodic Tenancy
This is a lease that continues for successive intervals until one party gives notice of the termination.
Implied Creation: 1) No provision re: duration is mentioned but rent is due at set intervals; 2) Tenancy for years fails due to SOF; 3) Tenancy for years ends and implied periodic tenancy (holdover tenancy) is created unless L gives notice of change of terms or increase of rent before tenancy ends.
Commercial leases create year-to-year tenancy
Express Creation: month-to-month
Termination: written notice required for at least one period of the term, if term one year then 6 months.
74
Tenancy at Will
A tenancy with no fixed duration that lasts as long as the parties desire. Either party can terminate the tenancy at any time, but a reasonable demand to vacate is required.
75
Tenancy at Sufferance
A tenant stays past the expiry of the lease, L accepts rent. Ends when L evicts or elects to hold the T to a new lease.
76
Landlord Duties
Duty to deliver the premises
Implied Covenant of Quiet Enjoyment
Implied Warranty of Habitability
77
Constructive Eviction
When L substantially interferes with the quiet enjoyment of the premises by acting or failing to act, is notified by the T of the interference, does nothing to cure, and T vacates the premises within a reasonable amount of time.
78
Tort Liability of Landlord
Landlord is under no duty to make the premises safe except for common areas, hidden defects that L knows or should know about, L volunteers to repair, public spaces, and short-term furnished space.
79
Assignments & Subleases (intro)
Unless the lease expressly says otherwise, a tenant may freely transfer their interest in all (assign) or part (sublease) of the lease. Though they may require written approval, once approved, L cannot deny future ones.
80
Assignment Rule
When the T transfers the entire remainder of the lease, its an assignment. The L and new T are in privity of estate and not contract unless the new T expressly assumes al of the original K terms. The L and original T are in privity of K and not of estate and are secondarily liable to each other.
81
Non-Assignment Clause (of lease)
Absent waiver by the L, T may not assign the lease. Waiver exists when the L accepts rent from the assignee, knowing the person is the assignee.
82
Subleasing Rule
Subleases occur when any part less than the whole remainder of the lease is transferred by the T. The subleasee and L are not in privity of K or Estate. The original T and L are in privity of K, the new T is liable to the original T.
83
Easement EA
Definition
Type
- Appurtenant/In Gross
Creation of Easement
Termination of Easement
84
Methods to create an easement
Express
Implication
Necessity
Prescription
Estoppel
85
Easement by Implication
Prior existing use. Arises from operation of law, does not have to be in writing. There must have been apparent or continuous use of the easement when the severance occurred.
86
Easement by Necessity
No legal right of access to public road.
87
Easement by Prescription
Adverse Possession. Use or occupation of land without permission. Must demonstrate the use or occupation was HOAC + Exclusive
88
Easement by Estoppel
Irrevocable easements that require 1) license; 2) the licensee's expenditure of substantial money or good faith reliance on the continued use of the easement; 3) knowledge that reliance would occur.
89
Termination of Easement by Estoppel
Serviant owner materially changes position in reliance on the easement holder's assurance that easement will not be enforced
90
Termination of Easement by Necessity
Expire as soon as necessity ends unless it was created by express grant.
91
Termination of Easement by Destruction of Servant Land
Unintentional or faultless destruction will end the easement.
92
Termination of Easement by Abandonment
Easement holder must demonstrate by physical action the intent to never again use the easement.
93
Merger Doctrine re: easement
The easement is extinguished when title to the easement and title to the servant land become vested in the same person
94
Termination of joint Tenancy by Sale
A JT may sell or transfer their interest during their lifetime without the knowledge of other JT. The buyer becomes TIC.
95
Doctrine of Equitable Conversion
Under the Doctrine of Equitable Conversion, entering into a sale agreement severs the JT even if the sale hasn't gone through
96
Termination of Joint Tenancy by Mortgage
The execution of a mortgage or lien on JT share severs the JT in states following the TITLE THEORY. LIEN THEORY states do not consider a mortgage to sever the JT
97
Real Covenants (Intro)
A real covenant is a written promise concerning the use of real property. Real Covenants are either affirmative or negative. Every real covenant has two sides: the burden side and the benefit side. The burden refers to the duty to perform and the benefit refers to the privilege of forcing another party to perform. Remedies for breach of covenant are monetary damages.
98
Real Covenants: Requirements for the Burden to Run
In order for the burden of the covenant to run with the land, there must be: 1) CIA notice (constructive inquiry actual); 2) intent; 3) touch and concern; 4) vertical privity; 5) horizontal privity.
99
Real Covenants: Requirements for the Benefit to Run
In order for the benefit of a covenant to run there must be 1) intent; 2) touch and concern; 3) vertical privity.
100
Equitable Servitudes (intro)
If a P sues for injunctive relief or specific performance, they must show that the covenant qualifies as an equitable servitude. An equitable servitude is a covenant that, regardless of whether it runs with the land, will be enforced through equity against assignees of the burdened land who have notice. An equitable servitude must be in writing, unless it is a negative equitable servitude.
101
Negative Equitable Servitude
Servitude that is implied by a common plan or scheme from the development of a residential subdivision, so long as landowners have notice (CIA) of the agreement.
Common Plan or Scheme: evidenced by a recorded plat, general plat, restrictions or an oral representation to early buyers
102
Equitable Servitudes: Requirement for the Burden to Run
In order for the burden of an equitable servitude to run with the land, the elements of intent, notice, and touch and concern must be met.
103
Equitable Servitude: Notice Requirement
The successors of burdened land must have had notice (AIR) of the promise.
104
Equitable Servitude: Touch and Concern
The covenant must affect the legal relationship of the parties as landowners and not merely as members of the community at large.
105
Equitable Servitude: Requirement for the Benefit to Run
In order for the benefit to run, the elements of intent, and touch and concern must be met.
106
Remedies for Breach of Equitable Servitude
Only equitable remedies
107
Defenses to breach of Equitable Servitude
Changed Circumstances in the Neighborhood
Unclean Hands
Acquiescence
Estoppel
108
Termination of Equitable Servitude, Easement, or Real Covenant
ESTOPPEL
NECESSITY
DESTRUCTION
ABANDONMENT
Written RELEASE from the benefit holder,
MERGER of the benefitted and burdened estates,
CONDEMNATION by the burdened party.
PRESCRIPTION: COAH
109
Notice Recording Statutes
A conveyance of an interest in land shall not be valid against any subsequent purchaser for value, without notice thereof, unless the conveyance was recorded. AIR Notice
110
Race Notice Recording Statute
No conveyance or mortgage of an interest in land is valid against any subsequent purchaser whose conveyance is first recorded.
111
Pure Race Notice Recording Statute
If a subsequent purchaser recorded first, even if the subsequent purchaser is not a BFP then they will prevail over an earlier purchaser.
112
Race Notice Recording Statute
Any conveyance of an interest in land shall not be valid against any subsequent purchaser for value without notice thereof whose conveyance is first recorded.
113
Shelter Rule
A purchaser who takes from a BFP will prevail against any entity that the BFP would have prevailed against.
114
Wild Deeds
A wild deed is a deed that is unconnected to the chain of title, and thus incapable of giving record notice.
115
Estoppel by Deed
A grantor of a deed is estopped from denying the validity of the deed.
116
Mortgage
A mortgage is the conveyance of a security interest in land intended by the parties to be collateral. A LEGAL MORTGAGE is a note, deed of trust or security interest in land that must be in writing. An EQUITABLE MORTGAGE occurs when the mortgagee receives the deed instead of a note.
117
Public Nuisance
An unreasonable interference with a right common to the general public. It does not need to effect every member of the community before being deemed a nuisance.
118
Private Nuisance
An unreasonable, unwarranted, or unlawful condition that substantially interfere with another's use and enjoyment of land without actual trespass or physical invasion.
119
Variance
ZONING: Pursuant to its police powers, the government may enact statutes to reasonably control land use.
VARIANCE: a variance will be considered based on undue hardship from the restriction and whether or not a decrease in neighboring property will result.
120
Tenancy in Common Rights (Essay analysis)
Possession
Adverse Possession
Rent from Co-tenant
Rend from 3rd Parties
Carrying Costs
Repairs
Improvements
Waste
Partition
121
Doctrine of Waste
A Life Tenant is allowed all of the ordinary uses and profits from the land, but is not allowed to commit waste. Waste is anything that can hurt the interests of someone who has a future interest in the land (those future interest holders can sue for damages/injunction for acts of waste). There are three types of waste: Voluntary/Affirmative Waste, Permissive Waste (neglect), and Ameliorative Waste.
122
Voluntary/Affirmative Waste
a) Voluntary/Affirmative Waste occurs when the Life Tenant voluntarily does something that causes a drop in value.
b) Voluntary Waste and Natural Resources: Life Tenant cannot consume or exploit natural resources (i.e., oil/timber).
123
Voluntary/Affirmative Waste Exceptions
i) Exceptions:
(A) For reasonable repairs or maintenance;
(B) When expressly granted the right to do so;
(C) If the land is suitable only for exploitation; or
(D) Prior to this Life Tenant, the land was used for exploitation.
Open Mines Doctrine: If mining was done on the land prior to the Life Estate, the Life Tenant can continue to
124
Permissive Waste
a) Permissive Waste occurs when the Life Tenant allows the land to fall into despair.
b) Obligation to Repair: Life Tenant must simply maintain the premises in reasonably good repair.
c) Taxes: Life Tenant must pay all ordinary taxes on the land to the extent of the income or profits from the land (However, if there is none, then the Life Tenant must pay all ordinary taxes to extent of fair rental price for the premises).
125
Ameliorative Waste
Ameliorative Waste occurs when the Life Tenant conducts acts that enhance the property’s value without getting the consent of all known future interest holders.
126
Ways an Easement is created
Express
Implication
Necessity
Prescription
Estoppel
127
Real Covenants - Essay analysis
Burden
Notice (3 types)
Itnent
Touch and Concern
Vertical privity
horizontal privity
Benefit
Intent
Touch and Concern
Vertical privity
Remedy - Damages
128
Ways to terminate Easements, RC, and E Servitutdes
Estoppel
Necessity
Destruction
Condemnation
Release
Abandonment
Merger
Prescription
129
Equitable Servitudes - Essay Analysis
General Rule:
- Must be in writing
- SUB Issue: Negative Equitable servitudes
Burden
Intent
Notice
Touch and Concern
Benefit
Intent
Touch and Concern
Remedy:
Injunction or Specific Performance
Defenses:
Latches
Changed Circumstances
Unclean Hands
Acquiescence
Estoppel
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Negative Equitable Servitude - Essay anaylsis
Discuss what is a common plan or scheme
Go into intent
Defenses
Termination
Then probably done!
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Water Rights / Riparian Doctrine
a. The Riparian Doctrine: The Riparian Doctrine states that water belongs to those who own the land bordering the watercourse.
1) Owners share the right to reasonable use of the water and can be liable to another if s/he unreasonably interferes with another person’s use.
b. The Prior Appropriation Doctrine: The Prior Appropriation Doctrine states water belongs to the state, but people can acquire the right to divert water.
1) Determining Rights: Based on priority of beneficial use (e.g., farming). Usually “first in time, first in right” will apply.
2. GROUNDWATER/PERCOLATING WATER: Water beneath the surface of the earth that is not confined to a known channel. Surface owners can make reasonable, but not wasteful, use of the water.
3. SURFACE WATERS: Water coming from rain, springs, or melting snow, and which have not yet reached a natural watercourse or basin.
a. The Common Enemy Rule: A Landowner is allowed to change drainage, or make changes to his land to combat the flow of surface water. Note: Some jurisdictions require these changes not cause unnecessary harm to another person’s land.
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Lateral Support Rules
1. EXCAVAOR LIABILITY: If land is improved by building, and the land caves in due to an adjacent landowner’s excavation, the excavator will be liable only if negligent.
1
Note: Strict liability will not attach to the excavator’s actions, unless the plaintiff proves that his improved land would have collapsed even in its natural state because of the excavator’s actions.
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Acquiescence
The benefitted party will be deemed to have abandoned the servitude if they acquiesced to the violation by a burdened party.
