Real Property Flashcards

Question

Land Sale Contract Contract law Requirements Exception: Doctrine of Part Performance

Answer 1

Doctrine of Part Performance Equity will decree specific performance of an oral k for the sale of land if at least 2 of the following are performed: if the buyer takes possession; pays all or part of the purchase price, and/or makes substantial improvements. (value as a whole, how much paid thus far, how people are behaving- as a true owner might do)

Answer 2

promissory estoppel Promissory estoppel operates as a valid exception where a party reasonably and foreseeably relied on the land sale k to his detriment and would suffer hardship if the contract is not enforced.

Answer 3

During escrow (after land sale contract but before deed delivery), buyer has interest in the real property, but seller has interest in the personal property (the right to proceeds of the sale). The seller holds legal trust for buyer. If the property is destroyed before closing through no fault of the parties, buyer bears the risk of loss. The parties may contract differently. The seller must credit any insurance proceeds from loss against the purchase price. Some states have statutes that provide opposite results or risk of loss can be contracted for.

Answer 4

Party Dies The contract will proceed if a party in the transaction dies.

Answer 5

Promise of Marketable Title *usually tested as encumbrances In every land sale k, the seller has a duty to convey marketable title to the buyer at closing. Marketable title is title that is free from reasonable doubt and from an unreasonable risk of litigation. Defects that render title unmarketable are: title acquired by adverse possession that has not yet been quieted; future interest holders that have no agreed to transfer; private encumbrances; violation of zoning ordinance; or significant physical defect. To provide marketable title, the seller must provide buyer with (1) proof of title, (2) title free on encumbrances*, (3) and valid legal title as of the date of closing. *title is encumbered when there is an undisclosed easement, covenant or mortgage or someone owns an option to purchase an easement etc, An easement that benefits the burdened estate, and is visible or known to the buyer does not render title unmarketable.

Answer 6

Defect If there is a defect in title rendering title unmarketable, it must be fixed or cured before closing. If seller cannot deliver marketable title then buyer can rescind the k without penalty or may waive the requirement.

Answer 7

Promise to Not Make Any False Statements of Material Facts Most jurisdictions impose a duty on the seller to disclose latent material defects or material lies or material defects to the buyer. Material defects substantially impact: value of the property; desirability of the property; or health and safety of the occupants. A defect may be disclaimed if clear and specific.

Answer 8

Caveat Emptor Buyer beware. You can buy whatever you want. A General Disclaimer of liability ‘AS IS” will not excuse efforts of concealment or fraud. Exception: Builder/Vendor Generally, a conveyance of real property contains no warranties of quality or fitness for the purpose intended, but there is a recognized exception for the sale of a new house by the builder. There is an implied warranty that the new house is designed and constructed in a reasonably "workmanlike" manner and suitable for human habitation. Thus, in this case, the buyer would appear to have no claim against the seller unless he was the builder, in which case she could claim that the house was not constructed in a reasonably "workmanlike" manner

Answer 9

The buyer must notify seller before closing and give reasonable time for seller to cure defects. If buyer fails to notify seller before closing, contract merges with the deed and seller is not liable. If seller fails to cure, buyer can: 1) Rescind 2) Seek Damages – a non-breaching party to a land sale contract may recover the difference between the contract price and the value of the property at the time of breach. 3) Demand Specific Performance (SP) – permanent injunction where court orders D to perform contract as promised- Usually preferred because real property is unique - Requirements for SP –(A) K is valid (b) K conditions imposed on the P is satisfied (c) Inadequate legal remedy (d) property unique (e) Mutuality of performance – both parties must be eligible to have their performance under K ordered by court (f) Injunction cannot be too difficult for court to enforce (g) No defenses such as laches/unclean hands, or any defenses to underlying K (4) File suit to quiet title

Answer 10

Merger Doctrine Covenants under the land sale contract are merged into the deed and cannot be enforced unless the covenant is also in the deed. Prior to closing any liability must be based on a provision in the land sale contract. After closing, any liability must be based on a deed warranty.

Answer 11

Lawfully Executed : in writing, contain words of conveyance, signed by grantor, identifying parties, describing the property

Answer 12

DEED- Transfer by deed Deed passes legal title to the buyer. It must be lawfully executed, delivered and accepted by the grantee.  Lawfully Executed : in writing, contain words of conveyance, signed by grantor, identifying parties, describing the property

Answer 13

 Delivered : present intent to be bound irrespective of whether or not the deed itself is delivered. It is permissible to use mail, or an agent. If there is a deed with an oral condition, the oral condition does not apply. Look at the control grantor continues to have, and that it is not just a life estate built in. Courts recognize that a valid and binding gift can be made where the grantor retains a life estate and possession of the gift, with a present remainder interest being conveyed to and vested in the grantee. Parol evidence allowed to prove intent: a. The following create a strong presumption of present intent to transfer: 1. Recording the deed 2. Grantor physically delivering deed to grantee

Answer 14

 Accepted by Grantee : The recipients' express rejection of the deed will defeat delivery. Once the conditions of escrow are met, title passes to the grantee.

Answer 15

Deed passes legal title to the buyer. There are 3 types of deeds: Quitclaim deed, General Warranty, & statutory warranty deed. Head note for deed we address

Answer 16

Quitclaim No covenants of title are included or implied. Releases whatever interest the grantor has. This provides the least amount of title protection.

Answer 17

Statutory Special Warranty Deed Some states enforce promises by statute. The two promises are made by the grantor only on behalf of himself(not any predecessor grantor). Promise 1) he has not conveyed estate to anyone other than grantee and 2) the estate is free from encumbrances made by the grantor.

Answer 18

General warranty Is the best deed a buyer can hope for. The grantor warrants title against all defects, even if the grantor did not cause the defects. It typically contains 6 covenants.

Answer 19

Breached if ever at the time of delivery. the SoL for breach starts to run at the time of delivery. Remedy of breach is damages. 1. Seisan 2. Right to Convey 3. Against Encumberances

Answer 20

Seisan - the grantor warrants that grantor owns the estate and no other person has a conflicting present or future possessory interest.

Answer 21

Right to convey - Warrants grantor has the right to convey, this means no temporary restraints, and is under no legal disability.(prevents conveyance)

Answer 22

Against encumbrances - warrants there are no visible or invisible encumbrances such as servitudes or mortgages, against the title or interest conveyed. . If mortgage will be satisfied by the closing of the contract then it does not effect the covenant against encumbrances. This also may be a breach of seisan or right to convey. Covenant considered breached even if buyer had notice of encumbrance.

Answer 23

Future Covenants - Not breached if ever until grantee is disturbed in possession (ouster). SoL runs upon breach. Must tell grader when sol begins to run. Remedy for breach is purchase price+interest. 1. Quiet Enjoyment 2. Warranty 3. Further Assurances

Answer 24

Quiet Enjoyment – Only if claim is about title to property, claim for nuisance would not apply. Grantee won't be disturbed in possession by 3rd party’s lawful claim of title.

Answer 25

Warranty – Grantor promises to defend against lawful claim of title. (future developments that extend into the grantee’s property boundary.) Furthermore, liability on the covenant of warranty or for further assurances does not arise unless the party claiming breach gives the covenanting party notice of the claim against the title she conveyed.

Answer 26

Further assurances – Grantor promises to do whatever is needed in the future to perfect title.

Answer 27

if a prior conveyance or interest is not recorded, a subsequent purchaser/mortgagee may be protected under a recording statute Recording acts apply to every instrument by which an interest in land can be created or modified or can be recorded, including conveyances, mortgages, life estates, restrictive covenants, easements, etc. 1. First in Time, First in Right 2. Recording Statutes 3. Bona fide Purchaser

Answer 28

First in Time, First in Right Under common law, if a grantor transfer the same piece of property to multiple grantees, the first grantee to receive the deed acquires rightful title. In the absence of a recording statute, the common law rule controls. However, every state has adopted a recording statute that modifies the common law rule. The concept of notice is crucial to apply these modified recording statutes.

Answer 29

Recording Statutes (mostly only relevant when subsequent purchasers involved) There are three types of recording statutes that have been adopted by states to resolve competing claims to title. They are: Race statutes; notice statutes; race-notice statutes.

Answer 30

Race statutes .(look for “Records first”) The first purchaser for value to record acquires title, regardless of notice. Good faith not req

Answer 31

Notice Statutes ( look for “good faith” or “for value”) A subsequent BFP acquires title if the purchase is made without notice of the prior conveyance.

Answer 32

Race-Notice statues ( look for a combination of “record first” and “for value”) A subsequent BFP acquires title if: the purchase is made without notice of the prior unrecorded conveyance; AND the subsequent purchaser records first.

Answer 33

Bonafide purchaser To be a bona fide purchaser one must purchase the property for value (substantial pecuniary consideration), and without notice. The three types of notice: Actual notice, constructive notice and inquiry notice.

Answer 34

Actual notice A subsequent purchaser has actual notice when he has personal knowledge of the prior interest.

Answer 35

Record notice A subsequent purchaser is on record notice when the prior interest is properly recorded. (valid recordation puts entire public on notice). Sub issue: Wild deed If a deed is not recorded properly, it is considered a wild deed. This does NOT put the subsequent purchasers on constructive notice.

Answer 36

Inquiry notice A subsequent purchaser has inquiry notice when a reasonable investigation would have revealed the existence of prior claims (eg someone clearly living on property in question). If another person is in possession then the buyer has inquiry notice regardless whether they investigated.

Answer 37

Shelter Rule One who takes from a BFP will “stand in the shoes” of BFP and prevail against any claim the BFP would have prevailed against, even if the transferee had actual notice of a prior conveyance Protects donees, heirs, or devisees of BFPs who do not qualify as BFPs and not receive protection under recording statutes (because they are not purchasers for value)

Answer 38

Estoppel by Deed – TRICKY TRICKSTER A grantor who conveys unowned property by warranty deed is estopped from subsequently acquiring the same land. -Title automatically passes to the benefit of grantee, who can accept or reject the transfer. –Prevents one from conveying land they do not presently own & later validly acquire (like through will) —Estoppel by deed does not apply to transfer by quitclaim deed.

Answer 39

1) tenancy for years 2) periodic Tenancy 3) tenancy at Will 4) tenancy at sufferance - holdover doctrine

Answer 40

A tenancy for years is a leasehold estate for a fixed, determined period of time; ends automatically at termination date and notice is not required. If the term is greater than 1 year then the agreement must be in writing to satisfy the statute of Frauds.

Answer 41

An agreement for interest in real property must be in writing and signed by the person to be charged in order to be enforceable.

Answer 42

Periodic Tenancy *holdover tenant creates implied periodic tenancy A periodic tenancy is a repetitive and ongoing interest that continues until it is terminated by proper notice from either party. The periodic tendency is measured by the payment of rent in specific intervals. The parties must intend to create this interest by: express agreement, implication, or operation of law.(“week to week” “month to month”, ”year to year”)

Answer 43

Express Specified terms of the lease agreement or agreement. Implied Land is leased with no mention of duration, payments are made in successive intervals. Or an oral agreement in the term of years that violates SOF.

Answer 44

Holdover A periodic tenancy can arise by implication if the landlord elects to holdover a tenant who has wrongfully stayed past the conclusion of the lease. This tenancy is measured by the way rent is tendered.

Answer 45

Proper Notice- Termination Written notice is required to terminate a periodic tenancy since it is automatically renewed in the absence of notice of termination. At common law, notice must be in accordance with the length of the time period of the lease, except if the lease exceeds 6 months (180 days), only 6 months notice is required. Can agree to lengthen or shorten notice time so long as reasonable.

Answer 46

Tenancy at Will A tenancy at will is a lease for no fixed period of duration and terminable at will of either landlord or tenant; and requires express agreement that the lease may be terminated at any time. There must be a reasonable demand and time to vacate. -Regular payments of rent will cause a court to treat it as an implied periodic tenancy.

Answer 47

Tenancy at Sufferance – Holdover doctrine A tenancy at sufferance is created when the tenant has wrongfully held over past the expiration of the lease. The landlord has the election to either move to lawfully evict the tenant or decides to hold the tenant to a new periodic tenancy. *apply periodic tenancy if tenant makes payments The landlord must not engage in self-help to remove the tenant.

Answer 48

Tenant Duties Tenant has a duty to maintain the premises and pay rent. 1) Liability to 3p 2) Duty to repair where lease is silent i) Fixtures/improvements ii)Trade fixture iii) Waste 3) Duty to Pay Rent i) T breaches but still in Possession ii) T breaches but NOT in Possession

Answer 49

Liabilities to Third Parties Tenant is liable for injuries sustained by third parties, that tenant invites even where the landlord promised to make repairs.

Answer 50

Tenant must maintain the premises and make ordinary repairs. Tenant must not commit waste.

Answer 51

Fixtures/Improvements A fixture is a once removable chattel that by virtue of its annexation to realty, objectively shows the intent to improve realty, unless an agreement is made otherwise. Fixtures pass with the ownership of land. When Tenant removes a fixture tenant commits voluntary waste. However, Tenant may remove chattel as long as removal doesn’t cause substantial harm to premises or is a trade fixture.

Answer 52

Trade Fixture Chattel affixed to the property by commercial tenant for use in business. There is a strong presumption that trade fixtures are removable. Tenant is responsible for repairing any damage resulting from its removal.

Answer 53

Waste The tenant must not commit waste. Affirmative or voluntary waste is actual or overt destruction. Permissive waste or neglect is a failure to protect or preserve land. Ameliorative waste is a change that economically benefits property but w/out consent of land owner & future interests.

Answer 54

Duty to Pay Rent Tenant breaches the duty to pay rent but is still in Possession The landlord can proceed against the wrongdoer through lawful eviction proceedings or the landlord can continue the relationship and sue for rent owed. If the landlord moves to evict, they are still entitled to rent from the wrongdoer, now a tenant at sufferance, until the tenant vacates. Landlord must NOT engage in self-help.(no changing locks or moving possessions)

Answer 55

Breach of covenant With the exception of the covenant to pay rent, covenants in a lease are independent of one another. If one party breaches a covenant, the other party can recover damages but still must perform.

Answer 56

Tenant breaches the duty to pay rent but is NOT in Possession The landlord has three remedies if the tenant is no longer in possession of the premises with time still left on the lease. S Surrender- Landlord can treat the abandonment as surrender, which is when tenant shows by words or conduct that they want to give up the lease. If lasting greater than 1 year must be in writing. I Ignore the abandonment and hold the tenant liable. Minority of states allows the landlord to do nothing & let damages accrue. R Re-let the premises on the wrongdoers behalf, holding wrongdoer liable for any deficiencies. LL reas. goodfaith attempt to re-let.

Answer 57

1. Duty to deliver possession 2. Implied Covenant of Quiet Enjoyment i. Actual Eviction ii. Partial Eviction iii. Constructive Eviction 3. Implied Warranty of Habitability 4. Retaliatory Eviction 5. Landlord Tort liability - Caveat

Answer 58

Duty to Deliver Possession - English Rule – majority The landlord must provide the new tenant with legal possession of the lease (lease, keys etc) and actual physical possession of the premises. *if at the start of the new tenants lease, a prior holdover is still in possession than landlord is in breach and the new tenant gets damages* American Rule - minority The landlord need only provide the new tenant with legal possession of the lease.

Answer 59

Implied Covenant of Quiet Enjoyment Applies to both residential and commercial leases. Tenant has a right to use and enjoy the premises. The landlord implicitly promises to provide the tenant with implied use of the premises. Landlord must not permit a nuisance on site and the landlord must control common areas. LL is not responsible for actions of other tenants.

Answer 60

Actual Eviction Landlord breaches the implied convent if they exclude the tenant from entire premises and tenant does not have to pay rent.

Answer 61

Partial Eviction Landlord breaches by excluding the tenant from part of the leased premises and tenant does not have to pay rent.

Answer 62

Constructive Eviction Landlord breaches the implied covenant by causing the premises to be uninhabitable. The tenant may either: vacate within a reasonable time; or tenant can terminate lease and sue for damages. There must be substantial interference due to landlords action or failure to act; tenant must notify landlord of the problem and landlord must fail to act meaningfully; tenant must vacate within a reasonable time after landlord fails to fix the problem. **i.e. tenant lives above landlord and the landlord loved stinky cheese, it was so stinky it breached the tenants quiet enjoyment. ***heating is out and it is the summer in the desert. ****Hot water heater was scalding hot so tenants couldn’t use water without it cooling. ****Landlord cuts open wall with mold and does shoddy job, mold spreads through the unit and breaches Quiet enjoyment of tenant by impacting their health.

Answer 63

Implied Warranty of Habitability **no heat in winter, no plumbing, no running water** Applies only in residential domain and is not waivable. The premises must be fit for basic human habitation. The standards may be applied by local housing codes or case law. It is not waivable. Tenant needs to make a lawful notification to housing authorities. Landlord cannot retaliate in the subsequent 90 days. If breached, tenant may: - vacate and terminate lease; - make reasonable repairs and deduct costs; - may reduce or withhold rent(must place in escrow to show good faith); - may remain in possession, pay rent and seek damages.

Answer 64

Retaliatory Eviction Tenant may not be evicted, have a periodic lease terminated, or have a tenancy for years not renewed because tenant has asserted that property not habitable and made a lawful notification to local authorities.

Answer 65

Landlord Tort Liability - Caveat LL under no duty to make the premises safe. Exceptions to Common Law: - Landlord must maintain common areas; - Landlord must warn tenant of all latent defects(hidden) that LL should have known about or actually knew about; - Assumption of repairs(LL voluntary makes repairs must be in a reasonable workmanlike manner); - Duty to keep spaces open to the public safe(think of short term rentals like 1 night party space); - Short term lease of a furnished property LL is liable for any defect that hurts the tenant.

Answer 66

An interest in a lease is transferable unless the parties expressly agree otherwise. Prohibitions against assignment and/or subleasing are enforceable.

Answer 67

Assignment: a transfer in tenant’s entire interest- all rights and obligations- remaining on lease term. - New tenant personally liable to landlord for rent because there is privity. - Old tenant is also liable to landlord for rent, unless landlord specifically releases old tenant by novation.

Answer 68

Consequences of Assignment: The assignee stands in the shoes of the original tenant in a direct relationship with the landlord. Thus, Obligor and assignee are in privity of estate and each is liable to the other on all lease covenants that run with the land.

Answer 69

Original Tenant remains liable: although original tenant is no longer in privity of estate after the assignment, they remain in privity of contract (unless there is a novation).

Answer 70

Covenants that Run with the Land: A covenant runs with the land if the original parties to the lease so intend, and if the covenant touches and concerns the leased land. To touch and concern the leased land, the agreement must burden one part while benefiting the other, respecting their interests in the property. Covenants regarding the duration of the lease run with the land. (agreement for an additional 5 year lease upon written request is binding).

Answer 71

Sublease: the transfer of anything less than tenant’s entire interest remaining on lease term. - New tenant not personally liable to landlord for rent because sublease does not provide privity between new tenant and landlord. - Old tenant liable to landlord for rent because there is privity.

Answer 72

Heaven and Hell Doctrine The land owner has the right to everything on the surface, below the surface and above the land.

Answer 73

Adverse Possession Possession for a statutorily prescribed period of time, can, if certain elements are met, ripen into title. The possessor must show an actual entry giving exclusive possession that is open and notorious, adverse(hostile) and continuous throughout the statutory period.

Answer 74

Actual and Exclusive The adverse possessor must actually enter and take exclusive possession of the property; that is used in the same manner as that a reasonable owner would. This could be partial or complete possession of the parcel. Exclusive means the owner is excluded from the premises and the property is not open to the public. (putting up a fence, changing locks, physical occupation). Partial Possession: a reasonable percentage of the property must be actually used. The possessor can only claim possession of the property actually used.

Answer 75

Open and Notorious For possession to be open and notorious, claimant’s act must be Readily visible and conspicuous so that a reasonable owner who inspects the land will receive notice. Seasonal use allowed. If Possession starts with consent then the possessor does not become adverse until the possessor makes clear she is claiming hostilely.

Answer 76

Adverse/Hostile Occupying without the consent of the owner with the intent to remain against all others. Good faith mistake that the claimant has good title to the land does not negate the possession being adverse to the owner. Boundary Disputes: when a property owner occupies land thinking it;s his own mistakenly, possession can be deemed hostile.

Answer 77

Ouster of a co-tenant is required to find hostile possession with concurrent property owners since all co-tenants have equal rights to possession of property. When a co-tenant refuses to allow another co-tenant access to property, the ousted co-tenant may bring a court action against the possessor to regain possession with the possessor.

Answer 78

Continuous for the Statutory Period Possession must be continuous for the statutory period. At common law the statutory period is 20 years, in some states it is less, in California it is 5 years. *California requires Payment of the taxes, for other states payment of property taxes is good evidence of a claim of right * The continuous possession must be that of a reasonable owner, it depends on the nature and character of the land (seasonal). Seasonal use may still satisfy continuous possession if it is the way a typical owner of similar property would use the land.

Answer 79

Color of Title Adverse possessor entered pursuant to some written instrument that purported to convey him title to the land, but for some unknown reason and unknown to the claimant the instrument is defective and does not in fact convey anything. (napkins, text, any writing) **there is no written instrument here, therefore there is no title to discuss**

Answer 80

Tacking Must be more than 1 adverse possessor. The predecessor possessor has privity with the second possessor (renter, family).

Answer 81

Disabilities If disability is present at the time of the adverse possession then the possession will toll. Infancy, Imprisonment, insanity (institutionalized for mental health, or maybe dementia diagnosis- may not be able to assert their right as an owner, a degenerative cognitive issue. Addiction falls into the DSM5 and may be arguable as a disability of mental health).

Answer 82

Quiet Title Adverse possession does not convey marketable title. If elements are satisfied then X has the ability to “quiet title” in his name in order to make the property marketable.

Answer 83

EQUITABLE ESTOPPEL owner may be equitably estopped: an owner may not make a claim against a bona fide purchaser of property if the owner gave someone else title to, or the apparent authority to dispose of, the property. However, if the owner has not conveyed any indicia of ownership or apparent authority to the vendor, equitable estoppel is inappropriate. Vested ascertainable persons, not subject to a condition precedent.

Answer 84

Accession by Innocent Trespasser - Trespasser Cannot Recover Where a trespasser adds value to the original owners chattel, the original owner retains title and the trespasser cannot sue for compensation for the value of his labor or materials added.

Answer 85

Private property shall not be taken for public use without compensation. (1) A per se taking is a permanent physical invasion or depriving all economic value. (2) A regulatory action is a taking that does not meet the per se requirements, but the courts will consider (a) economic impact, (2) benefit of the community and (3) the extent of interference with expectations. Here, [plaintiff] will argue the value of their land has been taken away as there is no economic use of their land since they only wanted [facts]. The economic impact on [plaintiff] could be great if they cannot be productive with the land, the interference is substantial since the [fact] is the sole purpose of the land so they cannot do what they intended. However, government has a very important interest in protecting its growing infrastructure [facts] because it will benefit the public by supplying resources.

Answer 86

5th Amendment- Takings - eminent domain The power of the government to take private property for public purposes is known as eminent domain. The takings clause of the 5th amendment acts as a check on this power. It provides that private property may be taken; for public use; with just compensation.

Answer 87

Private property is owned by a private individual and may be taken by condemnation. Describe the property, & who it belongs to.

Answer 88

A taking is deemed for public use as long as there is a reasonable belief that it will benefit the public: health, safety, welfare, and economic gain.

Answer 89

Kelo The government may take private property not only for its own direct use, but also to transfer the property to another private party. To challenge this taking as not being made for public use, the challenger must prove that the transfer of property is NOT rationally related to any conceivable public purpose. (very difficult to prove)

Answer 90

Just Compensation Just compensation is measured by payment of fair market value- the reasonable value of the property at the time of the taking. The value is measured in terms of loss to the owner, not the benefit to the government.(relocation/moving costs not included).

Answer 91

Taking v Regulation Taking is the physical invasion of ones property and requires just compensation. A regulation is allowing the state to taking property for the public’s interest without compensation. Some regulations do not meet the requirements and constitute as a taking.

Answer 92

Physical Invasion Actual physical entry onto the property.

Answer 93

Regulatory Taking The tenth amendment allows states to regulate the use and development of land for protection of the health, safety, and general welfare of its citizens. A governmental regulation clearly results in a taking when the regulation results in a permanent physical occupation of the property per se taking(install cable box). Or when the regulation leaves no economically viable use of the property. Courts will determine whether a regulatory taking occurred by balancing private and community interest under the three Penn Central factors:

Answer 94

Penn Central factors: 1. The economic impact of the regulation on the claimant; 2. The extent to which the interference with the reasonable investment-backed expectations regarding the use of the property(owner’s primary expectation of use of the property) AND 3. The character of the regulation. The court has upheld land-use regulations that destroyed or adversely affected recognized real property interests in instances where the government reasonably concluded that the health, safety, morals, or general welfare would be promoted by prohibiting particular contemplated uses of the land. ( the degree to which it will benefit society, how the regulation distributes the burdens and benefits among property owners, whether the regulation violates any of the owner's essential attributes of property ownership, such as the right to exclude others from the property.)

Answer 95

Zoning Zoning regulations must be reasonable, not arbitrary and have a substantial relation to public health. Zoning ordinances may give rise to an equal protection clause if similarly situated people are treated differently.

Answer 96

Types of Zoning Ordinances 1) Cumulative 2) Noncumulative i) Variance ii) Nonconforming use

Answer 97

Cumulative Creates a hierarchy of uses of land; land zoned for a particular use may be used for the stated purpose or for any higher purpose (a house built in an industrial zone , but a factory cannot be built in a residential zone). NonCumulative

Answer 98

NonCumulative Land may only be used for the purpose it is zoned.

Answer 99

Variance A property owner may obtain a zoning variance(waiver) by administrative action if 1) ordinance imposes a hardship due to unique features of the property, and 2) the variance will not be contrary to public welfare(harm to neighboring areas).

Answer 100

Nonconforming Use Use of the property that was allowed under zoning regulations at the time the use was established but is no longer permitted under new zoning laws. Some statutes allowing nonconforming use to continue and some provide for termination but reasonable amortization provisions. Amortization provides a time frame for owners to comply with new zoning regulations. If a landowner is required to immediately discontinue use it is a “taking”. If amortization period is unreasonable it is a taking.

Answer 101

Improvements and Rebuilding Majority of jurisdictions find that any change or improvement must comply with new zoning regulation and that if structure is destroyed, the rebuilt building must comply with zoning regulations.

Answer 102

Exaction as a taking Conditions placed on the approval of permits do not constitute an uncompensated taking under the 5th amendment if: 1. An essential nexus between legitimate state interest and the conditions imposed on the property owner; AND 2. The government makes an individualized determination that the condition is roughly proportional( in nature and extent) to advancing that state interest.

Answer 103

Just Compensation, FMV, loss to owner, Injunction

Answer 104

Zoning ordinances may be enacted to regulate the location of adult theaters and bookstores. So long as the regulation is not to prevent the expression of speech but to prohibit secondary effects.

Answer 105

Obscenity: Miller Test Obscenity is unprotected speech. In order for material to be obscene, and thus unprotected, it must, on the whole, “appeal to the prurient interest in sex” (as judged by contemporary community standards); depict or describe sexual conduct(as specifically defined by state law) in a patently offensive way, and lack “serious literary, artistic, political, or scientific value”( using a national reasonable person standard).

Answer 106

Content-Based Regulations – Per Se Unconstitutional It is presumptively unconstitutional to place burdens on speech because of its content, except for certain categories of unprotected speech. Content-based regulations on protected speech are subject to strict scrutiny. Under the strict scrutiny standard, the government must prove that the regulation is necessary to meet that compelling government interest. (since statute concerns only those who have a particular purpose or message such as preventing begging, then it will be content-based.) compelling is essential or necessary. Substantial is more than legitimate. Here, [Discuss whether the government’s regulation of speech is content-based. Look at the language of the statute for this. It is presumptively unconstitutional and subject to strict scrutiny].

Answer 107

Easements License Profits

Answer 108

First establish that the easement is created. Then establish whether it is appurtenant or gross and whether it is affirmative or negative. Then address the scope and finally whether the easement was terminated. Usually, whether an easement has been terminated is by bona fide purchaser- occasionally by necessity, prescription or implication.

Answer 109

An easement is the grant of a nonpossessory interest that entitles its holder to some form of use or enjoyment of another's land called the servient tenement.

Answer 110

Creation An easement may be affirmative or negative. Affirmative/Negative (Only discuss ones that are present and break them into different headers)

Answer 111

A negative easement entitles holder to prevent the servient landowner from doing something that would otherwise be permissible. It may only be created expressly (in writing and signed by grantor). A negative easement may only be acquired for light, air, support, streamwater from an artificial flow. In a minority of states a scenic view is an additional negative easement. Here, the easement [entitles the holder to do something on another’s tract of land/ prevents a landowner from doing something on their own land] because [facts]. Thus, the easement is [affirmative/ negative].

Answer 112

A right to do something on the land is an affirmative easement. There are four types: P, I, N, G.

Answer 113

Affirmative (only analyze what is present) Prescription - An easement acquired by satisfying the elements of Adverse Possession, Actual entry that need not be exclusive, open and notorious, hostile use without the servient owner's consent. Implication Necessity Grant AKA Express

Answer 114

Affirmative (only analyze what is present) Prescription Implication - AKA easement implied from apparent previous use and the easement's continuation is reasonably necessary for the dominant’s use and enjoyment. Necessity Grant AKA Express

Answer 115

Affirmative (only analyze what is present) Prescription Implication Necessity - Traditionally obtained by a landlocked situation where there is no reasonable means of ingress or egress to the property. Conveyance of a part of the land with no way out. Grant AKA Express

Answer 116

Affirmative (only analyze what is present) Prescription Implication Necessity Grant AKA Express - An easement to endure more than one year must be in writing that comports to all the elements of a deed called “deed of easement.”

Answer 117

An easement may be appurtenant to the land or held in gross.

Answer 118

Appurtenant (relevant to) An easement is deemed appurtenant when it benefits the holder in his physical use and enjoyment of his property. This requires two parcels of land; a dominant tenement is a parcel of land which derives the benefits of the easement; a servient tenement suffers the burden of the easement. (identify - “parcel is the dominant tenement because ___”)

Answer 119

[Transferability: Easement appurtenant passes automatically with the dominant tenement regardless if it was mentioned in the conveyance. The burden of an easement appurtenant will pass with the servient land, unless the purchaser is a bona fide purchaser without notice of the easement. Notice may be actual, inquiry(constructive), or by record.]

Answer 120

Gross - $$$$ Confers upon its holder only a personal, or financial benefit, not linked to the easement holder’s use or enjoyment of their land. The servient land is burdened and there is no dominant tenement.(identify servient tenement).

Answer 121

[Transferability: Easements in gross are not assignable/transferable unless they are for commercial purposes. * right to place billboard on another’s lot, right to swim in another’s pond*]

Answer 122

Scope of Easement The scope is set by the terms or conditions that created it. There cannot be any unilateral expansion of an easement to benefit the dominant parcel. “The easement allows parcel A, the dominant tenement, to utilize 15 ft along the west border of parcel B, the servient tenement”. Address if the party exceeds the scope that was originally given.

Answer 123

Surcharge When an easement holder exceeds the scope of use, the easement is surcharged and a court may grant a servient estate holder an injunction to stop the excess use, which does not terminate the easement, and damages.

Answer 124

Duty to Repair If the easement holder is the only party making use of the easement, that party has the duty to make repairs, and absent an agreement otherwise, the owner of the servient estate has no duty to repair. If the easement is nonexclusive (i.e. both the owner of the servient and dominant estate may use it), both have a duty to repair and a court will apportion costs between them based on relative use.

Answer 125

Termination of Easements (put in even if no termination and state no termination) END CRAMP An easement may terminate by estoppel; necessity; involuntary destruction; condemnation; release; abandonment; merger doctrine; prescription.

Answer 126

Estoppel The servient owner materially changes his/her position on the reasonable reliance of the easement holders assurance that the easement will no longer be enforced. Dominant tenement is estopped from engaging in the easement. look for spending money.

Answer 127

Bona Fide Purchaser A purchaser for value who takes without notice of the easement doesn’t take on the burden of the easement. Notice may be actual, constructive, or by inquiry.

Answer 128

Necessity An easement created by necessity ends as soon as the necessity expires. However, if the easement attributable to necessity was nonetheless created by an express grant as well it will not end when the need ends. (if necessity is destroyed ie tunnel in mt collapses, then the necessity is created again and restart analysis at creation)

Answer 129

Involuntary Destruction Destruction of the servient land is an appropriate termination unless you fall into a category, other than through the willful conduct of the Servient owner. If a Servient owner destroys the land in some way to end the easement to negatively impact the dominant tenement. That is not an acceptable termination.

Answer 130

Condemnation Condemnation of a servient estate terminates the easement when the government exercises eminent domain.

Answer 131

Release A written release given by the easement holder to the servient holder will terminate the easement.

Answer 132

Abandonment The easement holder must demonstrate by physical action the intent to never use the easement again. *ie. dominant tenement holder blocks their own easement access like with a fence. If there is NO physical action, it is not sufficient to terminate the easement.

Answer 133

Merger Doctrine The easement is extinguished when title to the easement and title to the servient land become vested in the same owner. i.e.same owner buys own parcels of land. If land sold again, the new owner cannot reactivate the old easement because it terminated when the lands merged. They would have to create a new easement.

Answer 134

Prescription An easement may be terminated HOAC -Hostile - entry without owner’s permission - Open and Notorious - visible occupation of land to afford true owner notice and use as the owner would make. -Actual - actual use must be made in order to determine the scope of the prescriptive easement. -Continuous - uninterrupted for statutory period

Answer 135

License (always will be subsequent related issue to easement- is fall back to easement not properly created) A license does not convey possessory interest in land, it is a mere privilege to enter another’s land for some delineated purpose. Licenses are not subject to the SoF and thus are freely revocable unless estoppel applies to bar revocation. Estoppel only applies when the licensee has invested substantial money or labor in reasonable reliance on the licenses continuation. **Tickets create freely revocable licenses.

Answer 136

The SOF requires that any conveyance of an interest in land of duration longer than one year must be memorialized in writing to be enforceable. If a party attempts to create an easement orally, the result is the creation of a license (a revocable privilege). *** however, if an oral attempt to create an easement is subsequently “executed”, to the extent that it would be inequitable to permit its revocation (e.g., the licensee has expended substantial funds in reliance), the licensor may be estopped to revoke the license.]

Answer 137

Profit The Profit entitles the holder the right to enter servient land and take from it the soil or some natural resource. The profit shares all the rules of easements.

Answer 138

Encumbrances – Usually issue cluster with marketable title or breach of warranty. Generally, mortgages, liens, easements, and covenants render title unmarketable unless the buyer waives them.

Answer 139

Covenant - (when plaintiff seeks money damages - apply covenant) A covenant starts off as a promise regarding the use of land that runs to successors of the promise. It typically requires the holder to either do something OR refrain from doing something to the land. *When the plaintiff wants money damages to be made whole, construe the promise at law as a covenant. 1) Burden to Run 2) Benefit to Run

Answer 140

Burden to Run - WITHN The burden of the covenant is being subject to or bound by it. For the burden of the covenant to run with the land at law: the original promise had to be in writing; the original parties intended that the burden would run; the promise affects the parties as land owners and not citizens at large; horizontal and vertical privity are both needed for the burden to succeed in running from A to A1.

Answer 141

Writing The promise must be included in the writing in the original covenant. (usually in the deed). It must satisfy the statute of frauds. If it doesn’t, look for exceptions such as detrimental reliance, equitable estoppel. Intent Touch & Concern of the land Vertical Privity Horizontal Privity Notice

Answer 142

Writing Intent > The parties must intend the rights and duties run with the land. Look for language such as “his successors, and heirs,” or the fact that they wrote it onto the deed. Why did they intend to do it, what actions or verbage did they use? Touch & Concern of the land Vertical Privity Horizontal Privity Notice

Answer 143

Writing Intent Touch & Concern of the land >The promise needs to relate to the parties legal relationship as landowners. Vertical Privity Horizontal Privity Notice

Answer 144

Writing Intent Touch & Concern of the land Vertical Privity > Established with a non-hostile nexus between the original landholder and the successor. Cannot be satisfied by adverse possession (hostile). The successor must take the original landholder’s entire interest (i.e. not a life estate) Horizontal Privity Notice

Answer 145

Writing Intent Touch & Concern of the land Vertical Privity Horizontal Privity >The original parties to the covenant must have had a conveyance(be in privity)of the estate, i.e. landlord tenant, grantor/grantee or happen to be each other’s debtor/creditor in the land transaction. Notice

Answer 146

Writing Intent Touch & Concern of the land Vertical Privity Horizontal Privity Notice >The subsequent purchaser must have notice of the covenant or they are not bound in equity. (Actual, Constructive- recorded in chain of title, Inquiry)

Answer 147

Benefit to Run – WITV - NO HORIZONTAL PRIVITY NEEDED to RUN. Does the benefit of A’s promise to B run from B to B1? The benefit of the covenant is the ability to enforce it. The original promise must be in writing; the original parties intended that the benefit would run; the promise affects the parties as landowners/ it pertains to their rights and duties as landowners; vertical privity as a non-hostile nexus between B and B1.

Answer 148

Writing Discuss the writing and parties. Intent Touch & Concern of the land Vertical Privity

Answer 149

Writing Intent > Why did they intend to do it, what actions or verbage did they use? Touch & Concern of the land Vertical Privity

Answer 150

Writing Intent Touch & Concern of the land >The promise needs to relate to the parties legal relationship as landowners. Vertical Privity

Answer 151

Writing Intent Touch & Concern of the land Vertical Privity >Established with a non-hostile nexus between the original landholder and the successor. Cannot be satisfied by adverse possession (hostile). The successor need only take some interest in the estate (could be a life estate).

Answer 152

Equitable Servitude (injunction to enforce burden) – WITTNES An equitable servitude is a promise regarding land that equity will enforce against successors; it is accompanied by injunctive relief. To creating a binding ES: the original promise must be in writing; the parties intended the promise will bind successors; the promise affects the parties as landowners; the successors of the burdened land had notice of the promise when they took. Most courts view this as an equitable property interest, thus Privity is NOT required to bind successors.

Answer 153

Writing Discuss the writing and parties. Intent Why did they intend to do it, what actions or verbage did they use? Touch & Concern of the land The promise needs to relate to the parties legal relationship as landowners. Notice The successors of the burdened land had notice of the promise. (Actual, Inquiry(neighborhood conforms to the common restriction), record).

Answer 154

Implied ES - General or Common Scheme Doctrine Always arises in the context of a subdivision. If a covenant in a subdivision deed is silent as to who holds its benefit, any neighbor in the subdivision will be entitled to enforce if the covenant is found to have existed at the time he purchased the lot and there was an original intent to create a servitude on all the plots. Writing not req’d. The servitude must be negative.

Answer 155

Notice To be bound by the terms of the equitable servitude defendant must have had actual or inquiry notice. The majority of states do not obligate the lot holder to know the history of deeds for the properties surrounding the lot. Inquiry notice, the neighborhood appears to conform to common restrictions. Actual notice is direct notice of the covenants in prior deeds.

Answer 156

Equitable defense - Pervasive Change use The change in the use of the community is so pervasive & not just mere pockets of change that the restrictions should be lifted.

Answer 157

Generally tested with Joint tenancies and whether an execution of the mortgage severs the joint tenancy. It can be tested as buyer taking out a new mortgage on newly purchased property. A mortgage is a security interest given by the mortgagor/borrower to the morgagee/lender whereby a loan is made and if it is not paid in full, the sheriff may sell the land at a court-ordered foreclosure sale. The land is used as collateral for the repayment of debt.

Answer 158

Mortgage Components A mortgage consists of a promissory note which is a personal promise from the borrower to repay the loan making them personally liable if they default and deficiency judgment is sought, and the mortgage itself which secures the note to the property as collateral.

Answer 159

Equitable Mortgage – Aka Deed of Trust Debtor give creditor a deed to his land as collateral for the debt(instead of executing a mortgage). If the loan is not paid in full, the trustee can either obtain a court order for a foreclosure sale on the property or sell the property for themselves at public option.

Answer 160

Acceleration clauses terms in loan agreements that require mortgagor to pay off full loan immediately if certain conditions are met (e.g., if mortgagor misses too many payments)

Answer 161

Mortgagor transfer where mortgagor sells property, mortgage remains on land (i.e., grantee takes “subject to” the mortgage) Mortgagor remains liable to mortgagee for the loan.

Answer 162

Assumption grantee promises to pay existing mortgage loan. Grantee becomes primarily liable to mortgagee; original party is secondarily liable as surety

Answer 163

A mortgagee (creditor) can transfer her interest by 1) Endorsing the mortgage note and delivering it to transferee 2) Executing a separate assignment of the mortgage interest

Answer 164

Holder in due course a holder in due course lender takes a mortgage note free of any personal defenses mortgagor could have raised against original mortgagee (e.g., lack of consideration, fraudulent inducement). He still remains subject to real defenses (e.g., duress, fraud, etc.)

Answer 165

Requirements for holder in due course status 1) Negotiable note – must be made payable to the named mortgagee 2) Indorsed – note must be signed by the named mortgagee 3) Delivered – note must be delivered to the transferee, and 4) Good faith and value paid – transferee must take the note in good faith (i.e., without notice of illegality) and pay value

Answer 166

upon default by mortgagor, mortgagee can satisfy debt through foreclosure by judicial action. Property is sold to satisfy the debt in whole or in part

Answer 167

Deficiency judgment if the debt exceeds sale proceeds, mortgagee can file suit against mortgagor for debt balance only if: There was a judicial foreclosure; Loan was not a Purchase Money Mortgage. (Mortgage taken out for the original purchase of the property).

Answer 168

Excess if proceeds exceed the debt balance, junior liens are paid in order of priority and then remaining to the buyer

Answer 169

Priority of creditors after land sold, proceeds are used to satisfy debt secured by property. Creditors must record their interests, and recorded interests take priority in the order recorded. Any debts secured by property are paid in chronological order (senior mortgages superior to junior mortgages)

Answer 170

Purchase money mortgages (PMM) – superior to all interests PMM is given either to the seller as part of the purchase price or to a third-party lender (if both, seller’s PMM is senior to the third-party lender). Creditors can agree to subordinate priority to a junior creditor. PMM may not also get deficiency judgment against debtor.

Answer 171

Junior interests terminated by foreclosure of a superior claim. I.e., upon foreclosure, junior interest holders cannot look to the land to satisfy debts. Junior interests can seek a deficiency judgment against debtor, but they have no interest in the subject property Necessary parties – junior interests are necessary parties and must be included in a senior foreclosure action. Otherwise, the junior interest will remain on the land

Answer 172

Senior interests unaffected by junior interest foreclosures. Buyer of foreclosed property takes it subject to senior interests. Buyer is not liable for senior debt, but the senior mortgage remains on the land (so they can get that interest!)

Answer 173

Order of payment 1) Fees for attorneys/trustees 2) PMM or secured senior interests 3) Secured junior interests (foreclosure of senior interests will destroy all junior interests) 4) Unsecured interests

Answer 174

> Redemption in equity at any time prior to the foreclosure sale, mortgagor can redeem the property by paying the amount that’s due >Statutory right of redemption some jurisdictions allow mortgagor, for a certain period, to buy back the property after foreclosure sale

Answer 175

Deed in lieu of foreclosure to avoid foreclosure, mortgagor can agree to give mortgagee deed to property. Such transactions will be valid as long as they are fair and reasonable under the circumstances

Answer 176

Mortgagee possession mortgagee’s right to possession prior to foreclosure depends on the jurisdiction Lien theory(MBE’s) – no right to possess prior to foreclosure Title theory – right to possess at any time upon demand Mortgagee can always take possession with mortgagor’s consent or abandonment Mortgagee in possession assumes the risk of: Accounting for rents, Managing property, and Tort liability