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Flashcards in Real Property Rules Deck (57):
1

Covenants of Title under Warranty Deed - The buyer CEASED worrying when seller delivered a warranty deed.

 

Covenants of Title under Warranty Deed - The buyer CEASED worrying when seller delivered a warranty deed.

 

CONVEY (right to convey)
 

ENCUMBRANCES have been disclosed              

ASSURANCES (further ASSURANCES that seller will provide cooperation and assistance to the other party in executing their duties under the contract)                       

SEISIN (immediate possession)                             

ENJOYMENT (quiet enjoyment)                                

DEFENSE of title against DEFECTS

2

Requirements for obtaining title by Adverse Possession - An adverse possessor's voice must ECHO long enough to get title to the property.

Requirements for obtaining title by Adverse Possession - An adverse possessor's voice must ECHO long enough to get title to the property.

 

EXCLUSIVE and actual

CONTINUOUS for the statutory period                                 

HOSTILE (without permission)                                           

OPEN and notorious

3

Non-Possessory Interests In Land - Let me CLIP PENS and I'll let you use my land

COVENANT running with the land (writing, intent, touch & concern, privity of estate)

LICENSE (revocable LICENSE that grants permission to enter without being a trespasser)

IMPLICATION (easement by IMPLICATION (conveyance with retention by owner of part of property; must be reasonably necessary))                                                        

PROFIT that complies with SoF to extract something therefrom

PRESCRIPTION (easement by PRESCRIPTION (adverse, open/notorious, continuous for statutory period - does not need to be exclusive))

EXPRESS easement by deed or will

NECESSITY (easement by NECESSITY (landlocked))

SERVITUDE equitably enforceable by another lot owner

4

Termination or Expiration of Non-Possessory Interests In Land - REMAND use of that ACRE back to its rightful owner!

RELEASE by party with non-possessory interest (written)

EMINENT DOMAIN (condemnation / taking by regulation or physical possession)

MERGER- common ownership of dominant and servient tenement

ABANDONMENT (non-use is NOT sufficient)

NECESSITY (End of Necessity)

DESTRUCTION of servient tenement

ABUSE- servient landowner may receive injunction & damages

CHANGED neighborhood conditions (equitable servitudes only)

REVOCATION (applies to revocable LICENSES only)ESTOPPEL

ESTOPPEL - where holder represents intent to abandon & servient tenement so relies

5

Ways to Sever a Joint Tenancy - To sever a joint tenancy's TTIP, RIP'M apart.

 

TTIP - 4 Unities
RIP'M - ways to sever a JT

Ways to Sever a Joint Tenancy - To sever a joint tenancy's TTIP, RIP'M apart.

 

TIME    

TITLE                                                                              

INTEREST                                                                 

POSSESSION

RIGHT of survivorship upon death

INTER VIVOS conveyance resulting in tenancy in common

PARTITION

by MORTGAGING interest in title theory state

6

Permissible Zoning Practices - The zoning board won't let me plant my FICUS in that GAP.

FLOATING zones - specified circumstances that allow landowners to circumvent zoning restrictions              

ISSUE conditional use permits (provided specified conditions exist)                                                            

CONTRACT with developers to rezone land if developed in a certain way                                                                  

planned UNIT development that permits developers to vary use and space of tract to appropriately balance residential, commercial and business use          

SEGREGATE land into districts to divide incompatible uses and protect established uses from economic loss

GRANT variances if:

unnecessary hardship is shown,

zoning precludes reasonable use, and public will not suffer substantial detriment

AMEND zoning ordinances by local legislative action

comprehensive PLANNING

7

Deed Requirements - You can't transfer property unless the deed IS WILD.

IDENTIFIES parties

SIGNED by grantor
 

WRITING

INTENT to transfer an interest demonstrated                  

LAND conveyed is described                                    

DELIVERY required

8

Tenant's Remedies for Breach by Landlord - If landlord breaches, tenant can hit the ROAD.

RESCIND the lease agreement

OFFSET rent payment after repair

ABATE rent until landlord fixes problem (must place in escrow)

DAMAGES ordered by court

9

Landlord's Obligations to Tenant - A landlord's day is MIRED with responsibilities to his tenants

MAINTAIN

IMPLIED warranty of habitability                                     

REPAIR                                                                                  

warrant quiet ENJOYMENT                                           

DELIVER possession

10

Tenant's Duties to Landlord - WE R UP to date with rent payments.

abstain from committing WASTE

refrain from interfering with quiet ENJOYMENT of other tenants

pay RENT

USE premises for legal activities only

fulfill PROMISES made to repair

11

Landlord's Remedies for Breach by Tenant - Pay the rent or you're DEAD.

withhold DEPOSIT

EVICTION                                                            

ACCELERATION clause                                              

DAMAGES for holdover

12

 

PRESENT POSSESORY ESTATES:
FEE SIMPLE ABSOLUTE

 

This is absolute ownership of potentially infinite duration. It is freely devisable, descendible, and alienable.

Creation: “To A” or “To A and his heirs.” 
o NOTE: “And his heirs” is no longer necessary.

There is NO future interest that accompanies this interest; thus, if Owner conveys “to A,” and A is alive, his prospective heirs have nothing.

 

13

 

PRESENT POSSESORY ESTATES:
THE FEE TAIL

 

Limits inheritance to the grantee’s lineal blood descendants no matter what.

Creation: “To A and the heirs of his body.”
o Virtually abolished in US today- instead it creates a Fee Simple Absolute.

Accompanying future interest:
o In the grantor, it is called a reversion;
o In a third party, it is called a remainder.

 

14

 

PRESENT POSSESORY ESTATES:
THE DEFEASIBLE FEE GENERAL RULES

 

Clear durational language is required to create a defeasible fee – not words of “hope”, “for the purpose of”, or “with the expectation of”.  If no durational language is used, then a fee simple absolute is created.

Absolute restraints on alienation (a ban on the ability to sell/transfer) are void, unless the restraint is for a reasonable purpose and a limited time. Complete bans will result in a fee simple absolute.

15

 


PRESENT POSSESORY ESTATES:
FEE SIMPLE DETERMINABLE

 

 

You may convey less than what you started with, but you cannot convey more.

Devisable, descendible, and alienable, BUT ALWAYS SUBJECT TO THE CONDITION.

Creation: “To A for so long as…” “To A during…” “To A until…”
o Grantor must use clear durational language; if the stated condition is violated, forfeiture is automatic.

o Example: A conveys Blackacre “To B so long as the premises are never used to sell ice cream.”
o B has a fee simple determinable – the condition will stay with the property even if B conveys the premises to another person.  Thus, if B conveys to C and C then sells ice cream, C will forfeit Blackacre (A has a possibility of reverter).

16

 

PRESENT POSSESORY ESTATES:
FEE SIMPLE SUBJECT TO CONDITION SUBSEQUENT

 

Estate is NOT automatically terminated upon the occurrence of some event, but the grantor reserves the right to reenter and retake.


o Accompanying Future Interest: Right to Entry (aka, power of termination).

Creation: “To A, but if X event occurs, grantor reserves the right to reenter and retake.”

Example: A conveys “To B, but if anyone eats ice cream on the premises, grantor reserves the right to re-enter and retake.” 
o A has the right of entry (the power of termination) and B has a fee simple subject to condition subsequent.

17

 

PRESENT POSSESORY ESTATES:
FEE SIMPLE SUBJECT TO EXECUTORY INTEREST

 


Estate automatically terminated upon the occurrence of some event, and the interest shifts to a third party (not the grantor).


o Accompanying Future Interest: Shifting executory interest.
o Creation: “To A, but if X occurs, then to B”

Example: A conveys “To B, but if B ever eats ice cream on the premises, then to C.”
o B has a fee simple subject to C’s shifting executory interest.
 

18

 

PRESENT POSSESORY ESTATES:
THE LIFE ESTATE

 

An estate measured in explicit lifetime terms – never in terms of years.
 

Creation: “To A for life.”
o A has a life estate and is called the life tenant.
o Future Interest: O has a reversion (at end of A’s life, O / O’s heirs will take).

The life estate pur autre vie: A life estate measured by a life other than the grantee’s. 
o Creation: “To A for the life of B.”
o Future Interest: B has a remainder.
 

Doctrine of Waste: A life tenant is allowed all of the ordinary uses and profits from the land but is not allowed to commit waste.  Waste is anything that can hurt the interests of someone who has a future interest in the land (those future interest holders can sue for damages/injunction for acts of waste). 

There are three types of waste: voluntary/affirmative waste, permissive waste / neglect, and ameliorative waste

19

 

FUTURE INTEREST IN GRANTOR

 

The Possibility of Reverter: Accompanies the fee simple determinable.

The Right of Entry: Also known as the Power of Termination: Accompanies only the fee simple subject to a condition subsequent.

The Reversion: The future interest that arises in a grantor who transfers an estate of a lesser amount than she started with, other than a fee simple determinable or a fee simple subject to condition subsequent (Defeasible Fees).


 

20

 

FUTURE INTEREST IN TRANSFEREE

 

Remainders: Future interest in a grantee that is capable of becoming possessory upon the expiration of a prior possessory estate created in the same conveyance in which the remainder is created.
 

Vested Remainders: Remainders are vested if created in both an ascertained person AND not subject to any condition precedent.  Indefeasibly Vested Remainders, Vested Remainder Subject to Complete Defeasance, and Vested Remainder Subject to Open.
 

Indefeasibly Vested Remainders: Holder will acquire the estate with no conditions attached. 
 

Vested Remainder Subject to Complete Defeasance: Holder can be completely divested of his estate by a condition subsequent.
 

Vested Remainder Subject to Open: A remainder vested in a group of takers, at least one of whom is able to take. 

o Closed versus Open Class: The group will not take until the class is closed (and, once closed, no more members can join).  A class will be open if others can join in, and closed when no others can join, and thus the class can demand possession
 

Executory interest: It is a future interest in a transferee (a third party), which is not a remainder and which takes effect by either cutting short some interest in another person (shifting) or in the grantor or his heirs (springing).

21

 


SHIFTING EXECUTORY INTEREST

 

Always follows a defeasible fee and cuts short someone other than the grantor.

Example: O conveys “To A and her heirs, but if B opens an ice cream shop in the next two years, to B and his heirs.” 
o A has a fee simple subject to B’s shifting executory interest.

The Rule Against Perpetuities (RAP) does not apply because of the two-year limitation in the example above.

 

22

 

SPRINGING EXECUTORY INTEREST

 

Always follows a defeasible fee and cuts short the grantor.

Example: O conveys: “To A, if and when he opens an ice cream shop.” A has not opened an ice cream shop.
o O has a fee simple subject to A’s springing executory interest.

The RAP is not violated because we will know by the end of A’s life if condition is met or not.

23

 

RULE AGAINST PERPETUITIES

 

No interest is good unless it must vest, if at all, within 21 years of some life in being at the time of creation. 
 

Steps:
1. Classify the Future Interest: The Rule Against Perpetuities (RAP) applies only to: contingent remainders, executory interests, and certain vested remainders subject to open.
2. Find the Condition Precedent and a Measuring / Validating Life: Locate what the condition precedent is to the vesting future interest involved, as well as a person alive at the date of conveyance.
3. Determine if, within 21 years of that measuring life, we will know if the future interest will vest or not?
o If YES: then the conveyance is valid. 
o If NO: The future interest is VOID (the rest of the conveyance might be fine – so strike down only the future interest that violates the RAP
 

Gift to Open Classes: A gift to an open class that is conditioned on the members surviving beyond age 21 will violate the RAP.

24

 

JOINT TENANCY

 

Two or more people own a single, unified interest in property with the right of survivorship.

Right of Survivorship: When one joint tenant dies, his share goes to the surviving members of the joint tenancy.  Thus, although alienable, the joint tenancy is NOT devisable or descendible.
 

Creation of a Joint Tenancy: the Four Unities
o Joint tenants must take their interests: (1) at the same time, (2) by the same title, (3) each having identical interests, and (4) the right to possess the whole.

o Use of a Straw: For a grantor to create a joint tenancy with another, he must use a straw to satisfy the four unities.  This works by first conveying the land to the straw, and then the straw conveys the land back to the original grantor and the other person as a joint tenancy with the right of survivorship.
 

Severance of a Joint Tenancy
o Partition
o Sale
o Doctrine of Equitable Conversion
o Mortgage:

25

 

TENANCY BY ENTIRETY

 

A marital interest in property with the right of survivorship.

Creation: Presumed in any conveyance between married partners, unless the conveyance specifically says otherwise.

Protections Afforded: This is a very protected form of co-ownership – creditors of only one spouse cannot reach the tenancy, and neither spouse alone can defeat the right of survivorship by conveying the tenancy to a third party. 
 

26

 

TENANCY IN COMMON

 

Two or more own the property with NO right of survivorship between the tenants in common.

Thus, each interest is descendible, devisable, and alienable (which courts prefer).

Each co-tenant owns an individual part and each has a right to possess the whole.

27

 

RIGHTS AND DUITES OF CO-TENANTS

Possession:  Each co-tenant is entitled to possess and enjoy the whole. Thus if one co-tenant wrongfully excludes another from possession, s/he has committed wrongful ouster. 

Adverse possession:  Unless he has ousted the other co-tenants, a co-tenant in exclusive possession for the statutory period cannot acquire title to the exclusion of the others.

Rent from co-tenant in exclusive possession:  Absent ouster, a co-tenant in exclusive possession is NOT liable to the others for rent.

Rent from third parties:  A co-tenant who leases all or part of the premises to a third party must provide the other co-tenants with their fair share of the rental income.

Carrying costs:  Each co-tenant is responsible for their fair share of the carrying costs (taxes, mortgage interest payments) based on their undivided share of the property.

Repairs: A co-tenant can seek contribution for reasonable / necessary repairs, if they have told the other co-tenants of the need to repair.

Improvements: There is no right to contribution for improvements.  However, at partition, the co-tenant who made the improvements is entitled to a credit for any increase in value because of the improvements; and conversely, is responsible for any drop in value.

Waste: Co-tenants must not commit waste (voluntary / permissive / ameliorative) and other co-tenants may bring an action for waste during the co-tenancy.

Partition: Co-tenants can bring an action for partition 

28

 

TENANCY FOR YEARS

 

A tenancy for a fixed period of time where the date of termination is given.

Because a term of years states from the outset when it will terminate, NO notice is needed to terminate. Terms greater than one year must be in writing to be enforceable.
 

29

 

PERIODIC TENANCY

One that continues for successive intervals until the Landlord or Tenant gives notice.

 

Creation: Either expressly (e.g., month-to-month) OR by implication.  

There are three ways a periodic tenancy can be implied:

o No mention of duration, but provision is made for rent to be paid at set intervals;
o If a tenancy of years FAILS because of the statute of limitations, a periodic tenancy is created measured by the tender of rent; or

o Holdover Tenant: Where a Term of Years lease ends, an implied periodic tenancy arises (residential leases - usually a month to month created, unless the landlord gives notice of an increase in rent or changed terms before the term of year lease ends / commercial leases creates a year to year periodic tenancy with the original terms of the contract intact unless notice is given before the end of the terms of years.)

Termination: Written notice must be given, with at least as much time as equal to the length of the period itself (unless otherwise agreed).  For example, a month-to-month periodic tenancy would require one month’s notice.

o Exception:  If the tenancy is for one year or greater, only six-months notice is required.

30

 

TENANCY AT WILL

 

A tenancy for NO fixed duration. Will last for as long as the landlord / tenant desire.

Either party can terminate the tenancy at any time, but a reasonable demand to vacate is usually required.  A court will treat as an implied periodic tenancy if rent is paid regularly
 

31

 

TENANCY AT SUFFERANCE

 

Occurs when a tenant stays past the expiration of the lease, and allows the landlord to continue to collect rent. This lasts until the landlord evicts the tenant, or elects to hold him or her to a new tenancy.

32

 

EASEMENT

 

A non-possessory property interest that entitles its holder to some form of use or enjoyment of another’s land, called the servient tenement.

Affirmative Easements: The right to do something on the servient land.

Negative Easements: Allows the easement holder to prevent the landowner of the servient tenement from doing something that would otherwise be allowed. 

o Examples: Light, air, support, stream water from an artificial flow, and in CA - scenic view.

o Creation: Can only be created expressly – by a writing signed by the grantor (there are no automatic / natural negative easements).

33

 

CREATION OF EASEMENTS

 

Express Easements: Occur either by grant or reservation.

Requirements:
o In writing;
o Identify the parties and the land;
o Be signed by the grantor; and
o Indicate intent on the part of the grantor.
 

Easement by Implication: Arises out of operation of law and does not have to be in writing. 
o Prior Existing Use: Most easements arise out of prior existing use.  There must have been apparent and continuous use of the easement when the severance occurred.

Easement by Necessity: Occurs when there is no legal right of access to a public road.

Easement by Prescription: Arises when someone uses / occupies another’s land without permission.  The elements for easement by prescription are the same as for adverse possession 

34

 

TERMINATION OF EASEMENTS

 

Estoppel: Occurs if the servient owner materially changes his or her position in reasonable reliance on the easement holder’s assurances that the easement will not be enforced.

Release: A written release from the easement holder to the servient owner.

Destruction of the servient land: Unless the destruction was through some willful act of the servient owner.

Condemnation: Of the servient estate by eminent domain.

Abandonment: Must show some physical action by the easement holder that proves the intent to abandon.  By contrast, mere nonuse or words are insufficient to terminate by abandonment.

Necessity: Easements by necessity end when the necessity does, unless the easement was created by an express grant.

Merger doctrine: Also called unity of ownership, the easement ends when title to both the easement and the servient tenement become vested in the same person

35

 

RIGHTS IN THE LAND OF ANOTHER: PROFITS

 

The holder of a profit can enter the servient land and take from it the soil or some substance of the soil.

"Profit a Prendre"

36

 

RIGHTS IN THE LAND OF ANOTHER: LICENSES

 

A mere privilege to enter another’s land for a specific purpose.

Licenses are freely revocable by the licensor, unless estoppel applies (look for a situation where licensee invests substantial money / labor in reliance on the continuation of the license).
 

37

 

RIGHTS IN THE LAND OF ANOTHER: COVENANTS

 

A covenant is a promise to do or not do something related to land.

Types of Covenants:
o Negative (restrictive covenants): A promise to REFRAIN from doing something related to land.
o Affirmative: a promise to do something related to land.

Requirements for the Burden to run:
In order for the burden of a covenant to run with the land, there must be (1) notice; (2) intent; (3) touch and concern; (4) vertical privity; and (5) horizontal privity

Requirements necessary for the benefit to run:
In order for the benefit of a covenant to run with the land there must be (1) intent; (2) touch and concern, and (3) vertical privity.
 

38

 

COVENANTS: NOTICE

 

A bona fide purchaser who has no notice of the covenant, and who records his or her own deed will not be bound by it.  

There are three type of notice:  Actual, constructive, or inquiry notice.

o Actual Notice: Refers to direct knowledge of the covenant.
o Constructive Notice: When the covenant is recorded with a public official, the public has constructive notice.
o Inquiry Notice: A reasonable inspection of the land would have revealed the covenant.

39

 

COVENANTS: INTENT

 

The original covenanting parties must have intended that the successors in interest be able to enforce the covenant. (Look to language of original agreement).

40

 

COVENANTS: TOUCH AND CONCERN

 

A covenant touches and concerns the land when it directly relates to the use and enjoyment of the land.

 

41

 

COVENANTS: VERTICAL PRIVITY

 

Exists between the original party to the covenant and the subsequent owner.  In order to be bound by the covenant, the successor must hold the entire estate in land held by the original party.

42

 

COVENANTS: HORIZONAL PRIVITY

 

Requires that at the time the original parties entered into the agreement, they shared some interest in land, independent of the covenant (i.e. landlord and tenant, mortgagee and mortgagor).

43

 

EQUITABLE SERVITUDE

 

A covenant that, regardless of whether it runs with the land at law, equity will enforce against the assignees of the burdened land who have notice of the covenant.
 

Negative equitable servitude: One that may be implied by a common plan or scheme for the development of a residential subdivision, so long as landowners have notice of the agreement.

o Common Plan or Scheme: May be evidenced by a recorded plat, a general plat, or restrictions; or an oral representation to early buyers.
o Notice: Buyers must have notice of the covenant – either actual, inquiry, or record notice.

Requirements for The Burden to Run: In order for the burden of a covenant to run with the land, there must be (1) notice; (2) intent; and (3) touch and concern.

Requirements for The Benefit to Run: In order for the benefit to run with the land, there must be (1) intent and (2) touch and concern.

44

 

EQUITABLE DEFENSES

 

 

Changed circumstances in the neighborhood: The party seeking release from the equitable servitude must demonstrate that there are pervasive changes to the neighborhood, not just pockets of change.
Unclean Hands: The party seeking release from the servitude must show that the party seeking enforcement is violating a similar restriction on their own land (even if it is less serious).

Acquiescence:  The benefitted party will be deemed to have abandoned the servitude if they acquiesced to the violation by a burdened party.

Estoppel and Laches:  The benefited party will be estopped from enforcing the servitude if they acted in such a way that a reasonable person would believe that the covenant was abandoned.  Conversely, if the benefitted party fails to bring suit against a violator within a reasonable time, the action may be barred by laches.

Termination:  The servitude can be terminated by a written release from the benefit holder, a merger of the benefitted and burdened estates, or condemnation of the burdened party.

45

 

ADVERSE POSSESSION

A person can acquire title to a property if, for a statutory prescribed period of time can, certain elements are met.

Continuous: Uninterrupted possession for the statutory period.
Open and Notorious: The way the actual owner would possess the land under circumstances.
Actual Entry: Entry must be literal - symbolic/hypo/letter of intent entry is INSUFFICIENT.
Hostile: The possessor cannot have the true owners consent to be there – any consent defeats the claim.

Tacking: One adverse possessor may tack on to his time to his predecessor’s time, so long as there is privity.

o Privity: Will be satisfied by non-hostile nexus (Examples: contract, deed, will, or blood).
o Ouster: Tacking is NOT allowed when there has been an ouster.

 

46

 

NOTICE RECORDING

 

TYPES OF NOTICE:  There are three types of notice that a buyer may be charged with: actual notice, inquiry notice, and record notice.
o Actual Notice:  The buyer learns of a previous buyer prior to the closing.
o Inquiry Notice: The buyer is on inquiry notice of whatever an examination of the property would show.
o Record Notice: The buyer is on record notice of a prior deed if, at the time the buyer takes, the prior deed was properly recorded.

Notice States: The buyer will win.
Race-Notice States: The buyer will win IF he is a bona fide purchaser AND records first.
 

47

 

RECORDING STATUTES

 

Notice Statute: A conveyance of an interest in land shall not be valid against any subsequent purchaser for value, without notice thereof, UNLESS the conveyance is recorded.

Race Notice Statute: Any conveyance of an interest in land shall not be valid against any subsequent purchaser of value without notice thereof, whose conveyance is first recorded.
 

48

 

RECORDING: THE SHELTER RULE

 

A purchaser who takes from a bona fide purchaser will prevail against any entity that the bona fide purchaser would have prevailed against (the purchaser “takes shelter” in the bona fide purchaser’s status).

49

 

WILD DEED

 

A wild deed is a deed that is unconnected to the chain of title, and thus incapable of giving record notice.

Example: O sells Blackacre to A, who does not record.  A sells to B, and B records.  The A – B deed is not connected to the chain of title (even though recorded) because the O – A deed is not recorded.  The A – B deed is the wild deed. 
 

50

 

MORTGAGE

 

A mortgage is the conveyance of a security interest in land, intended by the parties to be collateral.  It is the combination of a debt and a voluntary lien on property to secure that debt.

o The debtor-mortgagor still has title and the right to possess the property until foreclosure.  The creditor-mortgagee has a lien on the property.

Legal Mortgage: Also called a note, deed of trust, or security interest in land; must be in writing to satisfy the Statute of Frauds.
Equitable mortgage: Occurs when instead of signing a note in exchange for the debt, the mortgagor gives the mortgagee (creditor) the deed to the property
 

51

 

FORECLOSURE

 

JUDICIAL ACTION: Proper judicial action is required for a foreclosure, where the land will be sold and the proceeds used to satisfy the debt.
o Attorney fees, foreclosure expenses, and any interest on the mortgage are paid off first.
o If the proceeds are less than the debt, then the mortgagee can bring a deficiency action against the debtor.
o If the proceeds are more than the debt, then the junior liens are repaid in order of their priority, with any remainder going to the debtor

Foreclosure will terminate interests junior to the mortgage being foreclosed.

Foreclosure will not affect senior interests – thus the buyer at the foreclosure action takes the property subject to those interests.

CREDITOR PRIORITY: Creditors must record properly in order to have priority to the proceeds from a foreclosure sale.  Priority is determined by who recorded first – first in time, first in right.
 

52

 

WATER RIGHTS

 

WATER COURSES: Two systems to determine allocation of water:
o The Riparian Doctrine: Water belongs to those who own the land bordering the watercourse.
o The Prior Appropriation Doctrine: Water belongs to the state, but people can acquire the right to divert water. 
 

GROUNDWATER / PERCOLATING WATER: Water beneath the surface of the earth that is not confined to a known channel.  Surface owners can make reasonable, but not wasteful, use of the water.
 

SURFACE WATERS: Water coming from rain, springs, or melting snow, and which have not yet reached a natural watercourse or basin.
o The common enemy rule: A landowner is allowed to change drainage, or make changes to his land to combat the flow of surface water.  NOTE: Some jurisdictions require these changes not cause unnecessary harm to another person’s land.

53

 

LAND POSSESSOR’S RIGHTS

 

A possessor of land has the right to be free from trespass and nuisance.

TRESPASS: The invasion of land by tangible, physical object. A plaintiff must bring an action for ejectment to remove the trespasser.
 

PRIVATE NUISANCE: A substantial and unreasonable interference with another’s use and enjoyment of land.
o No tangible, physical invasion is required – think smells or sound. 
o Objective Test: Nuisance will be considered in terms of a reasonable person, regardless if the plaintiff is hypersensitive.
 

PUBLIC NUISANCE: Affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal.
o Need not affect every member of community before it can be deemed a public nuisance.
 

54

 

EMINENT DOMAIN

 

Government’s Fifth Amendment power to take private property for public use in exchange for just compensation.

Types of Takings
o Explicit taking: Acts of governmental condemnation.
o Implicit or regulatory takings: A government regulation that, although not intended to be taking, has the same effect.

Remedies- Government must either:
o Compensate owner; OR
o Terminate the regulation and pay owner for damages that occurred while still in effect

 

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ZONING

 

Pursuant to its police powers, government may enact statutes to reasonably control land use.

Variance: Can be granted or denied through an administrative action (usually a zoning board), based on a proponent demonstrating that there is:

o Undue hardship from restriction; and
o The variance will NOT decrease neighboring property values.

Nonconforming use: Occurs when a zoning ordinance deems a once lawful, existing use now nonconforming.  To ensure changing use is not an unconstitutional taking, the use cannot be eliminated all at once, unless just compensation is provided.

Unconstitutional exactions: Amenities the government seeks in exchange for granting permission to build.

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Burden or Benefit Running With the Land: An Approach

Burden or Benefit Running With the Land: An Approach

Step 1: Is there a covenant/equitable servitude?

A Covenant is a promise to do (positive covenant) or not do (negative covenant) something related to land. An Equitable Servitude is a covenant that will be enforced in equity against noticed assignees of the burdened land, even if it doesn’t run with the land.

Step 2: Is the agreement an equitable servitude or a covenant?

Breached Covenants are remedied with monetary damages and breached Equitable Servitudes are remedies with injunctions. Which remedy is the plaintiff after?

Step 3: Determine whether the Benefit or the Burden of the covenant/equitable servitude is potentially running with the land.

he Burden is an obligation that the owner/occupier of the land in question must fulfill as part of living there or owning it (such as paying rent or keeping the garden tidy). The Benefit is a bonus to living or owning the land in question that is received by the owner/occupier for living there (such as an option to renew the lease or a gratis garbage service).

Step 4: Does the burden of the covenant/equitable servitude run with the land?

Step 4A (Covenants - Burden) – In order for the burden to run in the case of a covenant, there must be:

a) Notice – Either direct knowledge of the covenant, constructive knowledge of the covenant (it’s been recorded in a public office), or the covenant must be revealable through reasonable inspection of the land.
b) Intent – The contract itself implies that it (the covenant) is to be enforced against successors in interest to the signatories.
c) Touch and Concern: The covenant directly relates to the use and enjoyment of the land.
d) Vertical Privity – Successor in interest to signatory must hold the entire in land owned by the original owner.
e) Horizontal Privity – At the time the covenant was entered into, the signatories shared some interest in the land (such as mortgagee – mortgagor or landlord – tenant).

Step 4B (Equitable Servitudes – Burden) – In order for the burden to run in the case of an equitable servitude, there must be:
a) Intent
b) Notice
c) Touch and Concern

Step 5: Does the benefit of the covenant/equitable servitude run with the land?

Step 5A (Covenant – Benefit) – In order for the benefit to run in the case of a covenant, there must be:
a) Intent                                                                                      b) Touch and Concern                                                              c) Vertical Privityy

Step 5B (Equitable Servitude – Benefit) - In order for the benefit to run in the case of a equitable servitude, there must be:
a) Intent
b) Touch and Concern

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Dedication & Acceptance

 

Dedication and acceptance requires: (1) an intention on the part of the owner to dedicate; and (2) acceptance by the public. Under common law, no specific length of possession is necessary to constitute a valid dedication; all that is required is the assent of the owner, and the enjoyment by the public for such a length of time that the public accommodation and private rights would be materially affected by a denial or interruption of the enjoyment