Real Property [Highly Tested Rules] Flashcards
1
Q
What is adverse possession?
A
Adverse possession allows someone in continuous possession of real property owned by another to acquire title to the property, if certain requirements are met
* Title by adverse possession results from the operation of the statute of limitations for ejectment (a civil action to recover the possession of real property wrongfully dispossessed); if the owner does not take legal action to eject the adverse possessor within the statute of limitations, the owner is thereafter barred from bringing suit for ejectment
NOTE: Title to government-owned land and land registered under a Torrens system cannot be acquired by adverse possession
2
Q
What is required to establish title by adverse possession?
A
To establish title by adverse possession, the possessor must show (1) actual and exclusive possession that is (2) open and notorious, (3) hostile, and (4) continuous for the duration of the statutory period for an ejectment action
3
Q
What is “actual” possession for purposes of establishing title by adverse possession?
A
As a general rule, the adverse possessor will gain title only to the land she actually occupies because the true owner must have notice of the extent of the adverse possessor’s claim
* Actual possession of a portion of a unitary tract of land is sufficient to acquire title to the entire tract as long as there is (1) a reasonable proportion between the portion actually possessed and the entirety of the tract and (2) the possessor has color of title to the entire tract (i.e., a document purports to give the possessor title, but for reasons not apparent from its face does not)
4
Q
What is “exclusive” possession for purposes of establishing title by adverse possession?
A
“Exclusive” possession means that the adverse possessor is not sharing possession with the true owner or the public at large
5
Q
What is “open and notorious” possession for purposes of establishing title by adverse possession?
A
Possession is “open and notorious” when it is the kind of use the usual owner would make of the land
* The adverse possessor’s occupation must be sufficiently apparent to put the true owner on notice that a trespass is occurring
6
Q
What is “hostile” possession for purposes of establishing title by adverse possession?
A
The adverse possessor’s occuption of the property is hostile if the possessor does not have the true owner’s permission to be on the property
* If the possessor enters with permission of the true owner, the possession does not become adverse until the possessor communicates hostility to the true owner by (1) explicit notification, (2) refusing to permit the true owner to enter the land or (3) other acts inconsistent with the original permission
* Possession or use by one co-tenant is not hostile unless the co-tenant ousts the others or makes an explicit declaration that he is claiming exclusive dominion over the property
7
Q
What is “continuous” possession for purposes of establishing title by adverse possession?
A
The adverse claimant’s possession must be continuous throughout the statutory period for bringing an ejectment action, which requires only the degree of occupancy and use that the average owner would make of the property (e.g., possession of a summer house only requires continuous use every summer)
* Ordinarily, an adverse possessor can take advantage of the periods of adverse possession by her predecessor by “tacking” their periods of adverse possession together
8
Q
What are the requirements of an enforceable real estate contract?
A
A real estate contract generally must comply with the Statute of Frauds to be enforceable, which requires the contract to:
1. be in writing;
2. be signed by the party to be bound;
3. identify the parties;
4. sufficiently describe the property; and
5. include the price or a means of determining the price
EXCEPTION:
A buyer can seek to enforce an oral real estate contract by specific performance if the terms of the agreement are sufficiently definite and certain, and the buyer can prove at least TWO of the following three actions:
1. the buyer has taken possession of the property
2. the buyer has paid the purchase price or a significant portion of the purchase price
3. the buyer has made substantial improvements to the property
9
Q
What is the warranty of marketable title?
A
Every real estate contract contains an implied covenant that the seller will provide marketable title at closing, which means title reasonably free from doubt and the threat of litigation (e.g., defects in chain of title, encumbrances, zoning violations)
10
Q
What are common defects that render title unmarketable?
A
- Defects in record chain of title (most often when title is acquired by adverse possession)
- Mortgages, liens, easements, restrictive covenants, significant encroachments and options to purchase
- Existing zoning violations (but NOT mere zoning restrictions)
- Future interests held by unborn or unascertained persons
11
Q
What are a buyer’s remedies if title is unmarketable?
A
The buyer must notify the seller that title is unmarketable and give the seller reasonable time to cure the defects, but if the seller fails to cure the defects, the buyer’s remedies include:
1. Rescission
2. Damages (difference between fair market value and contract price plus incidental damages)
3. Specific performance with abatement of the purchase price
4. Quiet title action
12
Q
What is a deed?
A
A deed is a document that passes legal title to property from the grantor to the grantee when it is:
1. Lawfully executed;
2. Delivered; and
3. Accepted
13
Q
What are the requirements of a valid deed?
A
To be valid, a deed must:
1. be in a writing that is signed by the grantor;
2. identify the grantor AND grantee (if the deed is delivered with the identity of the grantee left blank, a court will presume that the person taking delivery has authority to fill in the name of the grantee (and if she does, the deed is valid)
3. unambiguously describe the property conveyed (a description is sufficient if it provides a “good lead” as to the identity of the property)
4. include words evidencing an intent to transfer the property (e.g., “grant”)
NOTE: Consideration is NOT required
14
Q
When is a deed properly delivered?
A
A deed is not effective to transfer an interest in real property unless it has been delivered, which is satisfied by words or conduct evidencing the grantor’s intent that the deed have present operative effect (i.e, that title pass immediately and irrevocably, even though the right of possession may be posted until some future time)
* Physical transfer of a deed is NOT necessary for a valid delivery
* Parol evidence is admissible to prove the grantor’s intent, but it is NOT admissible to show that delivery was subject to a condition
* A strong presumption of the grantor’s intent to deliver the deed is created when (1) the deed is recorded or (2) the grantor physically delivers the deed to the grantee
* A deed is constructively delivered when the grantor gives the deed to a third party who is an agent of the grantee
15
Q
If a deed is absolute on its face but is delivered to the grantee with an oral condition, what is the result?
A
- Traditional View: The condition is NOT enforced and the delivery becomes absolute
- Growing Minority View: The condition is ENFORCEABLE
16
Q
If a deed contains an express provision that title will not pass until the grantor’s death, what is the result?
A
The deed creates a present posessory life estate in the grantor, and a future interest (an executory interest) in the grantee
17
Q
If the grantor delivers an executed deed to a third party, with instructions that the deed be delivered to the grantee once certain conditions are met, what is the result?
A
- If the third party (escrow agent) is given written instructions, a valid conditional delivery has occurred
- If the escrow agent is given oral instructions, the grantor may change the instructions and recover the deed prior to satisfaction of the conditions UNLESS there is a written contract to convey
18
Q
When is a deed properly accepted?
A
In most states, acceptance is presumed if the conveyance is beneficial to the grantee (whether or not the grantee knows of it)
* If a grantee expressly rejects the deed, delivery is defeated and the deed is ineffective to pass title
19
Q
What are the present covenants for title?
A
- The covenant of seisin (the grantor has the interest she purports to convey)
- The covenant of the right to convey (the grantor has the power and authority to make the grant)
- The covenant against encumbrances (there are neither visible nor invisible encumbrances against the title or interest conveyed)
20
Q
When are present covenants for title breached (if at all)?
A
Present covenants for title are breached, if ever, at the time the deed is delivered
21
Q
What are the future covenants for title?
A
- The covenant for quiet enjoyment (the grantor promises that the grantee will not be disturbed in possession by a third party’s lawful claim of title)
- The covenant of warranty (the grantor promises to defend against reasonable claims of title by a third party, and to compensate the grantee for any loss sustained by the claim of superior title)
- The covenant for further assurances (the grantor promises to do whatever is needed to perfect grantee’s title if it later turns out to be imperfect)
22
Q
When are future covenants for title breached (if ever)?
A
Future covenants for title are breached, if ever, when the grantee is disturbed in possession
23
Q
What is estoppel by deed?
A
If a grantor purports to convey an interest in property that she does NOT own at the time of conveyance, her subsequent acquisition of title to the property will automatically inure to the benefit of the grantee
24
Q
What is a joint tenancy?
A
A joint tenancy is a concurrent estate owned by two or more joint tenants with equal shares and the right of survivorship
25
What is required to create a joint tenancy?
| "T-TIPS"
A joint tenancy requires the **four unities** and an **express right of survivorship**
1. **Time:** Interests created at the same time
2. **Title:** Interests taken by the same title
3. **Interests:** Identical, equal interests
4. **Possession:** Same right to possession of the whole estate
5. **Survivorship:** Conveyance must clearly express the right of survivorship
26
How can a joint tenancy by severed?
A joint tenancy will be severed (terminated) under the following circumstances:
1. **Inter Vivos Conveyance by One Tenant:** An inter vivos conveyance by one joint tenant of her undivided interest destroys the joint tenancy (even secret conveyances), and the ***transferee takes the interest as a tenant in common***
> ***Two Joint Tenants:*** Both the remaining tenant and transferee hold the property as tenants in common
> ***Three or More Joint Tenants:*** The transferee takes the interest as a tenant in common, but the ***remaining joint tenants continue to have a joint tenancy with each other***
2. **Contract to Convey by One Tenant:** In most states, a severance also results where one joint tenant executes a valid contract to convey her interest to another because it is treated as an effective transfer of an equitable interest
3. **Partition:** By voluntary agreement or judicial action (if in the best interest of all parties), the property may be physically divided or ordered sold and the proceeds distributed
4. **Mortgage ("Title Theory" States):** In the minority of states that regard a mortgage as a transfer of title, a joint tenant's execution of a mortgage on her interest destroys the unity of title and severs the joint tenancy
5. **Lease (Traditional View):** Under the traditional common law view, a joint tenancy is severed when one joint tenant leases her interest (although there is a split in authority)
**NOTE:** A testamentary disposition of a joint tenancy interest in a will does NOT sever the joint tenancy because, at death, the testator's interest vanishes due to the right of survivorship
27
What is a tenancy in common?
A tenancy in common is a concurrent estate owned by two or more persons with **no right of survivorship**
1. Each co-tenant has an equal right to possession of the entire property
2. Equal shares are presumed but NOT required
3. Tenant in common interests are alienable, descendible and devisable
**NOTE:** A conveyance to two or more persons, without more, is **presumed** to create a tenancy in common
28
What is a tenancy by the entirety?
A tenancy by the entirety is a **marital estate akin to a joint tenancy between spouses**
1. Not recognized in community property states
2. Neither tenant can unilaterally convey their share, encumber the entire property or break the right of survivorship
3. May only be severed by divorce, death, mutual agreement, or execution by a joint creditor of BOTH spouses (a creditor of one spouse cannot execute)
> On divorce, the tenancy by the entirety becomes a tenancy in common
29
What are the rights and obligations of co-tenants with respect to possession?
Each co-tenant has the right to possess all portions of the property, but no co-tenant has the right to exclusively possess any part of the property
* An **ouster** is committed when one co-tenant wrongfully excludes another co-tenant from possession of the entirety or any part of the property
* An ousted co-tenant may bring an **ejectment** action to **regain possession** and recover **damages** equal to the ***fair rental value*** of the property for the ***duration of the period*** during which they were ***wrongfully deprived of possession***
30
What are the rights and obligations of co-tenants with respect to rents and profits?
A **co-tenant in possession does NOT need to share profits** obtained from **her use of the property** with co-tenants out of possession, **nor reimburse** them for the **rental value of her use** (absent an ouster or agreement to the contrary) **BUT** must share (1) **rents from *third parties*** and (2) **profits** derived from a **use of the land that *reduces its value*** (e.g., mining, timber)
* Additionally, an **ousted co-tenant** is entitled to receive his **share** of the ***fair rental value*** of the property for the **time he was wrongfully deprived of possession**
31
What are the rights and obligations of co-tenants with respect to repairs and improvements?
A co-tenant can seek **contribution** from the other co-tenants of their **proportionate share** of expenses for **reasonable, necessary repairs** (provided they were ***given notice of the need for the repairs***)
* A co-tenant has **NO right to contribution** for ***improvements*** made by one co-tenant
32
What are the rights and obligations of co-tenants with respect to carrying costs?
Co-tenants are **responsible for their proportionate share of carrying costs**, such as ***mortgage payments, taxes and assessments***
33
What are the rights and obligations of co-tenants with respect to waste?
Co-tenants **must not commit waste**, and a co-tenant may bring an action for waste against another co-tenant
* **Affirmative (Voluntary)** waste is ***actual, overt conduct*** that ***causes a drop in the value*** of the property
* **Permissive** waste occurs when a tenant ***fails to comply with their duties*** to ***preserve the land and structures in a reasonable state of repair*** or to ***reasonably protect*** the land
* **Ameliorative** waste occurs when a tenant makes a ***unilateral change*** that ***increases the value of the property***
34
What are the rights and obligations of co-tenants with respect to encumbrances?
A co-tenant **may encumber his own share** of the property with a loan or judgment, but **may NOT encumber the share of his co-tenant(s)**
35
What is a tenancy for years?
A tenancy for years (or "term of years") is a lease for a **fixed, determined period of time**
**NOTE:** A lease for a ***term greater than one year must be in writing*** to be enforceable under the Statute of Frauds
36
How is a tenancy for years terminated?
A tenancy for years terminates **automatically** at its ***termination date***
* In most leases, the landlord reserves a right of entry, which allows them to terminate the lease if the tenant breaches any of the lease's covenants
* A tenancy for years may also terminate if the tenant surrenders the tenancy and the landlord accepts
37
What is a periodic tenancy?
A periodic tenancy is a lease that **continues for successive intervals** (e.g., month to month) **until** either the landlord or tenant gives **proper notice of termination**
38
How is a periodic tenancy created?
A periodic tenancy can be created:
1. **expressly** by agreement; or
2. by **implication** when:
(i) ***no duration is specified***, but ***rent is paid at set intervals***,
(iii) a ***lease violates the Statute of Frauds*** (creates implied periodic tenancy, measured by the way rent is tendered), or
(iii) a ***landlord elects to hold over a tenant*** who has wrongfully remained in possession past the conclusion of a residential lease (creates implied periodic tenancy, measured by the way rent is tendered)
39
How is a periodic tenancy terminated?
**Notice of termination (*usually written*) must be given** because a periodic tenancy is automatically renewed absent proper notice of termination
* At common law, notice must be **at least equal to the length of the period** itself (but a ***year-to-year*** lease only requires ***six months' notice***)
* Usually, the notice also must be **timed to terminate** the lease **at the end of a period**
40
What is a tenancy at will?
A tenancy at will is a lease of no fixed period of duration and **terminable at the will of either party**
41
How is a tenancy at will created?
Generally, a tenancy at will must be created by an **express agreement that the lease can be terminated at any time**
* Otherwise, the payment of regular rent will cause a court to treat the tenancy as an implied periodic tenancy
42
How is a tenancy at will terminated?
In theory, a tenancy at will can be terminated by either party at any time, but most states require **notice** and a **reasonable time to quit** (i.e., vacate)
43
What is a tenancy at sufferance?
A tenancy at sufferance is **created when a tenant wrongfully holds over**, meaning they remain in possession past the expiration of the lease
* A tenancy at sufferance **lasts only until** the **landlord** elects to either:
(i) ***evict*** the tenant; or
(ii) ***hold the tenant to a*** ***new periodic tenancy*** (measured by the way rent was computed under the lease that ended)
* No notice of termination is required
44
Landlord & Tenant:
Dependence of Lease Covenants
**Common Law:** At common law, covenants in a lease were ***independent***--if one party breached a lease covenant, the ***nonbreaching party could recover damages*** for the breach ***but the lease endured***
**Modern View:** Under the modern view, many lease covenants are considered ***dependent*** such that the ***nonbreaching party can terminate the lease and/or seek damages*** upon breach of a covenant
45
What is a tenant's duty to repair when the lease is silent about the tenant's repair obligations?
When a lease is silent about a tenant's repair obligations, the tenant must **maintain the premises in reasonably good repair** but is **NOT** **reponsible for** **ordinary wear and tear**
* A tenant's duty to repair is linked to the doctrine of waste; a **tenant cannot commit waste** on the leased premises
* A tenant is liable to the landlord for **"voluntary"** **waste**, which results when the tenant ***intentionally or negligently damages*** the premises
* A tenant is liable to the landlord for **"permissive" waste**, which results when the tenant ***fails to maintain the premises in reasonably good repair***
* A tenant is ***not permitted to make substantial alterations*** to leased premises, even if the alteration increases the value of the property (i.e., **"ameliorative" waste**), and is ***liable to the landlord for the cost of restoration***
> **Modern Exception:** Permits the tenant to make a change if it:
(i) ***increases the value*** of the premises;
(ii) is ***performed by a long-term tenant*** (e.g., 25 years); and
(iii) ***reflects a change*** in the nature and character of the neighborhood
46
What is a tenant's duty to repair when they have expressly covenanted in the lease to maintain the property in good condition?
* If a **residential** tenant covenants to repair, the ***landlord usually remains obligated to repair*** (except for damages caused by the tenant) under the non-waivable implied warranty of habitability
* A **commercial** tenant's covenant to repair is **enforceable**, and a ***landlord may be awarded damages for breach*** based on the property's condition when the lease terminates compared with its condition when the lease commenced
47
What are a landlord's remedies when a tenant breaches his duty to pay rent and remains in possession of the leased premises?
When a tenant is in possession of the leased premises and fails to pay rent, the landlord can either:
1. initiate proceedings to ***evict the tenant*** under the applicable state's ***unlawful detainer*** statute; or
2. ***allow the tenant to remain*** on the premises and ***sue for unpaid rent due***
48
What is an abandonment of a leasehold?
When the tenant **unjustifiably vacates** the premises **without the intent to return prior to the expiration of the lease**, the tenant has **abandoned** the leasehold
49
What are a landlord's remedies when a tenant breaches his duty to pay rent and has abandoned the leased premises?
When a **tenant fails to pay rent and has abandoned** the premises, the landlord can:
1. treat the tenant's abandonment as an ***implicit offer of*** ***surrender*** and ***accept*** the surrender, thereby ending the lease;
2. ***ignore*** the abandonment and ***hold the tenant responsible for the rent due for the remaining term*** of the lease (only available in a **MINORITY** of states); or
3. ***re-let the premises*** on the tenant's behalf, and ***hold the tenant liable for any deficiency*** (i.e., **mitigate damages**)
50
What is the implied covenant of quiet enjoyment?
Every residential and commercial lease includes an ***implied covenant of quiet enjoyment***, which provides that a ***tenant has a right to quiet use and enjoyment*** of the leased premises, ***without interference from the landlord or a paramount title holder*** (e.g., a mortgagee who forecloses)
51
When does a landlord breach the implied covenant of quiet enjoyment?
The implied covenant of quiet enjoyment is breached when a tenant is (1) **actually evicted**, (2) **partially evicted**, or (3) **constructively evicted**
52
What is constructive eviction?
Constructive eviction occurs when a **landlord's breach of duty renders the leased premises unsuitable for occupancy**
53
What is required to establish a claim for constructive eviction?
To establish a claim for constructive eviction, the tenant must prove:
1. the ***landlord***, or persons acting for him, ***breached a duty to the tenant***;
2. the breach ***substantially and materially deprived*** the tenant of her ***use and enjoyment*** of the premises;
3. the tenant gave the landlord ***notice and a reasonable time to repair***; and
4. after such reasonable time, the ***tenant vacated the premises***
54
What remedies are available to a tenant who has been constructively evicted?
A tenant who has been constructively evicted may (1) **terminate the lease**, thereby relieving the tenant of her duty to pay rent from the date she vacated the premises, and (2) seek **damages**
55
What is the implied warranty of habitability?
The **implied warranty of habitability** is a covenant implied in **residential** leases, which provides that the leased **premises must be fit for human habitation**
* Applies to ***residential leases only***; NOT commercial leases
* This warranty is ***nonwaivable***
56
What are the tenant's options when a landlord breaches the implied warranty of habitability?
1. ***Terminate the lease and move out***;
2. ***Make reasonable repairs*** and ***deduct the cost*** from future rent;
3. ***Pay reduced rent*** or ***withhold rent*** until a court determines fair rental value; or
4. ***Remain*** in possession, ***pay full rent***, and affirmatively ***seek damages***
57
Are lease covenants restricting assignments and subleases enforceable?
Lease covenants restricting assignments and subleases are **enforceable** but ***strictly construed*** against the landlord
* A valid covenant against assignment is considered ***waived*** if the ***landlord was aware*** of the assignment ***but did not object***
* Once a landlord ***consents to one transfer*** by a tenant, the landlord ***waives the right to object to future transfers*** by the tenant ***UNLESS the landlord expressly reserves the right***
58
When does a lease covenant "run with the land"?
A **covenant "runs with the land"** if the ***original*** contracting parties so ***intended***, and if the covenant **"touches and concerns" the land** (i.e, it benefits and burdens the parties with respect to their interests in the property)
59
When does a landlord have a duty to repair or make safe the leased premises?
At **common law**, a landlord had ***no duty to make leased premises safe***
**EXCEPTIONS:**
1. **Common Areas:** A landlord has a ***duty of reasonable care*** in maintaining all common areas
2. **Latent Defects:** A landlord must ***warn*** a tenant of ***hidden defects*** (dangerous conditions that the tenant could not discover by reasonable inspection) of which the ***landlord has knowledge or reason to know***
3. **Assumption of Repairs:** If the landlord undertakes repairs, he ***must complete them with reasonable care***
4. **Public Use Rule:** A landlord who leases ***public space***, and who should know, because of the significant nature of the defect and short length of the lease, that a tenant will not repair it, is ***liable for any defect that causes injury to members of the public***
5. **Short-Term Lease of Furnished Dwelling:** A landlord who rents a ***fully furnished*** premises for a ***short period*** is ***STRICTLY LIABLE for any defective condition that proximately injures a tenant***
## Footnote
"**CLAPS**" -- **C**ommon Areas, **L**atent Defects, **A**ssumption of Repairs, **P**ublic Use, **S**hort-Term Lease
60
What is an easement?
An ***easement*** is a ***nonpossessory*** property interest that ***entitles its holder to use the land of another*** for a specified purpose
**EXAMPLES:**
* The right to lay utility lines on another's land
* The right of way over another's land
* The right to tap into a neighbor's drain
61
What is an affirmative easement?
An **affirmative easement** entitles the holder to ***do something on servient land*** (i.e., the land that is burdened by the easement)
62
What is a negative easement?
A **negative easement** entitles the holder to ***prevent the servient landowner from doing something*** that would otherwise be permissible on their land
Courts historically recognized negative easements only for:
1. ***Light***
2. ***Air***
3. ***Subjacent or lateral support***
4. ***Stream water from an artificial flow***
**NOTE:** A **minority** of states also allow a negative easement for ***scenic view***
63
What is an easement appurtenant?
An **easement appurtenant** involves ***two parcels of land*** and ***benefits the holder*** of the easement in the ***physical use or enjoyment of his own land***
* **Dominant Estate:** The parcel of land ***benefited by the easement***
* **Servient Estate:** The parcel of land that ***bears the burden*** of the easement (and provides the benefit to the dominant estate)
64
What is an easement in gross?
An **easement in gross** confers upon its holder only some ***personal or pecuniary advantage*** that is ***not related to their use or enjoyment of their land***
* Servient land is burdened by the easement, but there is ***no dominant estate*** deriving a benefit
**EXAMPLES:**
* The right to place a billboard on another's lot
* The right to swim in another's pond
* The utility company's right to lay power lines on another's lot
65
What are the ways of creating an easement?
An easement can be created by:
1. **P**rescription
2. **I**mplication
3. **N**ecessity
4. **G**rant
5. **E**xpress **R**eservation
## Footnote
"**PINGER**"
66
When is an easement by necessity created?
An easement by necessity will be implied when a **landowner conveys a portion of her land with no way out except over some part of the grantor's remaining land**
* The **owner** of the **servient estate** has the **right to locate the easement**, provided the location is ***reasonably convenient***
67
What is required to create an easement by grant?
Because an easement is an interest in land, the Statute of Fraud requires an easement to be memorialized in a **writing** that is **signed by the** ***grantor*** (the owner of the ***servient*** estate) **UNLESS** its duration is **less than one year**
An easement can be created by conveyance, but a **grant of an easement must comply with all the formal requirements of a deed**
* An easement is ***presumed to be of perpetual duration*** unless the grant specifically limits the interest (e.g., for 10 years, for life)
68
What is required to create an easement by express reservation?
An easement by express reservation arises when a **landowner conveys title but reserves the right to continue to use the tract for a special purpose** after the conveyance
**NOTE:** Under the **majority** view, the easement can be **reserved only for the grantor**; an attempt to reserve an easement for anyone else is void
69
What is required to create an easement by prescription?
Acquiring an easement by prescription is analogous to acquiring property by adverse possession
**REQUIREMENTS:** To acquire a prescriptive easement, there must be:
1. ***Continuous and uninterrupted use for the statutory period***;
2. ***Open and notorious*** use (must be discoverable upon inspection);
3. ***Actual*** use (unlike adverse possession, the ***use need not be exclusive***); and
4. ***Hostile*** (without the servient landowner's consent)
70
When is an easement implied by prior use?
An easement may be implied from preexisting use (a "quasi-easement") when:
1. the **dominant and servient estates** were **originally one parcel** of land with **common ownership**;
2. the land was **severed** into more than one parcel;
3. prior to the severance, a **use existed** on the ***servient* parcel** that is **reasonably necessary for the enjoyment** of the ***dominant* parcel**; and
4. a court determines that the **parties intended the use to continue after division** of the property
71
When is an easement implied when lots are sold in a subdivision?
When **lots are sold in a subdivision with reference to a recorded plat or map that also shows streets leading to the lots**, buyers of the lots have **implied easements to use the streets** in order to gain access to their lots
72
When is an easement appurtenant transferable?
An easement appurtenant ***passes automatically with transfers of the dominant estate***, regardless of whether it is mentioned in the conveyance
* The ***burden*** of the easement appurtenant also ***passes automatically*** with the ***servient estate***, **UNLESS** the ***new owner is a bona fide purchaser without notice of the easement***
73
When is an easement in gross transferable?
An easement in gross is **NOT transferable** **UNLESS** it is for ***commercial purposes***
74
What is the scope of an easement?
The **scope** of an easement is ***determined by the terms of the grant or conditions that created it***
* In the absence of specific limitations, courts assume that an easement was intended to meet both **present and future needs** of the ***dominant*** estate
75
What happens when the holder of an easement exceeds its legal scope?
When the owner of an easement uses it in a way that ***exceeds*** its legal scope, the easement is said to be ***surcharged***
* The ***excess use does not terminate the easement*** or give the servient landowner a power of termination, but the servient landowner can seek an ***injunction of the excess use***, and possibly damages if the servient estate is harmed
76
What are the ways an easement can be terminated?
An easement by terminated by:
1. **Estoppel**
2. **Necessity**
3. **Destruction**
4. **Condemnation**
5. **Release**
6. **Abandonment**
7. **Merger**
8. **Prescription**
9. **Stated Conditions**
| "**END CRAMPS**"
77
When does an easement terminate by estoppel?
When the servient owner materially changes their position in reasonable reliance on the easement holder's assurances that the easement will no longer be enforced, the easement terminates by estoppel
78
When does an easement by necessity terminate?
Easements by necessity end as soon as the necessity ends
79
When does an easement terminate by destruction?
Destruction of the servient estate (other than through the willful conduct of its owner) will terminate the easement
80
When does an easement terminate by condemnation?
Condemnation of the servient estate by eminent domain will terminate the easement (courts are split as to whether easement holders are entitled to compensation)
81
When does an easement terminate by release?
A release given by the easement holder to the servient land owner will terminate the easement, but it must be executed with all formalities required for a valid creation of an easement
82
When does an easement terminate by abandonment?
When an easement holder shows by **physical action** an **intent to never use the easement again**, it will terminate (mere ***nonuse or words are insufficient***)
83
When does an easement terminate by merger?
An easement is extinguished when **title to both the dominant and servient estates become vested in the same person**
84
When does an easement terminate by prescription?
An easement may be extinguished where the servient owner interferes with it in accordance with the principles of prescription (continuous interference, open and notorious, actual and hostile)
85
When does an easement terminate by stated conditions?
An easement will terminate in accordance with its stated conditions
86
What is a real covenant?
A real covenant is a written promise to do or not do something related to land
Real covenants can be ***negative*** or ***affirmative***:
* **Negative Covenants:** A negative covenant, also known as a ***restrictive covenant***, is a promise to ***refrain*** from doing something related to land
* **Affirmative Covenants:** An affirmative covenant is a promise to ***do something*** related to land
87
What is the remedy for breach of a real covenant?
A breach of a **real covenant** generally is remedied by an award of money ***damages***
* If ***equitable relief*** (e.g., an ***injunction***) is sought, the promise may be enforced as an **equitable servitude**
88
What are the requirements for the BURDEN of a real covenant to run with the land?
If the following requirements are met, any **successor in interest** to the **SERVIENT** estate will be **bound by the BURDEN of the covenant**:
1. **Writing:** The original promise must have been ***in writing***
2. **Intent:** The original covenanting parties must have ***intended*** that the covenant would run
3. **Touch and Concern:** The covenant ***must "touch and concern" the land***
4. **Horizontal Privity:** Refers to the ***nexus between the original covenanting parties*** and requires that the ***two shared some interest in the land independent of the covenant*** (e.g., grantor-grantee, landlord-tenant, mortgagor-mortgagee)
5. **Vertical Privity:** Requires that the ***successor in interest to the original covenanting party hold the*** ***entire durational interest*** held by the covenanting party at the time she made the covenant (vertical privity is ***absent*** when the ***successor acquired their interest through*** ***adverse possession***)
6. **Notice**: The **successor** must have had ***notice of the covenant*** at the time she took her interest (***actual***, ***inquiry*** or ***record*** notice)
## Footnote
"**WITCH V**a**N**" -- **W**riting, **I**ntent, **T**ouch & **C**oncern, **H**orizontal Privity, **V**ertical Privity, **N**otice
89
When does the burden of an affirmative covenant "touch and concern" the land?
The **burden** of an ***affirmative*** covenant touches and concerns the land if it ***requires*** the holder of the servient estate to ***do something that increases their obligations*** in connection with the land
90
When does the burden of a negative covenant "touch and concern" the land?
The **burden** of a ***negative*** covenant touches and concerns the land if it ***restricts*** the holder of the servient estate in ***their use of that parcel of land***
91
What are the requirements for the BENEFIT of a real covenant to run with the land?
If the following requirements are met, any **successor in interest** to the **DOMINANT** estate will be **able to enjoy the BENEFIT of the covenant**:
1. **Writing:** The original promise must have been ***in writing***
2. **Intent:** The original covenanting parties must have ***intended*** that the benefit would run
3. **Touch and Concern:** The covenant must ***"touch and concern"*** the land, meaning that the ***promised performance*** ***must BENEFIT*** the ***original covenanting party and her successors*** in their ***use and enjoyment of the benefited land***
4. **Vertical Privity:** The ***benefit*** of a covenant ***runs to the assignees of the original estate or of any lesser estate*** (e.g., a life estate)
| "**W**hat **I**s **T**he **C**ommon **V**alue"
92
How can a real covenant be terminated?
A real covenant can be terminated by:
1. **D**estruction
2. **R**elease
3. **E**stoppel
4. **A**bandonment
5. **M**erger
6. **C**ondemnation
7. **C**hanged **C**onditions (conditions have changed so significantly that the purpose of the covenant is impossible to achieve)
## Footnote
"**DREAM** **C**hocolate **C**hip **C**ookies"
93
What is an equitable servitude?
An equitable servitude is a **covenant** that, **regardless of whether it runs with the land** at law, **EQUITY will enforce against the successors of the burdened land** **UNLESS** the **successor is a** ***bona fide purchaser*** (i.e., a subsequent purchaser for value without notice of the covenant)
**NOTE:** If a plaintiff wants an ***injunction*** or ***specific performance***, they may show that the covenant qualifies as an equitable servitude
94
How are equitable servitudes created?
Generally, equitable servitudes are created by covenants contained in a ***writing*** that satisfies the Statute of Frauds
* **EXCEPTION:** Common scheme doctrine (implied reciprocal negative servitudes)
95
What is the common scheme doctrine?
When a developer subdivides land into several parcels and some of the deeds contain negative covenants while others do not, negative covenants or equitable servitudes binding all of the parcels in the subdivision may be implied under the "common scheme" doctrine (or doctrine of "reciprocal negative servitudes")
**NOTE:** This doctrine does **NOT** apply to ***affirmative covenants***
96
What is required to establish an equitable servitude under the common scheme doctrine?
The following requirements must be satisfied to establish an equitable servitude under the common scheme doctrine:
1. at the time that **sales of parcels in the subdivision began**, the developer had a **plan that all parcels in the subdivision be developed within the terms of the negative covenant** (may be evidenced by a **recorded plat**, a **general pattern** of prior restrictions or by **oral representations**); AND
2. the **owner of the parcel to be bound**, at the time he **acquired** his parcel, **had notice of the covenants contained in the deeds of other buyers** in the subdivision (**actual**, **inquiry** or **record** notice)
97
When does an equitable servitude bind successors?
Equitable servitudes will bind successors if:
1. **Writing:** the equitable servitude is in **writing** (unless the common scheme doctrine applies)
2. **Intent:** the original covenanting parties **intended** the servitude to **bind successors**
3. **Touch & Concern:** the servitude **touches and concerns** the land (***benefitting*** the **dominant** parcel's owner in her **use or enjoyment** of her property, or ***restricting*** the **servient** parcel's **use or enjoyment** of his property)
4. **Notice:** the **successor** of the ***servient* parcel** had **notice of the servitude when they acquired** the property (can be actual, inquiry or record notice)
**NOTE:** No horizontal or vertical privity is required
## Footnote
"**W**hen **I**njunction is **T**he **C**ertain **N**eed"
98
How can an equitable servitude be terminated?
An equitable servitude may be terminated by:
1. **D**estruction
2. **R**elease
3. **E**stoppel
4. **A**bandonment
5. **M**erger
6. **C**ondemnation
7. **C**hanged **C**onditions (conditions have changed so significantly that the purpose of the servitude is impossible to achieve)
| "**DREAM** **C**hocolate **C**hip **C**ookies"
99
What are equitable defenses to enforcement of an equitable servitude?
A court will **not enforce** an equitable servitude if:
1. The ***neighborhood conditions have changed so significantly*** that enforcement would be ***inequitable*** (must be so ***pervasive*** that the entire area or subdivision has changed; piecemeal change is not enough);
2. The person seeking enforcement is violating a similar restriction on his own land (***unclean hands***);
3. The benefitted party ***acquiesced*** in a violation of the servitude by the burdened party;
4. The benefitted party acted in such a way that a reasonable person would believe the covenant was abandoned or waived (***estoppel***); or
5. The benefitted party failed to bring suit against the violator within a reasonable time (***laches***)
100
What is the common law rule of "first in time, first in right"?
Without a recording act in place, the common law rule of ***"first in time, first in right"*** applies
* When real property is transferred multiple times by the same grantor, the ***first grantee would have valid title against subsequent grantees***
101
What is a recording act?
Statutes known as **"recording acts"** require a grantee of property to make some sort of recordation so as to ***give "notice to the world"*** that ***title to the property has already been conveyed***, and thus to ***put subsequent purchasers on guard***
* By recording, the grantee gives ***constructive*** (or ***"record"***) ***notice to everyone***
102
Who do recording acts protect?
Recording acts protect subsequent ***bona fide purchasers*** of property from secret, unrecorded interests of others
**Bona Fide Purchaser:** A bona fide purchaser is:
1. a ***purchaser*** (or mortgagee);
2. who ***pays valuable consideration*** (consideration need not be adequate, but must be of ***substantial pecuniary value***; i.e., something more than what is required for contract formation); and
3. takes ***without notice*** of the prior instrument
**NOTE:** Recording acts do ***not*** protect donees, heirs and devisees because they do not take "for value"
103
What are the three types of recording acts?
There are **three types** of recording acts:
1. **Race Statutes:** The grantee who is ***first to record prevails*** over others (only very few states have race statutes)
> **EX:** "A conveyance of an estate in land shall not be valid against a subsequent purchaser for value unless the conveyance is ***first recorded***"
2. **Notice Statutes:** A ***subsequent bona fide purchaser (BFP) prevails*** over a prior grantee that did not record
> **EX:** "A conveyance of an estate in land . . . shall not be valid against any subsequent purchaser for value, ***without notice thereof***, unless the conveyance is recorded"
3. **Race-Notice Statutes:** A ***subsequent BFP prevails*** over a prior grantee ***only if the BFP records BEFORE the prior grantee***
> **EX:** "A conveyance of an estate in land . . . shall not be valid against any subsequent purchaser for value, ***without notice thereof***, whose conveyance is ***first recorded***"
104
What is the "shelter rule"?
Under the **"shelter rule,"** a ***transfeee who takes from a bona fide purchaser (BFP) will prevail against any interest the BFP would have prevailed against***; the transferee "takes shelter" in the status of the BFP transferor and thereby "steps into the shoes" of the BFP even where the transferee otherwise fails to meet the requirements of BFP status
* **Applies even if the transferee had *actual* notice** of a prior, unrecorded conveyance
105
What are the three types of notice?
There are **three types** of notice:
1. **Actual Notice:** Prior to closing, the purchaser has ***actual subjective knowledge*** of a prior, unrecorded interest
2. **Inquiry Notice:** The purchaser of property is in possession of facts, or could make an inspection of the property, which ***would lead a reasonable person to make further inquiry*** (notice is ***imputed*** whether or not the purchaser actually makes the inquiry)
3. **Record Notice:** A purchaser is given ***constructive notice*** of ***prior instruments recorded in the "chain of title"*** (i.e., recorded in a fashion such that a reasonable search could find it)
> **EXCEPTION:** A **"wild deed"** is a ***recorded deed that is not connected to the chain of title***; it ***does NOT give constructive notice*** because a subsequent bona fide purchaser cannot feasibly find it
## Footnote
"**AIR**"
106
What is a purchase money mortgage?
A **purchase money mortgage (PMM)** is a mortgage given to:
1. the **seller** of the property ***as part of the purchase price***; or
2. a **third-party lender** who is ***lending the funds to buyer for the purpose of purchasing the property***
A **PMM**, whether ***recorded or not***, has ***priority over mortgages, liens and other claims*** against the mortgagor ***that arose PRIOR to the mortgagor's acquisition*** of title
**Vendor PMM vs. Third-Party PMM:** As between a vendor PMM and a third-party lender PMM, the ***VENDOR is usually given priority over the third-party lender***
* Because both PMMs arise from the same transaction, neither is treated as "subsequent"; thus, ***the recording acts do NOT apply unless ONLY ONE party has notice of the other***
107
What is zoning?
**Zoning** is the legislative division of a region within a state into separate districts with different ***regulations for land use, building size and the like***
* The zoning power ***derives from the state's police power*** to enact laws for the ***protection*** of the ***health, safety morals and welfare*** of its citizens, and it is ***limited by***, among other things, the:
* ***Due Process Clause*** of the **14th Amendment**
* ***Equal Protection Clause*** of the **14th Amendment**
* ***Takings Clause*** of the **5th Amendment** (made applicable to the states through the 14th Amendment Due Process Clause)
***Local governments*** can exercise zoning power ***only if authorized*** to do so by a state's ***enabling acts***
* ***Ordinances that do not conform*** to such acts are ***"ultra vires"*** (beyond the authority of the local government) and ***void***
108
What are the two types of zoning ordinances?
There are **two types** of zoning ordinances: ***cumulative*** and ***noncumulative***
**Cumulative Zoning:** A cumulative zoning ordinance ***creates a hierarchy of uses of land*** (e.g., a single-family home is a higher use than an apartment building, which is a higher use than a retail store, which is a higher use than a factory)
* Under a ***cumulative*** zoning ordinance, land that is zoned for a particular use may be used for the ***stated use*** or ***any higher use***
**Noncumulative Zoning:** Under a ***noncumulative*** zoning ordinance, ***land may be used ONLY for the purpose for which it is zoned***
109
What is a nonconforming use?
A **nonconforming use** is a use of land at the time of passage of a zoning ordinance that does not conform to the ordinance
* A nonconforming use ***cannot be eliminated all at once***
A nonconforming use ***cannot be extended or intensified*** in ways that constitute a ***substantial* change**, but ***insubstantial* changes are permitted**
* Owners can make ***reasonable*** changes to ***repair their premises*** and ***make them practicable for their purposes***
**Improvements and Rebuilding:** The **majority view** is that any change or improvement must comply with the new zoning ordinance, and that if a structure is destroyed, a rebuilt structure must comply with the new zoning ordinance
110
What is a variance?
A **variance** from the literal restrictions of a zoning ordinance may be granted by administrative action
To obtain a variance, the **property owner must show** that:
1. the ordinance imposes a ***unique hardship*** on him; and
2. the variance is ***not contrary to the public welfare***
