RG-property attack outline -Spring 2021 Flashcards
(173 cards)
1
Q
What is Acquisition by Discovery?
A
If you discover something first, you are the first possessor with a preemptive right
Referenced case: Johnson v. M’Intosh
2
Q
What does Acquisition by Capture entail?
A
Unowned property that is captured becomes the property of the person who captures it
Referenced case: Pierson v. Post
3
Q
What is the Prior Possessor Rule in Finders Law?
A
Prior finder prevails over later finder because they have better title than anyone except TO
Referenced case: Armory
4
Q
Who prevails if the object is lost and the finder is not a trespasser?
A
Finder prevails
Related case: South Staffordshire
5
Q
If the finder is a trespasser, who prevails?
A
Landowner prevails
6
Q
What happens if the object is embedded in the land?
A
Landowner prevails
Referenced case: Hannah v. Peel
7
Q
What is the outcome if the object is not embedded?
A
Finder prevails
Referenced case: Hannah v. Peel
8
Q
What is the distinction between Private and Public land regarding finders?
A
On private home, landowner prevails if embedded; if not, finder prevails. On public land, finder prevails
Referenced case: Bridges v. Hawkesworth
9
Q
What is the definition of Adverse Possession?
A
A legal doctrine allowing a person to claim ownership of land under certain conditions
10
Q
What is meant by ‘Claim of Right’ in Adverse Possession?
A
Requirement of hostility or claim of right on the part of an adverse possessor
11
Q
What is ‘Color of Title’?
A
A claim founded on a written instrument or judgment that is defective and invalid
12
Q
What must an adverse possessor do to possess land under color of title?
A
Possess all the land described in the defective deed as long as it consists of a single parcel and occupies a significant portion
13
Q
What are the elements of Adverse Possession?
A
- Actual
- Exclusive
- Open and Notorious
- Hostile under a claim of right
- Continuous for the statutory period
14
Q
What does ‘Actual’ mean in the context of Adverse Possession?
A
Claimant must physically use the parcel of land as a reasonable owner would
15
Q
What does ‘Exclusive’ mean in Adverse Possession?
A
Possession must NOT be shared with the true owner or the general public
16
Q
What is required for possession to be considered ‘Open and Notorious’?
A
Acts of possession must be visible and obvious to provide notice to the true owner
17
Q
What does ‘Hostile under a claim of right’ signify?
A
Claimant uses the land as a reasonable owner would without permission from the TO
18
Q
What is meant by ‘Continuous for the statutory period’?
A
Adverse possessor must continuously occupy the land for the limitation period without voluntary abandonment
19
Q
What is ‘Tacking’ in Adverse Possession?
A
An adverse possessor may add time of possession from a prior possessor if in privity with one another
20
Q
What is the Old NY Statute regarding Adverse Possession?
A
10-year statute of limitations with specific requirements for color of title and actual possession
21
Q
What does the New NY Statute stipulate regarding Adverse Possession?
A
10-year statute of limitations with acts sufficiently open to put a diligent owner on notice
22
Q
What is a Fee Simple Absolute?
A
A grant that lasts forever, providing absolute ownership of infinite duration
23
Q
What are the distinguishing characteristics of a Fee Simple Absolute?
A
- Freely alienable
- Freely devisable
- Freely descendible
24
Q
What is a Life Estate?
A
Possessory estate that expires at the death of a specified person
25
What is the Waste Doctrine?
Life tenant must not commit waste which can be voluntary, permissive, ameliorative, or economic
26
What is a Fee Simple Determinable?
A fee simple with a condition that if broken, possession reverts back to the grantor
27
What is a Fee Simple Subject to Condition Subsequent?
Created by clear language and does not terminate automatically; grantor must exercise the right of re-entry
28
What is a Reversion in the context of Future Interests?
When a grantor conveys a lesser duration estate than originally owned, creating a reversion
29
What is a Possibility of Reverter?
When a grantor conveys an estate upon a determinable limitation
30
What is the Right of Re-entry?
Created when the grantor retains the right to cut short a transferred interest upon a specified future event
31
What type of interest does A have in 'O conveys to A, so long as they never become a lawyer'?
A has fee simple determinable
## Footnote
A's interest is contingent on a specific condition.
32
What future interest does O have in 'O conveys to A, so long as they never become a lawyer'?
O has a future interest because it is possibility of reverter
## Footnote
This is a type of future interest that can occur when a fee simple determinable is created.
33
What is a right of re-entry in the context of a fee simple subject to condition subsequent?
Created when the grantor conveys an estate subject to a retained right to cut short the transferred interest upon a specified future event
## Footnote
Example: 'O conveys to A but if coffee is ever consumed on sight grantor reserved the right to re-enter and retake.'
34
What type of interest does A have in 'O conveys to A but if coffee is ever consumed on sight grantor reserved the right to re-enter and retake'?
A has a fee simple subject to condition subsequent
## Footnote
This type of interest is conditional and can be terminated by the grantor's right of re-entry.
35
What is a remainder in property law?
A future interest created in a grantee capable of becoming possessory on the natural conclusion of the present estate
## Footnote
Remainders never follow defeasible fees and typically follow a life estate or term of years.
36
What are the two types of vested remainders?
* Vested
* Contingent
## Footnote
Vested remainders are created in a known taker and not subject to a condition precedent.
37
What is an indefeasibly vested remainder?
Certain to become and remain possessory with no strings attached
## Footnote
Example: 'To A for life, then to B.'
38
What distinguishes a vested remainder subject to complete divestment?
Remainderman is known and not subject to any condition precedent but subject to a condition subsequent
## Footnote
Example: 'To A for life, then to B, but if B leaves legal profession than to C.'
39
What is a contingent remainder?
Created in an unknown person or that has a condition precedent to ultimate possession
## Footnote
Example: 'To Jane if she marries, but if she never marries, to Elizabeth.'
40
What is the definition of an executory interest?
Future interest created in grantee that takes effect by cutting short another or has a time lapse
## Footnote
Types include springing and shifting executory interests.
41
What is a springing executory interest?
Cuts short O, the grantor
## Footnote
Example: 'O conveys Blackacre to A, when A marries.'
42
What is a shifting executory interest?
Cuts short another transferee and always follows a defeasible fee
## Footnote
Example: 'O conveys to A, but if A ever uses the premises for non-residential purposes, then to B.'
43
What is early vesting in property law?
Property is divested after grantor’s death
## Footnote
Common law favors vested remainders over contingent with an early vesting presumption.
44
What is late vesting in property law?
Property is divested at life tenant’s death
## Footnote
Grantor’s intent overrides the presumption of early vesting.
45
What is a fee simple?
Lasts forever
## Footnote
Example: 'To A and her heirs.'
46
What future interest does a fee simple determinable create in the grantor?
Possibility of reverter
## Footnote
Example: 'To A, so long as they don’t divorce.'
47
What is a fee simple subject to condition subsequent?
When condition is broken, grantor has a right of re-entry
## Footnote
Example: 'To A but if A divorces, O has right to re-enter.'
48
What is a joint tenancy?
A form of co-ownership with a right of survivorship
## Footnote
Requires four unities: time, title, interest, and possession.
49
What happens to a joint tenancy if one of the four unities is severed?
The joint tenancy is terminated, and the co-tenants hold the property as tenants in common
## Footnote
Example: Unilateral conveyance or conveyance to a third party.
50
What is a tenancy by the entirety?
A type of joint tenancy between married persons with a right of survivorship
## Footnote
Cannot be severed by unilateral conveyance.
51
What is a partition action?
Any cotenant can unilaterally terminate the cotenancy by filing a partition action
## Footnote
There are two types: partition in kind and partition by sale.
52
What is a partition in kind?
Physically divides the property into distinct portions
## Footnote
Courts prefer this over forced sales.
53
What is the consequence for a cotenant who pays for repairs to the property?
They are not entitled to contribution from other cotenants unless partition occurs
## Footnote
They can receive credit for reasonable repairs or improvements upon partition.
54
What is the cost of the repair made?
Calculated in how much the improvement added value to the house.
55
What is Owelty?
A form of damages that comes into play for partition in kind where values in division are unfair.
56
Are co-owners obliged to improve property?
No, a co-owner is not obliged to improve property.
57
Can an improving co-owner recover improvement costs from fellow owners?
No, but they may recover the value added by improvements upon partition or by deduction from rent.
58
What is the right to possession for cotenants?
Each cotenant has the right to possess and enjoy the entire property, regardless of ownership share.
59
What is the majority rule regarding cotenants paying rent?
A cotenant is not required to pay rent to other cotenants for possession unless specific conditions apply.
60
What are the exceptions to the majority rule regarding rent payment?
1) Ouster 2) Special duty to other owners 3) Agreement to pay rent.
61
What do minority views state about cotenants in exclusive possession?
They are liable to other co-tenants for rent.
62
What are cotenants obligated to pay?
Their pro rata share of mortgage, tax, assessments, and other payments that could give rise to a lien.
63
What happens if one cotenant pays more than their pro rata share?
They may recover the excess amount in a contribution action after a judicial sale or partition action.
64
What is the right regarding third-party rents for cotenants?
If one cotenant leases the premises to a third party, they must split the rent with the other co-tenants.
65
What is an ouster?
When one cotenant refuses to allow another cotenant to possess the property.
66
What can an ousted cotenant do?
They may bring an ouster action to regain possession or recover monetary damages.
67
What are the two types of ousters?
1) Actual occupancy 2) Adverse possession.
68
When does the statute of limitations begin to run in ouster cases?
Once someone has been ousted.
69
How did common law view married women's property rights?
Married women were under their husband’s protection; everything belonged to the husband.
70
What is the modern law regarding spousal property rights?
Husbands can no longer encumber property without spousal consent, and both spouses have equal shares.
71
What happens to marital property upon divorce?
Some courts include all property, while others limit it to what was acquired by the earnings of the marital partners.
72
How do courts treat professional degrees in marital property?
Courts are split; some view them as property while others do not.
73
What is the effect of a spouse's debt on property ownership?
Depends on the group classification of the state regarding marital property and debts.
74
What is a tenancy at will?
A tenancy that continues until terminated by either party, without notice.
75
What is a tenancy at sufferance?
Created when a tenant refuses to vacate after the lease has terminated.
76
What are the characteristics of a term of years lease?
Fixed period of time, no need for notice to terminate, must be in writing if longer than 1 year.
77
What is required to terminate a periodic tenancy?
Proper notice is required.
78
What are the prima facie elements of housing discrimination?
1) Member of a protected class 2) Applied and qualified for housing 3) Rejected while housing was available.
79
What does the Federal Fair Housing Act prohibit?
Discriminatory refusal to rent and advertising discrimination.
80
What is privity of estate?
The relationship between landlord and the current tenant holding the lease.
81
What is a sublease?
A transfer of less than the entire interest in the leasehold.
82
What is an assignment in leasing?
A transfer of all remaining interest in the lease to another tenant.
83
What happens if the wording in a lease is ambiguous?
Courts may look to the intent of the parties rather than solely the wording.
84
What must a tenant do according to their obligations?
Pay rent, avoid waste, refrain from illegal uses, and not commit nuisance.
85
What remedies does a landlord have when a tenant breaches their duties?
Eviction and suing for damages.
86
What is the landlord's duty regarding damages?
To avoid damages
## Footnote
Landlords must refrain from actions that could lead to damages.
87
What is the landlord's obligation regarding illegal uses?
Refrain from any illegal uses
## Footnote
Landlords must ensure that the property is not used for illegal activities.
88
What is a tenant's duty regarding misrepresentation?
Honesty as to intended purpose
## Footnote
A tenant has a duty not to misrepresent their intentions.
89
What is the landlord's remedy for breach of duty by the tenant?
1) Eviction 2) Back Rent 3) Damages
## Footnote
Landlords have several remedies when tenants breach duties.
90
What must a landlord do to evict a tenant?
Use summary proceedings
## Footnote
Landlords cannot engage in self-help but must seek judicial proceedings.
91
What does 'back rent' apply to?
Only if tenant breached duty to pay rent
## Footnote
Landlords can sue for back rent if tenants fail to pay.
92
What is the landlord's duty regarding mitigation?
Duty to mitigate damages
## Footnote
If a landlord fails to mitigate, they may be barred from claiming back rent.
93
What happens if a tenant abandons the premises?
1) Accept surrender 2) Reject abandonment 3) Reject but relet premises
## Footnote
Landlords have options when tenants abandon the property.
94
What is the modern rule regarding landlord's duty to mitigate?
Landlord has a duty to mitigate
## Footnote
This rule contrasts with the common law position.
95
What is 'constructive eviction'?
Wrongful interference with tenant's use and enjoyment
## Footnote
Tenants can terminate lease if they experience constructive eviction.
96
What elements are needed for constructive eviction?
1) Wrongful act by landlord 2) Substantial deprivation 3) Complete vacation
## Footnote
These are necessary for a tenant to claim constructive eviction.
97
What is the 'implied warranty of habitability'?
Landlord must maintain premises fit for human habitation
## Footnote
This applies only to residential leases.
98
What are tenant remedies for breach of warranty of habitability?
1) Terminate and leave 2) Stay and withhold rent 3) Stay and repair
## Footnote
Tenants have several options if the warranty of habitability is breached.
99
What is 'equitable conversion'?
Buyer's land upon signing contract, before closing
## Footnote
Risk of loss typically shifts to the seller after the contract is signed.
100
What must a land contract satisfy under the statute of frauds?
Must be in writing, signed, describe the land, and recite consideration
## Footnote
This is necessary for enforceability.
101
What are the implied promises in every land contract?
1) Marketable title 2) No false statements of material fact
## Footnote
These are fundamental obligations of the seller.
102
What is a quitclaim deed?
Worst deed; contains no warranties of title
## Footnote
It conveys whatever the grantor owns without any guarantees.
103
What is a general warranty deed?
Best deed; contains six promises regarding title defects
## Footnote
It provides the most protection for the buyer.
104
What are the two components of a mortgage?
1) The Note 2) The Mortgage
## Footnote
The note is the promise to repay, while the mortgage secures that promise.
105
What is a purchase-money mortgage?
Mortgage taken out to purchase property
## Footnote
It directly funds the acquisition of real estate.
106
What happens if a transferee assumes a mortgage?
Transferee is primarily liable upon default
## Footnote
The original borrower remains secondarily liable.
107
What is the lender's option upon default of a mortgage?
Suit to collect debt or foreclose
## Footnote
Lenders can take legal action to recover debts.
108
What is actual notice in a recording system?
Real knowledge of a claim
## Footnote
It implies that a party is aware of existing claims on the property.
109
What is constructive notice?
Notice derived from the record or obligation to inquire
## Footnote
It is a legal assumption that a party has knowledge of recorded claims.
110
What is record notice?
A subsequent purchaser is on record notice if prior purchaser's deed was properly recorded in the chain of title.
## Footnote
Searching the record is part of the subsequent purchaser’s duty of due diligence.
111
What is inquiry notice?
A person obligated to inquire is constructively notified of facts that would reasonably be revealed by the inquiry.
## Footnote
Circumstances triggering inquiry include possession of property by someone else, record reference to an unrecorded instrument, deeds from a common grantor in index, and the character of the neighborhood.
112
What are the requirements to be a bona fide purchaser?
1) Substantial pecuniary consideration must be paid. 2) Buyer must have been without notice of prior purchaser's existence at the time of closing.
113
What is the rule of the Race Statute?
First in time, first in right; whoever records first wins, regardless of notice.
114
What is the rule of the Notice Statute?
When B purchases property without notice of A, they prevail as a bona fide purchaser, even without recording.
## Footnote
Example: If B is a bona fide purchaser in a notice jurisdiction, B wins regardless of recording.
115
What happens if B is a bona fide purchaser with notice?
A prevails if A recorded before B took land, as B was on notice of A’s recording.
116
What is the Shelter Rule?
If B takes as a bona fide purchaser and sells to C, C is protected even if aware of A's recording.
117
What is the rule for Race-Notice jurisdiction?
A subsequent purchaser can only prevail if they took without notice and recorded first.
118
What is a wild deed?
A deed that is not effective until the grantor records it, even if the grantee records first.
119
What is the purpose of the Marketable Title Act?
To limit the relevant chain of title to a specified period (22-50 years) to extinguish old title defects automatically.
120
Is a person who takes by will a bona fide purchaser for value?
No, they are not protected by the recording act.
121
What is a general principle of nuisance?
No person may use their own land in an unreasonable manner that substantially lessens another person’s use and enjoyment of their own land.
122
What constitutes a private nuisance?
Substantial interference with private rights to use and enjoy land due to intentional and unreasonable conduct or unintentional conduct that is negligent, reckless, or inherently dangerous.
123
What are the types of conduct leading to intentional nuisance?
1) Intentional interference 2) Unreasonable conduct (balancing harm and social utility, uncompensated harm, substantial harm threshold).
124
What is a public nuisance?
Affects rights held in common by the public rather than just private rights of land held by landowners.
125
What are the remedies for nuisances?
1) No nuisance found - continue activity. 2) Nuisance found - injunctive relief. 3) Nuisance found - allow nuisance to continue with damages. 4) No nuisance but stop nuisance use and award damages.
126
What distinguishes a covenant from an equitable servitude?
Covenants seek money damages; equitable servitudes seek injunctions.
127
What is an easement?
A grant of non-possessory property interest that entitles its holder to some limited use or enjoyment of another’s land.
128
What is the difference between a servient estate and a dominant estate?
Servient estate bears the burden of the easement; dominant estate derives benefit from the easement.
129
What is an affirmative easement?
Gives its holder the right to do something on another’s land.
130
What are the categories for negative easements?
LASS: Light, Air, Support, and Stream water from an artificial flow.
131
What are the five ways to create an affirmative easement?
PINGE: Prescription, Implication, Necessity, Grant, Estoppel.
132
What is the scope of an easement determined by?
The terms or conditions that created it, reflecting the parties' intentions.
133
What can terminate an easement?
1) Express written release. 2) Merger doctrine. 3) Prescription. 4) Condemnation. 5) Alteration/destruction of easement. 6) Abandonment. 7) Cessation of purpose.
134
What is a restrictive covenant?
A promise to refrain from doing something on the land.
135
What is an affirmative covenant?
A promise to use land in a specified fashion.
136
What terminates a necessity easement?
When there is no longer a strict necessity
## Footnote
Necessity easements are created for access or utility purposes and end when the need is gone.
137
What is the difference between a covenant and an equitable servitude?
Covenants seek money damages, while equitable servitudes seek injunctions
## Footnote
This distinction helps in determining the type of relief sought in legal disputes.
138
Define restrictive covenant.
A promise to refrain from doing something on land
## Footnote
Examples include promises not to build or to keep pets.
139
What is an affirmative covenant?
A promise to use land in a specified fashion
## Footnote
This can include maintaining property or using it for specific purposes.
140
What is required for a covenant to run with the land at law?
It must be capable of binding successors to original promising parties
## Footnote
This includes horizontal and vertical privity.
141
What is horizontal privity?
It refers to the relationship between the original parties that needs to be a succession of estate
## Footnote
Examples include grantor-grantee or landlord-tenant relationships.
142
What is vertical privity?
A non-hostile nexus between the original promisor and the successor
## Footnote
This is essential for the burden of the covenant to run with the land.
143
List the elements of the two-part test to decide if a covenant is enforceable.
* Writing
* Intent
* Touch and concern the land
* Horizontal and vertical privity
* Notice
## Footnote
The acronym used to remember these is WITHN.
144
What does the acronym WITV stand for regarding the benefitted parcel?
* Writing
* Intent
* Touch and concern the land
* Vertical privity
## Footnote
This is used to determine if the benefit of the covenant runs with the land.
145
Define equitable servitude.
A promise regarding land that equity will enforce against successors
## Footnote
It is related to injunctive relief.
146
What is needed to enforce an equitable servitude?
* Writing
* Intent
* Touch and concern
* Notice
## Footnote
Privity is not required to bind successors in this case.
147
What is the common scheme doctrine?
It implies equitable servitude when there is a subdivision
## Footnote
This doctrine helps enforce restrictions within a development.
148
What are the three forms of notice under the common scheme doctrine?
* Actual notice
* Inquiry notice
* Record notice
## Footnote
These forms ensure that buyers are aware of restrictions.
149
List the ways a covenant can be terminated.
* Express written release
* Expiration by its terms
* Merger
* Acquiescence
* Abandonment
* Unclean hands
* Laches
* Estoppel
* Eminent domain
* Changed conditions
## Footnote
Each of these can affect the enforceability of covenants.
150
What are CC&Rs?
Covenants, conditions, and restrictions created by the association
## Footnote
These are recorded in the master deed of condominiums and bind all occupants.
151
What is the business judgment rule?
Court should defer to co-op board's determination if acting for the purpose of the co-op, within authority, and in good faith
## Footnote
This rule applies to the decisions made by co-op boards regarding covenants.
152
What is the purpose of zoning?
To regulate land use for the protection of general health, safety, and welfare
## Footnote
Zoning is an inherent power of the state through its police powers.
153
What is cumulative zoning?
Land uses are arranged in a spectrum from highest to lowest, permitting all uses at the zoned level or higher
## Footnote
This allows for more flexibility in land use.
154
What is mutually exclusive zoning?
Permits only the uses designated by the particular zoning classification
## Footnote
This creates stricter limitations on land use.
155
What are the limits on zoning?
* U.S. Constitution
* Valid federal law
* Relevant state constitution
* State law
* Municipal rules
## Footnote
These factors constrain the power of municipalities in zoning decisions.
156
Define exclusionary zoning.
Zoning ordinances that exclude unwanted people, making it economically impossible for poor or minority communities to live in the area
## Footnote
This practice is considered unconstitutional.
157
What is the just compensation requirement in eminent domain?
The property owner is entitled to the fair market value of the property taken
## Footnote
This is mandated by the takings clause in the Constitution.
158
What are explicit takings?
Overt acts of governmental condemnation
## Footnote
This involves direct governmental actions to take property.
159
What are implicit takings?
When the government has not directly condemned the property but may have taken it nevertheless
## Footnote
These are less obvious forms of taking that still require compensation.
160
What is the nuisance abatement rule?
If a government regulates property to abate activities that are common law nuisances, there is no taking
## Footnote
This allows for regulations without compensation.
161
What is the loss of economically viable use rule?
If a government regulation leaves the owner with no economically viable use of all their property, a taking has occurred
## Footnote
This rule is established in the Lucas case.
162
What are Transferrable Development Rights (TDRs)?
The right to build up (air rights) transferred from one property to another nearby property
## Footnote
TDRs are used to manage development density and preserve landmarks.
163
What do TDRs count towards in calculating compensation?
Just compensation provided
## Footnote
TDRs refer to Transfer of Development Rights.
164
What is the limitation on building height for the landmark parcel?
One story
## Footnote
The landmark status prevents construction above the terminal level.
165
What can be done with the 19 stories from the landmark parcel?
Sell them to build on another site
## Footnote
This allows for development elsewhere despite restrictions on the landmark parcel.
166
What are the two categories of compensation in Takings Law?
Compensation Required and Compensation NOT Required
## Footnote
These categories help determine when compensation is necessary for takings.
167
What is a per se rule in the context of Takings Law?
A permanent physical occupation (Loretto) or harm prevention (Hadacheck)
## Footnote
Per se rules automatically require compensation.
168
What is required for compensation under the 'Interference with Existing Use' category?
Ad hoc balancing test from Penn Central
## Footnote
This test assesses whether a taking has occurred based on specific circumstances.
169
What initiates eminent domain?
The government
## Footnote
Eminent domain allows the government to take private property for public use.
170
What is the definition of 'taking' in this context?
Initiating a claim for damages due to a taking
## Footnote
This involves asserting that compensation is owed for the loss of property.
171
Who is not considered a bona fide purchaser for value?
A person who takes by will
## Footnote
This means they lack protection under the recording act.
172
What prevails over the will provision in case of unrecorded deeds?
Unrecorded deeds from the decedent
## Footnote
These deeds have priority over the will's terms.
173
Can a person who takes by will transfer title to a bona fide purchaser?
Yes, they may convey better title
## Footnote
This can happen despite having a lesser title themselves.
