Real Property Flashcards

Question

Enforcing Express Covenant

Answer 1

enforce the covenant by specific performance or injunction P must show: * intent * notice (for burden to run) * touch and concern

Answer 2

Waste is an act by someone in rightful possession of property that does permanent injury to the land, harming the interest of someone entitled to future possession. * VOLUNTARY = deliberate destructive acts * PERMISSIVE = acts of omission or neglect * AMELIORATIVE = acts that alter the property but result in an increase in value (e.g., turning a warehouse into a store, razing dilapidated buildings and constructing a new high-rise, or installing new plumbing)

Answer 3

right to use land for a particular purpose, but no right to possession or enjoy that land. (1) METHOD OF **CREATION** *EXPRESS* * direct grant of the easement, preferably with a deed *BY IMPLICATION* * if there was a prior use over a period of time amounting to consent. * must be apparent and continuous at the time the tract is divided (so it only has to exist at the time the parcel is divided, not before), and it must be reasonably necessary to the enjoyment of the dominant parcel, considering factors such as cost and difficulty of the alternatives, and whether the price paid reflects continued use of the easement. *BY NECESSITY* * Where the two parcels were under common ownership at one time AND no prior use (no use prior to the necessity arising) AND the party asserting the easement owns landlocked property with no access to a public road *BY PRESCRIPTION* * easement created by adverse possession, except requirement of exclusive possession (2) **TYPE** *APPURTENANT* (geographic) * where the holder of one parcel—the dominant tenement—holds and is benefited by the easement burdening a different parcel over which it runs—the servient tenement. * automatically transfers with the transfer of the dominant estate. *IN GROSS* * holder is not the owner of another parcel, but just has rights of access irrespective of their ownership of nearby or adjacent property * does not transfer between successive owners of the easement unless it is for commercial purposes. Both an easement appurtenant and in gross automatically run with the transfer of the servient estate, unless the servient estate is transferred to a bona fide purchaser without notice (including actual, constructive, or inquiry notice). Easements are terminated either in writing, or orally plus an action of abandonment. However, the owner of the servient estate cannot unilaterally terminate an easement for overuse—she can only seek an injunction against the overuse. ## Footnote If there's an express easement, no need to discuss the rest of the 3 If there's no express easment, then discuss the 3 (implication, necessity, and prescription)

Answer 4

right to take specific things, such as timber, from the land.

Answer 5

The failure of an express easement because it is oral (not in writing) may result in a license. A license is generally revocable at will, but a license is irrevocable only if the licensee invests substantial amounts of money or labor in reliance on the license—in that case, the owner is estopped to revoke the license, which becomes the equivalent of an easement.

Answer 6

For the Burden of Covenant to run against burdened owner who must perform the covenant: (ALL present) * Writing * An intent * Notice – Actual, Constructive, or Inquiry * Horizontal Privity * Vertical Privity * Touch and Concern the land For the Benefit of Covenant to run in favor of benefited owner (other than an owner who originally covenanted): * Writing * Intent * Vertical Privity * Touch and Concern the land ## Footnote * binding promises regarding the use of the land

Answer 7

For burden to run, servitude must be in writing, and only need to show that the burdened party has: * Notice * Intent * Touch and Concern the land For benefit to run, servitude must be in writing, and only need to show that the benefited party has: * Intent * Touch and Concern

Answer 8

To be a valid conveynace, a deed must be: 1. Executed 2. Delivered (by recordation or delivery to grantee or grantee’s agent) 3. Accepted ## Footnote deed must contain words of intent, such as “grant” or “convey,” it must adequately describe the property, by address, or metes and bounds, or tract and parcel number, or something similar, and any oral conditions are generally not enforced. However, in a small minority of states, an oral condition, other than the grantor’s death, will be enforced. A deed does not require consideration to be valid

Answer 9

conveys only what the seller has, but does not affect the implied warranty of marketable title in a real estate contract

Answer 10

Marketable title is title reasonably free from doubt—title that a reasonably prudent buyer would be willing to accept. Marketable title need only be delivered at closing, not before. Title is not marketable if there is an undisclosed encumbrance or a condition that gives rise to a threat of litigation. ## Footnote Examples include zoning violations, but not zoning restrictions and generally not building code violations. title by adverse possession is NOT marketable title

Answer 11

Present Covenants (breached at time of conveyance) (1) Seisin (title and possession) (2) Right to convey (3) Against encumbrances (other than those recorded prior and appearing on the preliminary title report) Future Covenants (breach at the time of the claim against the title, if any) (1) Quiet Enjoyment (grantee will not be disturbed in possession by a lawful claim of title) (2) Warranty (grantor agrees to defend grantee’s title and compensate the grantee for loss as a result of an undisclosed superior title) (3) Further Assurances (to perform whatever further acts are necessary to perfect title in the grantee) | contains 6 covenants

Answer 12

**Whoever records first wins** no requirement that prevailing party be a bona fide purchaser

Answer 13

a** subsequent BFP** (a person who** gives adequate consideration**) who has **no actual, constructive [record], or inquiry notice** of the prior instrument **prevails over a prior grantee who failed to record** ## Footnote a BFP has no actual, constructive [record], or inquiry notice of the prior instrument, so statutes that refer to a BFP are at a minimum notice statutes.

Answer 14

a **subsequent BFP who has no notice who also records before the prior grantee prevails** over a prior grantee who failed to record. ## Footnote So in a race-notice jurisdiction, a subsequent grantee who has notice cannot prevail just by recording first. Subsequent purchasers who take property, but have actual or inquiry notice, take subject to the prior unrecorded interest under both the notice and race-notice statutes.

Answer 15

* It is the conveyance of a security interest in land, intended by the parties to be collateral. Debtor = Mortgagor, Creditor = Mortgagee * It’s a debt and a voluntary lien in debtor’s land to secure the debt * Typically has to be in writing to satisfy the Statute of Frauds * A purchase money mortgage takes priority over an unrecorded prior lien, including an unsecured vendor’s lien, which is created when the seller takes back a promissory note as part of the purchase price. *FORECLOSURE* When a mortgage is recorded, and later foreclosed, the mortgagee gets the title that existed as of the date of recording. But, pursuant to operation of the recording statutes, in a notice or race-notice jurisdiction, if the mortgagee has actual, constructive, or inquiry notice of a prior, unrecorded interest, they are not protected, and when they foreclose, they will take title subject to the prior unrecorded interest.

Answer 16

A deed of trust (D/T) is like a mortgage. A D/T is also a security interest in property and can be recorded.

Answer 17

* Trustee posts and records a Notice of Default and Election to Sell * Trustor then has 90 days to bring the defaulted amount current * After 90 days the Trustee may post and publish a Notice of Trustee’s Sale * For 21 days the beneficiary can demand payment in full on the note * At the end of 21 days the trustee can sell the note to the highest bidder at public auction (often in goes to the lender who bids the note)

Answer 18

* Occurs when the amount owed on the note secured by the mortgage or D/T is greater than the current value of the property securing the debt. * A mortgagee or beneficiary under a D/T can obtain a deficiency judgment for money against the borrower only if the property securing the mortgage or D/T is not a single family home or up to a 4 single family residence and the mortgage or beneficiary uses judicial foreclosure * Non-judicial foreclosure of a D/T carries an antideficiency provision that prohibits the awarding of a deficiency judgment

Answer 19

A landowner is strictly liable if his excavation causes adjacent land in its natural state to subside, but he is only strictly liable if his excavation causes adjacent land with improvements to subside if the land would have subsided in its natural state. Otherwise, the landowner is only liable if his excavation was done negligently.

Answer 20

If a grantor conveys the right to have minerals taken from beneath the surface or the right to tunnel subsurface, and the land or existing buildings collapses, the grantee is strictly liable. But, if subsequently built buildings collapse, the grantee is only liable if they were negligent in their tunneling or mining

Answer 21

* Under the riparian doctrine, the water belongs not to the public or the government, but to those who own the land bordering on the watercourse. * All riparian owners may take water for all reasonable uses that do not unreasonably interfere with the uses of the other riparian owners

Answer 22

Under the prior appropriation doctrine, the water belongs to the state, but the right to divert and use it can be acquired by an individual whether or not he is a riparian owner. Initially, these rights are determined by priority of beneficial use (priority in time—water is allocated to the first person to take water for a beneficial use); if there is a decrease in water flow and availability, the junior in time appropriators suffer first and lose their rights.

Answer 23

Rule of reasonable use: an owner may make reasonable use of his or her land, even though this alters the flow of diffused water in a manner that harms others. Owner can either impound or, if reasonable, repel and divert water ## Footnote All surface water not confined in lakes, rivers, streams or other confined watercourses is diffused surface water—whether from snow melt, flooding, springs, other sources, if it gathers om temporary ponds or puddles.

Answer 24

Two types: * Underground streams: water flowing in a defined channel underground * Percolating groundwater: percolates up through permeable subsurface layers Four types of rules: * Reasonable use approach—water may be used only on the overlying land; for uses reasonably related to the natural use of the land; * Modified reasonable use—reasonableness based on balancing equities and hardships among all users; * Correlative rights—all owners of land over a common pool have equal extraction rights; and * Permit system based on prior appropriation.

Real Property Flashcards

(48 cards)