Spring Semester Final Study Guide Flashcards

Question

Inter vivos gifts of personal property

Answer 1

refer to gifts that are made while the donor is alive.

Answer 2

1) intent: did the owner intent to make a gift? Did they intend to make it during life or death? 2) Delivery: was there actual delivery/physical transfer? was there a transfer of some object that gives access to the gift/constructive delivery? 3) Acceptance: this is presumed so long as the object has some value. (this element is rarely in dispute over gifts). Once all 3 elements are met, then a typical inter vivos gift becomes irrevocable.

Answer 3

These are gifts made in anticipation of death but then are revocable if the grantor survives.

Answer 4

1) actual: actual delivery involves an actual physical transfer of the object from the donor to the donee 2) constructive: involves the transfer of some object, usually a key, that will give access to the property that is the subject of the gift. constructive delivery might not be enough to establish a valid gift. 3) symbolic: involves the transfer of a written document that evidences intent to make a gift of personal property.

Answer 5

A life estate lasts for the present interest holder's life and expires at the present interest holder's death.

Answer 6

Adverse possession is when someone possesses another's property while that person is unaware or does nothing about it. Adverse possession is the product of the statute of limitation, which is the legal deadline for filing a claim in court. When an adverse possessor first entered your property, you could have brought an action for trespass or ejectment to kick the person off your land. If enough time has passed, the statute of limitations might have run on your action against the adverse possessor. Since you cannot bring an action to get the adverse possessor off your property, title passes from you to the adverse possessor.

Answer 7

O - Open and notorious: to put an attentive owner on notice C- continuous for the statutory period E- exclusive (adverse possessor does not share the property with the public or owner) A- actual entry (physical entry on the land which title relates back to) N- non-permissive (not licensed and under a "claim or right")

Answer 8

if the adverse possessor is in privity (on opposite sides of a contract) with the prior adverse possessor they can tack on the prior possessor's time of possession onto her own to satisfy the statutory period. There needs to have been a voluntary transfer of possession between the previous adverse possessor and the current adverse possessor. Some courts such as the trial court in Howard v Kunto require a transfer of an estate for privity and transfer of possession alone would not qualify.

Answer 9

The objective standards hold that the adverse possessor's state of mind is irrelevant. The good faith standard requires that the adverse possessor honestly believe that the adverse possessor owned the property. The bad faith or aggressive trespasser standard requires that the adverse possessor know the property was owned by someone else.

Answer 10

To find certainty in who is the owner.

Answer 11

Legal title to property gives the owner constructive possession of that property. Actual possession typically trumps constructive possession in adverse possession cases. Color of title refers to a circumstance where the adverse possessor takes possession in reliance on some kind of written instrument that appears to give title to that property, but that is defective for some reason.

Answer 12

A defective document (typically a defective deed) gives the adverse possessor color of title but does not give them actual title. The benefit of color of title is that it gives the adverse possessor constructive possession of all of the property described by the document. As a result, the adverse possessor may obtain title to all of the property described by the document, not just the property actually possessed by the adverse possessor.

Answer 13

In jurisdictions that recognize constructive adverse possession, the adverse possessor's constructive possession under color of title will trump the owner's constructive possession as the actual title holder of the property. This doctrine serves the purpose of cleansing title on behalf of the adverse possessor in cases where the owner of the land is not in possession.

Answer 14

In many states, the statute of limitations clock for adverse possession does not run against the owner of the property if the owner is a minor, is mentally incompetent, or is imprisoned. We typically call these categories disabilities, because a person falling into any of these categories would be disabled from asserting her legal rights in a timely fashion.

Answer 15

1) statute of limitations is typically 10-20 years for adverse possession, and then 5-10 years after removal of the disability. Whichever is longer. 2) if the owner was not disabled at the time the adverse possessor entered, then the owner will not get the benefit of the disabilities period 3) owner cannot tack on two disabilities

Answer 16

there is a constitutional right to exclusive enjoyment of one's own property for any purpose which does not invade the rights of another person. (ex. migrant farmworker case, State v Shack)

Answer 17

The traditional account of the property right to exclude that emphasizes a solitary, isolated individual who excludes everyone from his land. It’s not very practical as many do not want to be in complete solitude. Hermit’s land can be invaded for necessity reasons of trespass. Jacques v Steenberg Homes demonstrates that punitive damages can be awarded in instances of trespass.

Answer 18

The landowners have the right to discriminate among various parties, permitting some to enter or use the land while keeping others off the property entirely. Owners must exercise discretion as to who can utilize the resource, and the criteria for exclusion need not be transparent to those seeking admission.

Answer 19

An exclusionary vibes approach involves the landowner's communication to potential entrants about the character of the community's inhabitants. Such communication tells potential entrants that certain people may not feel welcome if they enter the community in question, because they will not share certain affinities with existing or future residents. An exclusionary vibe may act as an effective bluff that prevents some potential entrants who are targeted for exclusion from moving into a community.

Answer 20

An exclusionary amenity is a common amenity that is embedded in a residential community at least in part because willingness to pay for the amenity functions as a proxy for some desired characteristic. It is a collective resource that provokes a polarizing response among people who are considering purchasing a home or renting an apartment in a particular community. Ex: golf course communities & catholic university.

Answer 21

An interest that gives the owner a present right of possession (or in some cases use) of the land. These are also called estates in land.

Answer 22

An interest that gives the owner a future right of possession (or use) of the land. A future interest exists at the time it is created.

Answer 23

Under the bad faith standard, a mistaken possession won't qualify as adverse under a claim of right since the bad faith standard requires that the adverse possessor intentionally enter the property with "bad faith intentions." The good faith standard or objective standard does allow adverse possession through a good faith mistake. [add onto this rule].

Answer 24

If the adverse possessor enters after ownership has been split into present and future interests, then the statute of limitations doesn't run against a future interest holder until that person's interest becomes possessory.

Answer 25

an interest that is unlimited in duration and is the closest thing that the U.S legal system has to absolute ownership of land. Ownership of land in fee simple absolute is ownership forever.

Answer 26

is an interest that has a duration messed by a human life. It is created by the language "to A for life." A life estate is always accompanied by a future interest. If the future interest is created in someone other than the grantor, it typically will be a remainder.

Answer 27

Interests that will terminate on the happening of an uncertain event. There are three types of defeasible fee simple interests: 1) fee simple determinable 2) fee simple subject to condition subsequent 3) fee simple subject to executory limitation

Answer 28

1) Fee simple determinable is created if the defeasible language is phrased in terms of duration, such as "so long as," "until," or "while." 2) It gives the grantor a possibility of reverter. The triggering event automatically ends the fee simple estate and reverts ownership to the grantor. 3) If the grantor/owner does not exercise their rights, they could be at risk of losing the property to adverse possession. The clock for SOL would start ticking immediately upon violation of the condition.

Answer 29

fee simple subject to condition subsequent is created if the defeasible language is phrased in terms of conditions, such as "but if," "on the condition that," or "provided that." It gives the grantor right of entry. The triggering event does not automatically end the fee simple estate. Rather, even after the triggering event, ownership will remain with the grantee unless or until the grantor takes some additional step to reclaim ownership. Adverse possession clock would not start ticking automatically but there is not an unlimited time in which the grantor has to exercise their rights of possession. Jurisdictions have different rules regarding this.

Answer 30

if the granting language is ambiguous, courts favor fee simple subject to condition subsequent because they disfavor automatic termination of an interest.

Answer 31

Is created when the accompanying future interest is created in someone other than the original grantor. The future interest is held in a third party. There is no distinction made between using durational language ("so long as") or conditional language.

Answer 32

Executory Interest: is a future interest created in a grantee that will cut short or divest (take away) the preceding interest.

Answer 33

any future interest created in the grantor that is not a possibility of reverter or right of entry. A reversion can be understood as the portion of the grantor's interest that the grantor retains after transferring an interest that is of limited or potentially limited duration.

Answer 34

A future interest created in a grantee that will become possessory, if at all, on the natural end of the preceding interest.

Answer 35

A remainder is vested if it is both in an ascertained person and not subject to a condition precedent other than the natural end of the preceding estate.

Answer 36

in this context, an ascertained person is a specific person that is known. Whereas unascertained means that the person that is to have the future interest is not known and could be a number of different people.

Answer 37

1) indefeasibly vested remainder: an interest that is certain to become possessory in the future. 2) vested remainder in an open class: an interest that is held by an open class of people. 3) vested remainder subject to divestment: a vested remainder that may be divested by an executory interest before it becomes possessory.

Answer 38

a remainder is contingent if it is either in an unascertained person or subject to a condition precedent other than the natural end of the preceding estate. Contingent remainders can become vested over time.

Answer 39

where the remainder will either go to one party or another depending on a condition. (a remainder keeps its name even if it is conveyed back to the original grantor)

Answer 40

an estate that is conveyed for a specific period of time.

Answer 41

Heirs refer to people that inherit property after someone's death and is different than simply saying one's children.

Answer 42

No interest [subject to the rule] is good unless it must vest [in a closed class], if at all, no later than 21 years after some life in being at the creation of the interest."

Answer 43

If a contingent remainder, executory interest, or vested remainder in an open class does not satisfy the rule, they are void from the time of creation. It is as if they never existed. If an interest violates the rule, we simply cross it out of the conveyance.

Answer 44

For contingent remainders and executory interests, this means that the contingencies reflected in the interest must resolve themselves one way or the other within the period stated by the rule. They must vest or fail within the period; it is not about when they might become possessory.

Answer 45

The time period is no later than 21 years after some life in being at the creation of the interest. A life in being can be understood as a person who was alive when the interest was created. The perpetuities period ends 21 years after the death of the last life in being. Interests subject to the rule that do not vest in a closed class or fail within this time period are void.

Answer 46

1) wait and see approach 2) uniform statutory rule against perpetuities 3) elimination of application to trusts 4) outright abolition of the rule

Answer 47

judges the validity of interests under the rule based on facts as they actually occur, rather than speculating on what might happen.

Answer 48

under USRAP, an interest is valid if it either (a) satisfies the common-law rule or (b) vests or fails within 90 years.

Answer 49

a number of states have abolished the application of the rule of perpetuities to property held in trusts

Answer 50

An increasing number of states have abolished the rule against perpetuities outright.

Answer 51

This doctrine can destroy contingent remainders to create a reversion in fee simple absolute. The operation of this doctrine therefore rewrites conveyances, promoting the alienability of property.

Answer 52

Another rule that promotes alienability by destroying a contingent remainder created in a person's heirs. The rule merges someone's life estate with their heir's contingent remainder interest to create a fee simple absolute interest for the person who had the life estate.

Answer 53

This rule that has largely been abolished, destroys contingent remainders to aid alienability by reducing the number of interests and eliminating the need to worry about the resolution of the contingency.

Answer 54

Under this principle, we have a fixed number of property interests. A grantor cannot intentionally or inadvertently create a new property interest by using creative language. When a conveyance is ambiguous, we need to fit the interests into our existing categories.

Answer 55

1) conveyances should be interpreted to best achieve the intent of the grantor 2) conveyances should be interpreted to favor a fee simple absolute 3) conveyances in wills should be interpreted to avoid partial intestacy. (it is reasonable to presume a person intended to give away all of their assets in their will) 4) conveyances should be interpreted to favor the free alienability of property. 5) conveyances should be interpreted to favor a fe simple subject to condition subsequent over a fee simple determinable 6) conveyances should be interpreted to favor vested interests and disfavor contingent interests 7) documents should be read as a whole (should not construe provisions in a way that contradict other provisions).

Answer 56

in a trust, the trustee is the legal owner of the assets held in the trust. The beneficiaries' interest is superior to the trustee's interest. The trustee holds legal ownership for the benefit of the beneficiaries and owes fiduciary duties to them.

Answer 57

when future interests are involves, creating a trust should be the default rule, and you should deviate from this default rule only if you have good reason to do so.

Answer 58

This law deals with the relationship between the present and future interest holders. There is an obligation of the present interest holder to leave the land in an essentially unchanged condition. If a present interest holder breaches this obligation, the future interest holder may bring a claim for waste against the present interest holder.

Answer 59

involves a voluntary act by the present interest holder that damages the property

Answer 60

permissible waste involves the failure of the present interest holder to exercise reasonable care to protect and maintain the property. It is a manner of negligence, rather than an affirmative intentional act. Failure to eject an adverse possessor may also constitute permissible waste. The duty to maintain and pay taxes is limited to the fair rental value of the property.

Answer 61

involves a voluntary act by the present interest holder that increases the value of the property.

Answer 62

Multiple people can own a property interest at the same time. The types of concurrent interests are: 1) tenancy in common 2) joint tenancy 3) tenancy by the entirety

Answer 63

this is the default concurrent interest. There is no limit to the number of people who can be tenants in common. Tenants in common need not have equal shares, however, each tenant has the right to possess and use the entire property.

Answer 64

Any any time and for any reason, any tenant in common can petition a court for partition of the co-owned property. The partition process beings when one or more co-tenants bring an equitable action for partition in court. In almost all circumstances the court will grant the request for partition and at the end of the process the co-tenancy relationship will be terminated. There is partition in kind and partition by sale.

Answer 65

involves a physical division of the property between the former co-tenants. There is a strong legal presumption in favor of partition in kind. However, there are many circumstances where partition in kind is impossible or impracticable.

Answer 66

Involves a sale of the property at auction, with the proceeds divided among the co-tenants according to their shares. Partition in sale is more common due to the many circumstances where partition in kind does not make sense.

Answer 67

the existence of a right of survivorship is the only practical difference between a tenancy in common and a joint tenancy. The right of survivorship means that when one joint tenant dies, the other joint tenant becomes the sole owner.

Answer 68

joint tenancies require clear language of conveyance for creation. The language needed to create a joint tenancy varies from jurisdiction. Joint tenancies also require certain "unities" 1) joint tenants must acquire their interests at the same time 2) JTS must acquire title from the same instrument 3) JTS must have equal shares in the property 4) JTS must have equal rights of possession and use.

Answer 69

severance is the legal term for when someone in a joint tenancy relationship gives their interest to another person and it severs the right of survivorship aspect of the joint tenancy. If a joint tenancy is severed, the JT relationship is terminated. Any JT can unilaterally sever the JT by conveying their interest to a third party. However, it only destroys it for the relationship of the person who severed it. If A, B, and C have a joint tenancy and A conveys his interest to D, then B and C and still JTs and A is a tenant in common with them.

Answer 70

The tenancy by the entirety is a concurrent interest between spouses that in most respects resembles a joint tenancy. It will typically require the same unities as a joint tenancy, plus the additional requirement that the couple be married when they receive the interest. This interest is best created with a conveyance “to spouse 1 and spouse 2 as tenants by the entirety.” A tenancy by the entirety also has a right of survivorship. However, spouses cannot unilaterally convey their interests.

Answer 71

1) The spouses may together transfer property to another person 2) One spouse may die, with the right of survivorship operating to give sole ownership to the surviving spouse 3) The spouses may obtain a decree of divorce which will sever the tenancy by the entirety by ending the marriage.

Answer 72

It views property as being separately owned by the spouse who owned the property before marriage or obtained it during marriage. It provides that each spouse is individually liable for separate debts. Property obtained by one spouse is owned solely by that spouse. During marriage, each spouse will continue to own property separately unless they take action to own it jointly. Creditors cannot touch a spouse’s individual assets in a separate property system to satisfy the debt of the other spouse.

Answer 73

When spouses divorce, separate property states generally provide for equitable distribution of the property owned by each of the spouses. Equitable distribution is limited to property acquired during marriage in almost all separate property states, although some will also include property acquired before the marriage. Factors the court considers in determining equitable distribution are: 1) length of marriage (shorter marriages = less property redistribution) 2) each spouses income during marriage 3) the lifestyle shared 4) whether support is needed for one spouse to obtain marketable skills so that support will not be needed in the future.

Answer 74

When one spouse dies the marital property rights are protected upon one spouse’s death in separate property states by elective share statutes. Elective share statutes give the surviving spouse the right to claim a significant share of the decedent spouse’s estate regardless of the provisions of the decedent spouse’s will.

Answer 75

The community property system at its core treats earnings of each spouse during marriage as being owned equally in undivided shares by both spouses. Property owned before marriage and property acquired during marriage by inheritance or by gift is treated as separate property. Under the systems in most states, debt occurring before marriage is generally treated as separate debt. Debt incurred by one spouse before marriage cannot be satisfied by the other spouse’s separate property. Community property can be used to satisfy debt to the extent the community property can be attributable to the earning efforts of the debtor.

Answer 76

When spouses divorce there are some discrepancies on how property is divided, however, in some states the community property is divided equally on divorce while in other states principles of equitable distribution similar to those used in separate property states are used.

Answer 77

If a spouse dies without a will, all the community property goes to the surviving spouse, however, if the spouse has a will they can devise as much of their share of the community property to whoever.

Answer 78

Applies only at death & is property that is not community property and that was before now or after now acquired: (a) by the decedent while domiciled elsewhere and that would have been the community property… had the decedent been domiciled in this state at the time of its acquisition; or (b) in derivation or in exchange for [any such property]... “Upon the death of any person domiciled in this state, ½ of any quasi-community property shall belong to the surviving spouse..” This idea protects the surviving spouse.

Answer 79

When couples move the status of their property does not change because once the property has been characterized as either separate property or community property, it will keep that characterization if the spouses move to another jurisdiction with different rules. When a spouse dies, the law of that decedent’s domicile at death governs the disposition of personal property. The law where land is located will govern the disposition of land, regardless of the domicile of the decedent. If you move from a separate property jurisdiction to a community property jurisdiction, the protection of elective share disappears with regard to the property accumulated in the separate property state.

Answer 80

American rule is that passive appreciation is separate property Spanish rule is that passive appreciation is community property

Answer 81

Tenant in possession and tenant out of possession are proportionately responsible for the necessary carrying charges. However, if tenant in possession is seeking contribution, they have to account for the fair rental value and subtract what they could have been paying in rent.

Answer 82

If you are a co-tenant and only rent your share, you would not be liable to the other co-tenant for rent. However, if you rent the entire property and the third party does not expect to share the property with the other co-tenants, you would need to account to the other co-tenants for rent that you collected. However, if the co-tenant was ousted, you would have to account for the co-tenants share of the fair rental value of the property. This rule protects the ousted co-tenant from the possibility that the co-tenant in possession might collude with a third party to rent the property for less than it is worth.

Answer 83

the legal significance of ouster is that absent outster, a tenant in possession does not owe rent. If there is ouster then the occupying co-tenant will owe rent and it also determines the adverse possession timeline by starting the clock for statute of limitations. What constitutes outster?: the tenant out of possession has to demand access to the property that is denied by the tenant in possession. Simply sending a letter requesting that the tenant in possession either get out or pay rent is insufficient. You have to try to enter and be prohibited. There is a constructive ouster doctrine apart from the majority rule where circumstances like abuse can constitute constructive ouster.

Answer 84

One co-tenant who bears more than her share of the costs of necessary repairs to the property generally has the right to receive contribution from the other co-tenants. The same rule applies to taxes and mortgage payments - if one co-tenant pays more than her share, she is entitled to contribution from the other co-tenants. However, if the co-tenant pays for a voluntary improvement to the property, that co-tenant cannot make an independent claim for contribution from her co-tenants. However, if the property is later sold or partitioned, the co-tenant can obtain some credit for the improvement.

Answer 85

the rules that govern married couples do not apply for unmarried couples. However, couples may choose to enter into a legal agreement governing their relationship.

Answer 86

A lease is a conveyance of an interest in real property. When a landlord leases real property to a tenant, the landlord is conveying a present interest in real property to the tenant. The landlord retains a reversion that becomes possessory when the leasehold interest expires. A lease is also a contract. Part of a lease contains a conveyance of a property interest, however, the rest contains contractual terms that govern a host of issues in the landlord-tenant relationship.

Answer 87

1) the term of years 2) the periodic tenancy 3) the tenancy at will

Answer 88

a leasehold that has a duration measured by a fixed period of time. A lease satisfies this requirement if the duration can be reduced to fixed calendar dates. A term of years leasehold expires when the period establishing the leasehold ends.

Answer 89

this is a type of term of years leasehold where people fix the term for a certain amount of years or like a life estate.

Answer 90

lasts for a fixed period of time and then automatically renews for successive time periods unless the party gives notice of termination. It therefore has no specific ending date. The most common types are month-to-month and year-to-year. If a lease fails to include the duration of the lease but indicates how often rent is due, an implied periodic tenancy is created. For periodic tenancies, there needs to be adequate notice (this can differ depending on circumstances) given to terminate the lease. (one full period in advance or 6 months is the cap is typically the rule we follow)

Answer 91

a tenancy at will is a tenancy that is “at the will” of the parties. The landlord and tenant agree that the tenant may retain possession for an unspecified amount of time. Either party can end the tenancy at any time. Many states have statutes that set minimum time periods for notice, often based on the time of rental payments. If a state does not set a minimum time, either party can terminate a tenancy at will without notice. If a tenancy does not qualify as a term of years or periodic tenancy, then it will automatically be a tenancy at will.

Answer 92

Statute of frauds requires that a lease for a term of more than 3 years must be in writing. A written lease must contain these essential terms: 1) The names of the parties 2) The identity of the property to be leased 3) The duration of the lease 3) The amount of rent 4) And the signatures of both parties.

Answer 93

there are more protections for residential tenants ??? [look into this one more]

Answer 94

lease gives someone the same rights as an owner whereas license allows someone to use a space but many rights are still reserved by the landlord/owner.

Answer 95

If the lease does not expressly address the landlord’s obligation to deliver possession to the tenant, the common-law rules on delivery of possession would apply. 1) Majority Rule/English Rule requires landlords to deliver actual physical possession to tenants. It also places the burden on the landlord to deliver physical possession. (it is the landlord's responsibility to evict the old tenant if they stay past their lease period and make sure the place is ready for the new tenant.) 2) The American Rule/Minority Rule is followed by some states. Under the rule, the landlord is only obligated to provide the tenant with the legal right of possession. They have no obligation to deliver actual physical possession. The obligation to deliver is satisfied if the landlord delivers a valid lease to the tenant. If a new tenant showed up and found that the prior tenant had wrongfully stayed past the end of the lease, the new tenant also would be liable to the landlord for the rent under the lease, even though the old tenant remained in possession. (it is the new tenant's right to evict the old tenant)

Answer 96

In the FHA context, the plaintiff has the initial burden to make a prima facie case that: (a) the plaintiff is a member of a protected class and (b) the plaintiff was denied housing or otherwise treated in a manner that falls within the scope of the FHA. If the plaintiff does so, the landlord then has the burden of showing that there was a non-discriminatory business justification for the landlord’s actions. If the landlord meets this requirement, the burden shifts back to the plaintiff to show that the asserted non-discriminatory justification was a mere pretext.

Answer 97

Step 1: the potential residential tenant must be part of a protected class (determines if the case is applicable to the FHA) Step 2: Are there any applicable exclusions? (3603 b1 & b2 outline exceptions) also 3607 Step 3: Do we have a discriminatory act? Has there been some conduct by the landlord that is prohibited under the FHA? 3604 a-f. Step 4: Is there a violation under some other law?

Answer 98

The main difference between the CRA and the FHA is that CRA only applies to race. The CRA also does not have exceptions. Therefore, something that is allowed under an exception under the FHA could still be in violation of the CRA.

Answer 99

A tenant has a quiet use and enjoyment of the property if the tenant is able to use the property without interference and if no other person is asserting a right to be able to use or possess the property. Many leases include an express covenant of quiet enjoyment. However, it can be waived. If a lease is silent on this issue, courts will read an implied covenant of quiet enjoyment into the lease.

Answer 100

In this case, the landlord may be deemed to have constructively evicted the tenant. If a tenant can prove constructive eviction, the tenant can be relieved of the obligation to pay rent. The scope of constructive eviction has historically been narrow and focused on direct acts of the landlord to interfere with the tenant's use and possession of the premises, however, the scope has since expanded.

Answer 101

A constructive eviction occurs when the tenant leaves the leased premises due to conduct by the landlord which materially interferes with the tenant’s beneficial use of the premises. Tenants have to give landlords notice of the defect and give them a reasonable time to remedy it before moving out and claiming constructive eviction. Both action and lack of action can constitute “conduct” by the landlord which amounts to a constructive eviction. There must be a substantial interference of the tenant’s use and possession of the leased premises.

Answer 102

When it comes to whether something was a substantial interference, jurisdictions typically ask if a reasonable person would view it as an interference in the tenant’s ability to use the premises for the intended purpose of the lease.

Answer 103

A tenant who wants to bring a quiet enjoyment claim has two choices: 1) Move out of the premises and claim constructive eviction The tenant can stop paying rent, though the tenant will be liable for back rent if she loses on the constructive eviction claim 2) The tenant can stay on the premises and sue for damages They will still be obligated to pay rent, though if the tenant wins, the amount of damages might exceed the amount of rent due for the relevant period.

Answer 104

This doctrine is unwaivable and only applies to residential leases. Breaches of implied warranty of merchantability tend to focus on 1) Violations of housing codes 2) Conditions harmful to the health of the tenant Rule from Hilder v St. Peter: In determining whether there has been a breach of the implied warranty of habitability, courts should inquire whether the claimed defect has an impact on the safety or health of the tenant. The measure of damages shall be the difference between the value of the dwelling as warranted and the value of the dwelling as it exists in its defective condition. When a landlord breaches the implied warranty of habitability, the tenant may withhold future rent, and may also seek damages in the amount of rent previously paid.

Answer 105

1) The duty to pay rent This duty usually arises from an express covenant in the lease. 2) The duty to not use the premises for illegal purposes 3) The duty to not commit waste The same waste principles that we discussed in the context of life estates apply in the context of a lease. Most leases include express prohibitions on waste, so a waste dispute between a landlord and a tenant typically will turn more of the language of the lease than on the common law of waste. Landlords can use the security deposit to cover the cost of the damage and can also sue to recover for damages exceeding the security deposit.

Answer 106

If the tenant fails to pay rent, the landlord has two options: Continue with the relationship and sue for back rent End the relationship and sue to evict the tenant and recover possession of the premises. All states allow landlord to recover possession if the tenant fails to pay rent. In most jurisdictions, the landlord must bring a legal proceeding to evict the tenant.

Answer 107

1) assignment: in an assignment the original tenant transfers all of her rights under the lease to the new tenant. 2) sublease: in a sublease, the original tenant transfers something less than all of her rights to the new tenant. In categorizing them, Courts tend to look at the substance of the transfer and not what the parties themselves label it to decide whether a transfer is an assignment or sublease.

Answer 108

Two people are in privity if they are parties to a certain type of transaction. Parties are in privity of contract if they are on opposite sides of a contract. Parties are in privity of estate if they are on opposite sides of a real estate transaction. A lease is both a contract and real estate transaction. It does not matter whether a party is in privity of contract, privity of estate, or both. As long as there is a privity relationship, the parties can directly exercise legal interests with each other. The lack of privity relationships in a sublease makes the exercise of legal interest much harder.

Answer 109

If you are exercising rights under privity of contract then you are suing under the rights of the lease. With the privity of estate you are suing under the rights and obligations that are apart of property law. Things that relate to use and possession including the payment of rent can be sued for under privity of estate.

Answer 110

Assignments and subleases have different consequences for the privity relationships between the parties. For an assignment, there will be privity of estate between the original landlord and the new tenant, but there is no privity of contract. Privity of contract is only between the original landlord and the old tenant and then between the old tenant and the new tenant. For a sublease, there is neither privity of estate or privity of contract between the original landlord and the new tenant. There is just privity of contract between the original landlord and the old tenant and then between the old tenant and the new tenant. For privity of estate it is also just between the original landlord and the old tenant and then between the old tenant and the new tenant.

Answer 111

1) Pre-contract phase Where the drafting of the contract occurs. Signing the contract moves the parties from the pre-contract phase to the executory contract phase. 2) Executory contract phase Where the contract has been signed but performance of obligations has not yet occurred. 3) Post-closing phase After closing which is where the seller and buyer perform their obligations

Answer 112

1) Signing of the purchase and sale contract This is where the seller agrees to sell, and the buyer agrees to buy the subject real estate 2) Closing Where, among other things, the seller delivers title to the buyer, and the buyer delivers the purchase price to the seller.

Answer 113

In an open listing, the broker earns her commission by securing a ready, willing, and able buyer. The seller can list the property with other brokers, and if someone else secures the buyer, the broker in an open listing will not get paid anything

Answer 114

In an exclusive agency, the seller agrees that the broker will be the only real estate professional allowed to sell the property. If another broker finds a buyer, the broker in an exclusive agency agreement will still get paid a commission. If, however, the seller finds a buyer on her own, the broker in an exclusive agency agreement will not get paid a commission.

Answer 115

In an exclusive right to sell, the broker is the only person allowed to sell the property. The broker earns a commission regardless of who finds a buyer. The key difference between exclusive agency and exclusive right to sell is what happens if the seller finds a buyer on her own. In an exclusive agency, the broker does not get a commission in this circumstance.

Answer 116

1) Under the common law rule (still majority), if a broker finds a ready, willing, and able buyer, the broker is entitled to commission whether or not the deal closes. 2) Under the modern rule, (gaining ground) the deal needs to close for the broker to be entitled to commission.

Answer 117

1) agency law: the agent (broker/agent) owes fiduciary duties to the principal (typically the seller) 2) duty of care: do your job 3) duty to disclose: or is it keep confidential? duties, and to whom they are owed, can be altered by contract.

Answer 118

the listing is viewed as an invitation to subagency. That is, the listing is seen as an invitation by the listing broker to other brokers and agents to cooperate in the sale of the listed property.

Answer 119

At closing of a real estate transaction the contract disappears and the terms of the deed control. At closing, the promises of the contract merge into the deed. Therefore, if there is a problem with title, the buyer can only rely on the representations in the deed. The type of deed affects the right the buyer has regarding claims they can make against the seller.

Answer 120

Generally speaking, the less a promise has to do with title, the more likely it is to survive merger. Promises about the quality or physical condition of the property, for example, are often deemed to fall outside the scope of merger. Courts tend to be a bit erratic in their application of merger, and it is risky to assume in advance that a particular provision will be exempt from the doctrine.

Answer 121

1) Default allocation of risk established by the law in any jurisdiction. 2) Contractual allocation of risk. Contracts, deeds, and other legal documents can change the default allocations of risk. You can change the default rules by putting a provision in a contract. 3) Counterparty risk Is the risk that the counterparty will default on an obligation and will be unable to satisfy a court judgment of damages for that default You can allocate risk to another party but that only works as long as they have the money to back up that risk.

Answer 122

1) Title Risk: The buyer in a real estate transaction is faced with the risk that there will be problems with the title delivered by the seller. Three Primary Types of Title Problems a. Ownership b. Encumbrances c. Encroachments 2) physical condition risk: The buyer in a real estate transaction is faced with the possibility that there will be problems with the physical condition of the property being purchased.

Answer 123

These acts create a system of public land records, establish consequences for the failure to record a document, and establish priority between competing claims relating to the property. You can find the documents you are looking for by using the recording office's index.

Answer 124

1) name indexes: common in eastern states 2) tract indexes: common in western states The key difference with the types is that with parcel/tract indexes you can just look up the parcel number whereas with name indexes you have to look up a bunch of names. You typically have to look back at the title for 40-50 years. Most online records only show 32 years.

Answer 125

in race statute jurisdictions, the first person to record wins.

Answer 126

with a notice statute, subsequent purchasers or lenders will win so long as they had no notice of a prior unrecorded interest at the time they acquired their interest. Two things must happen: subsequent purchaser cannot know and the subsequent purchaser has to be a purchaser and give value (needs to be a bona fide purchaser). There is no race element to notice statutes.

Answer 127

combine both race and notice elements. To win under a race-notice statute, a subsequent interest holder must both (a) take the subsequent interest without notice of the prior interest and (b) record first.

Answer 128

under the shelter rule, if a person who would win under the applicable Recording Act conveys the property to another person, that other person (the conveyee) would also win under the recording act. The purpose of the shelter rule is to allow the winner under a recording act to convey the property.

Answer 129

1) actual notice: A person has actual notice of a fact if the person has been given notice of the fact 2) Record notice: Is notice that a person would obtain by performing a diligent record search. A person is on record notice of all recorded documents even if that person does not perform a title search. 3) Inquiry notice: Is notice of facts that would have been found if (a) a reasonable person under the circumstances would have inquired further into the facts, and (b) a person had performed a diligent inquiry into these circumstances. The obligation to defeat inquiry notice is to make a reasonable inquiry, not necessary to obtain all necessary facts. [rule from Harper v Paradise]

Answer 130

It has to do with public records and recording acts make it easy for people to trace the chain of title. They also help establish priority for competing claims. They incentivize a grantee to get their deed on record.

Answer 131

Mechanics liens often take priority not from the date of recording, but from the date visible construction began on the project. This means that a mechanics lien may get priority over another lien even though the other lien is recorded first. protect contractors and other people who do work improving property from nonpayment. If you hire a contractor to build a house on your property, and you fail to pay the contractor for work actually completed, then the contractor will be entitled to a mechanics’ lien on the property. Mechanics’ liens are primarily a product of statute and they do not require the consent or the agreement of the property owner to come into existence.

Answer 132

in a name-index system, some deeds might fall outside the chain of title even though they are properly recorded and these are called wild deeds. Even though they are protected, wild deeds are not given protection against subsequent purchasers of the property. [ask about this one in outline]

Answer 133

misspellings can cause problems in the recording context. The court has rejected the applicability of idem sonans [doctrine that says names don't need to be spelled correctly] in the recording context, holding that spelling is material to the indexing system. Attorneys must be precise with names when working with recorded documents.

Answer 134

The most common technical requirement is that the document being recorded is notarized. Failure to follow these technical requirements may result in the document as being deemed not recorded.

Answer 135

When a subdivision developer imposes covenants in most of the deeds to a subdivision, but not all and no "master covenants document is recorded. A court might still enforce the covenant as an equitable servitude.

Answer 136

a title that would not create reasonable doubts in a reasonable person or a title that is free from encumbrances, encroachments, and has no violations of local ordinances, or other things that might expose the buyer to future litigation issues. Title is unmarketable if: it exposes the buyer to the hazards of litigation. The presence of problems with ownership, encumbrance, or encroachment can all render a title unmarketable.

Answer 137

The buyer can typically back out of the contract without penalty.

Answer 138

So if the buyer discovers a title problem, and the seller can cure that problem before closing, then the buyer will be required to complete the transaction. Since many properties have encumbrances, many properties have unmarketable titles and this problem must be solved by having the buyer waive objections to certain title problems. The seller, for example, can disclose the existence of a set of covenants on the property, and the buyer could waive any marketable title objection to the covenants.

Answer 139

1) the seller must be the record owner of the property she purports to sell 2) the seller must have fee simple ownership without encumbrances or limitations of any kind (except per contract) 3) buyer will not be placed in a non-frivolous prospect of litigation over ownership. Legal Standard: would a reasonable person in buyer's position refuse to close if aware of the defect? If so, the title is not marketable.

Answer 140

Many municipal land use ordinances impose restrictions similar to covenants. However, in contrast to covenants, the general rule is that the mere existence of a land use ordinance does not render title unmarketable. However, violations of land use or other municipal ordinances would render the title unmarketable. This is because a violation of an ordinance can typically lead to the imposition of a lien by the local government, which would impact title.

Answer 141

in a general warranty deed, the seller provides a series of warranties to the buyer against all defects in title, regardless of when they arose, that existed at the time the deed was delivered.

Answer 142

In this one, the seller provides a series of warranties that are similar to those in a general warranty deed. However, the scope of the warranties is limited. The seller only warrants against defects that arose during the seller’s ownership of the property.

Answer 143

contain no warranties of title whatsoever

Answer 144

Present Covenants: 1) The covenant of seisin. The grantor promises that she owns the interest that she is conveying. 2) The covenant of right to convey. The grantor promises that she has the right to convey the interest. 3) The covenant against encumbrances. The grantor promises that there are no encumbrances on the property. Future Covenants: 4) The covenant of general warranty. The grantor promises to defend the grantee against lawful claims of title by another person and to compensate the grantee for any losses that result for such a claim. 5) The covenant of quiet enjoyment. The grantor promises that the grantee will have quiet enjoyment in their possession and ownership of the property. As a practical matter, this covenant is a duplicate of the covenant of general warranty. 6) The covenant of further assurances. The grantor promises to execute any document or take any similar steps, necessary to fix any title problems that later arise.

Answer 145

The SOL for present covenants starts to run from the time of conveyance, however, the SOL for future covenants starts to run only if and when they are breached in the future.

Answer 146

Insurance companies will issue policies that cover the insured against title risk. Policy holders typically pay a one-time premium at the time of closing. In return, the insurance company agrees to pay litigation costs and cover losses that result from title problems. You need to be very careful with any insurance policy to be sure that the coverage that you want is (a) listed in the Covered Risks section and (b) is not later taken back in the Exclusions From Coverage Section.

Answer 147

surveys and physical inspections of the property can each play a role in the mitigation of title risk. Surveys can identify encroachment and boundary issues and can identify discrepancies between the parties’ understanding of the property being conveyed and the legal description of the property in the deed. Surveys and physical inspections are part of the due diligence process and generally occur during the executory contract phase of a real estate transaction.

Answer 148

Many states have enacted laws that require sellers to disclose certain types of defects to buyers. These statutes are typically limited to residential transactions.

Answer 149

in a conventional closing, everything happens at once. All of the parties gather at the same place and same time, and execute the documents all at once. All of the money goes into the account of the person holding the closing, and this money is disbursed by the end of the closing. Of course, not everything literally happens at once, but everything happens in quick sequence as part of the same process, with all of the parties present.

Answer 150

In an escrow closing, the parties appoint an escrow agent to conduct the closing. The escrow agent holds the relevant documents and money and then disburses them to the appropriate party. Escrow relationships should always be created by written agreement. The agreement should give specific instructions to the escrow agent and should make it clear that the escrow agent is serving to facilitate the transaction and is not acting as the agent of one or other of the parties. The escrow relationship allows the steps of the closing to take place at different times.

Answer 151

a deed is a valid instrument for the transfer of real property. To be valid, a deed must (1) satisfy the Statute of Frauds and (2) be delivered to and accepted by the grantee. To satisfy the Statute of Frauds, a deed must: 1) Be in writing 2) State the essential terms of the conveyance - The identity of the grantor and the grantee - The legal description of the property - Contain words of conveyance indicating a transfer of the interest from the grantor to the grantee 3) Be signed by the grantor. It is often said that the delivery of a deed does not require the deed to be physically handed over.

Answer 152

A valid in praesenti conveyance requires (1) actual or constructive delivery of the deed to the grantee or to a third party and (2) an intention by the grantor to divest himself of the conveyed interest.

Answer 153

1) Recording system Title search, marketable title, recording acts 2) Deed warranties Merger doctrine, counterparty risk 3) Title insurance 4) Surveys and physical inspections 5) Seller disclosure laws Duty: prescribed forms, right to rescind

Answer 154

clauses such as this that may try to help a party escape liability do not bar misrepresentation/nondisclosure claims

Answer 155

personal property that is in some way attached to the premises. Dishwashers are often considered fixtures. Fixtures are considered part of the property and are transferred with the property.

Answer 156

Idea that there is an implied warranty regarding the quality of the property and that issues with physical condition of the property will fall out the scope of merger

Answer 157

In return for the loan of money, the borrower delivers to the lender: a) a promissory note b) a mortgage

Answer 158

the mortgage itself is a grant of security interest in the property from the borrower to the lender. This security interest allows the lender to foreclose on the property in the event the borrower fails to honor the promissory note. The note and the mortgage are linked by a statement in the note that says that is is secured by the mortgage.

Answer 159

under lien theory you don't have the right to take possession in the event of default or a missing monthly payment, but in title theory you do?

Answer 160

In jurisdictions that allow power of sale foreclosure, an alternative to a mortgage called a deed of trust is commonly used in real estate finance. In a deed of trust transaction, there are three parties to the transaction - the borrower, the lender, and the trustee. The borrower conveys title to the property to the trustee through an instrument called a deed of trust. The trustee is given the power to sell the property if the borrower defaults on the note. In most legal contexts, deeds of trust are treated identically to mortgages.

Answer 161

The loan transaction timeline: Due Diligence Phase - Lender commits to issue loan via loan commitment letter - Lender performs due diligence (non-title related) - Lender performs title search. Often combined with Borrower’s/Purchaser’s title search The Loan Transaction Timeline: Closing - Lender disburses money - Existing mortgage loan paid off - Documents (deed, mortgage/dot, and note) executed and delivered.

Answer 162

By foreclosing on the property, the lender/mortgagee forces a sale of the property and uses the proceeds from the sale to satisfy the obligation that the borrower/mortgagor has defaulted upon. There are two types of foreclosure: judicial and power of sale. Both methods result in the public sale of the foreclosed property.

Answer 163

The foreclosure process is initiated as a judicial proceeding and the foreclosure sale process is supervised by the court Essentially the lender files a lawsuit against the borrower and any junior interest holders seeking a judgment that foreclosure is justified. If successful, the lender or its agent gives notice of the sale and the sale is conducted by an auctioneer and the property is sold to the highest bidder. The main advantage of the judicial foreclosure process is that it provides due process protection and court supervision for property owners facing foreclosure. Its main disadvantage is that, like any judicial process, it can be slow and expensive.

Answer 164

The sale process is conducted by the lender. Deeds of trust are often popular in power of sale jurisdictions. There is no judicial involvement The main advantage of power of sale foreclosure is that it is relatively quick and inexpensive. The main disadvantage is that it lacks the process and fairness protections that are provided by judicial foreclosure.

Answer 165

a term in a loan document that will say if one ever defaults then the entire loan amount is immediately due.

Answer 166

One is considered “underwater” when home prices go down and the home is worth less than what you borrowed and if you sold it you wouldn’t get enough back to pay the lender. Sometimes lenders will accept a short sale even if it is short of what you owe. It is better than the alternative of foreclosure. Lender has to sign off on it and release the mortgage.

Answer 167

A surplus can occur if the sale in a foreclosure sale brings in more than enough money to pay off the lender and cover the expenses of foreclosure. If there is a surplus, then it goes to the owner/mortgagor.

Answer 168

A deficiency occurs if the foreclosure sale does not bring in enough money to pay off the lender/mortgagee. The deficiency is the difference between the amount owed and the foreclosure sale proceeds. In many jurisdictions, the lender/mortgagee can obtain a deficiency judgment against the borrower/mortgagor for the amount of the deficiency.

Answer 169

Some jurisdictions have anti-deficiency statutes that prohibit the lender/mortgagee from obtaining a deficiency judgment against the borrower/mortgagor. They typically only apply to residential mortgage transactions.

Answer 170

Transactions that are set up so that the lender is limited to the amount of collateral and the lender cannot obtain a judgment against the borrower for the remainder of the debt. In other words, the lender does not have recourse against the borrower individually. In anti-deficiency statutes, residential mortgages are non-recourse as a matter of law. However, transactions may also be made non-recourse by contract or corporate structure.

Answer 171

transactions where the lender does have the ability to go after the borrower individually in case of default.

Answer 172

It is not unusual for properties to sell at foreclosure for less than their fair market value. Generally, a court will only invalidate a foreclosure sale on price grounds if the sale price was grossly inadequate. The grossly inadequate standard is a demanding one. According to the restatement: a court is warranted in invalidating a sale where the price is less than 20 percent of fair market value and, absent other foreclosure defects, is usually not warranted in invalidating a sale the yields in excess of that amount.

Answer 173

In most real estate transactions, the existing mortgage loan will be paid off and the mortgage satisfied as part of the closing process. Sometimes, however, the parties will leave the loan and the mortgage in place.

Answer 174

1) If there are multiple interests secured to the property, the interest with the highest priority will get paid first from the proceeds from the foreclosure sale. 2) Interests that are junior to the interest that is being foreclosed upon are destroyed by the foreclosure process. Therefore, the purchaser in the foreclosure sale takes the property free and clear of the junior interests that have been terminated in the foreclosure process. 3) Foreclosure by junior interest has zero effect on the validity of a senior interest and ability to foreclose 4) Foreclosure eliminates or wipes out the mortgage being foreclosed on and all junior interests, but does not affect senior interest. [Important Rule for Priority]

Answer 175

Judgment lien: liens on someone that result from civil judgments. If a judgment lien is recorded first, the mortgage still takes priority. Mortgages with an after acquired property clause: Language in some other loan that is secured in any property you acquire after the loan.

Answer 176

An installment land contract is rent-to-own for real property. The seller effectively acts as the lender in the transaction. The buyer agrees to make regular payments to the seller over a period of time. In return, the seller agrees to convey title to the buyer once the final payment has been made. If the buyer defaults on the payments, then the seller can simply evict the buyer. There is no need to foreclose, because the seller remains the fee simple owner of the property until the final payment is made.

Answer 177

Easements and covenants both belong to a category of non-possessory interests in property called servitudes

Answer 178

an easement gives a party the right to physically enter and use the property of another

Answer 179

A license gives a party the revocable right to physically enter and use the property of another.

Answer 180

A profit gives a party the right to physically enter the property of another and remove certain resources.

Answer 181

a promise that is binding on both the present and subsequent owners of the property. Covenants that run with the land can be enforced in law as real covenants or in equity as equitable servitudes.

Answer 182

If the interest automatically transfers to subsequent owners of the land.

Answer 183

The dominant estate is the property that has the benefit of the servitude whereas the servient estate is burdened by the servitude.

Answer 184

The benefit of the servitude is appurtenant if it is tied up with a parcel of property. The benefit is in gross if it is not tied up with a parcel of property. With an in gross easement, there is no dominant estate. How to tell whether an easement is appurtenant or in gross: The granting clause may be clear. For example, if a grant of an easement expressly mentions the dominant estate, then the easement typically will be appurtenant. Or a grant might specifically say whether the easement is appurtenant or in gross.

Answer 185

an affirmative servitude entitles the holder of the benefit to engage in a positive use of the burdened property. A negative servitude prohibits the owner of the burdened property from using the burdened property in a particular way. (An example of negative servitude is a negative easement which allows the owner of the dominant parcel to prohibit the owner of the servient parcel from doing something. They are rare in our legal system.) One category of a negative easement that is common in our legal system is conservation easements. This is an easement that places restrictions on the development of the servient parcel. They prohibit or restrict the development on that land. They are the product of statutes.

Answer 186

an affirmative servitude entitles the holder of the benefit to engage in a positive use of the burdened property. A negative servitude prohibits the owner of the burdened property from using the burdened property in a particular way. (An example of negative servitude is a negative easement which allows the owner of the dominant parcel to prohibit the owner of the servient parcel from doing something. They are rare in our legal system.) One category of a negative easement that is common in our legal system is conservation easements. This is an easement that places restrictions on the development of the servient parcel. They prohibit or restrict the development on that land. They are the product of statutes.

Answer 187

When an instrument is silent or ambiguous as to an easement's location and dimensions, the easement is sometimes referred to as a "floating easement"

Answer 188

1) easements by prescription 2) easement by estoppel 3) easements implied by existing use 4) easements by necessity

Answer 189

1) Non permissive 2) Acquisition of an easement by prescription is similar to acquisition of title to property by adverse possession. 3) The person claiming the prescriptive easement must use the other person’s property in a manner that is (a) visible (open or notorious), (b) non-permissive (or, hostile), and (c) continuous for the statutory period.

Answer 190

When someone is prevented from revoking a license. An irrevocable license is functionally the same as an easements. The two components of estoppel are: 1) conduct by the owner of the putative servient estate that includes an express or implied grant of a license to cross or access the servient estate. 2) a detrimental change in position by the owner of the putative dominant estate. This detrimental change must be made in reasonable reliance of the conduct in 1 (this requirement can be met by taking on a new legal obligation in reliance on a party's conduct). Estoppel generally involves reasonable reliance and injustice.

Answer 191

The four elements are: 1) must have been unity of ownership of the two parcels (at one time they were owned by one person) 2) when the parcels were separated, one of the parcels visibly or apparently made some use of the other parcel. 3) the use must have been continuous at the time the parcels were separated. 4) continued use of the quasi-easement must be reasonably necessary to the owner of the parcel claiming the benefit of the easement. Reasonable necessity is a relative easy standard to meet. Ex: if it would be expensive to reach a road another way than using a driveway on the servient estate - standard is met.

Answer 192

(this applies to cases where there was no prior use, but it is reasonable under the circumstances to presume that an easement is implied) 1) unity: there must have been unity of ownership of the land that later became the dominant and servient parcels. (easements by necessity are only implied over land once owned by a common grantor) 2) landlocked at severance: The owner of this land must transfer a part of the larger piece of land in a way that creates a landlocked parcel 3) Strict Necessity: The easement must be necessary for the landlocked parcel to reach a road. Courts typically hold that this necessity must have existed at the time the property was divided from its initial common ownership. Courts also typically apply a standard of strict necessity. (strict necessity means impossibility or near impossibility, not mere inconvenience). 4) easements by necessity last as long as necessary.

Answer 193

If the owner of the benefit uses an easement in a manner that is beyond the scope of the easement, then the owner of the benefit has misused the easement. The owner of the servient parcel can bring an action for misuse against the owner of the benefit. Traditionally the remedy for misuse was an injunction.

Answer 194

a negative easement would allow the owner of the dominant parcel to prohibit the owner of the servient parcel from doing something. They are rare in our legal system. One category of a negative easement that is common in our legal system is conservation easements. This is an easement that places restrictions on the development of the servient parcel. They prohibit or restrict the development on that land. They are the product of statutes.

Answer 195

covenants that run with the land are promises that band both present and future owners of the property. If people create covenants that run with the land that apply to a house, subsequent owners will be bound to the same promise. Covenants that run with the land can be enforced in law as real covenants and in equity as equitable servitudes.

Answer 196

Real Covenants and Equitable Servitudes have slightly different elements for their creation. Once created, the only difference between the two is the remedy that the holder of the benefit can get from the holder of the burden for breach. If the covenant is enforceable as a real covenant, the holder of the benefit can get the legal remedy of money damages. If the covenant is enforceable as an equitable servitude, then the holder of the benefit can get equitable remedies, including an injunction, for breach.

Answer 197

The person making the promise has the burden of the promise. Whereas the promisee has the benefit. The requirements for the benefit to run with the land are a bit more relaxed than the requirements for the burden to run with the land. The distinction between the benefit and the burden running would only matter if the parcel with the burden remained with the original promisor and only the parcel with the benefit had been transferred to a subsequent owner. If both parcels have been transferred, the more stringent requirements for the burden running with the land will control the enforceability of the covenant. If the burdened property has transferred to a subsequent owner, it doesn’t matter much if the benefit has run with the land if the burden has not also run with the land.

Answer 198

1) promise must be in writing and satisfy the statute of frauds 2) the parties must intent the promise to run with the land 3) the promise must touch and concern the land 4) the subsequent owner must have notice of the covenant for the burden to run with the land 5) (only applies to real covenants) there must be privity of estate (people are on opposite sides of a real estate contract) for a promise to be enforced in law as a real covenant

Answer 199

Only exception is that an equitable servitude may sometimes be implied in the context of the common grantor problem that arises when a common grantor neglects to include a covenant in a parcel that is part of a larger planned development where all the parcels were supposed to have the covenant put in place. In this circumstance, a court might enforce an equitable servitude.

Answer 200

The intent to run with land should be reflected in language written in the covenant that makes it clear that it is intended to bind future owners of the burdened parcel and to be enforced by future owners of the benefited parcel.

Answer 201

This element is clearly met if the promise has to do with the occupancy, use, or enjoyment of the property.

Answer 202

1) Notice is not required for the benefit to run with the land. 2) Today, in most circumstances, notice will be a recording issue. 3) Covenants should always be recorded, and, if they are recorded, the notice requirement will be met. 4) An unrecorded covenant might be unenforceable against a subsequent owner without notice on recording principles.

Answer 203

vertical privity: (most popular) this is where we look for privity of estate between the original promisor to the subsequent owner of a parcel. Vertical privity will be met in most scenarios, however, may not be met in an adverse possession scenario where there is not a voluntary transfer of ownership and possession between the original owner and the subsequent owner. horizontal privity: (less popular) The promisor and promisee must be in privity of estate when the promise is made. The promisor and promisee must make the promise as part of a real estate transaction that is separate and independent of the effort to create a covenant that runs with the land. Horizontal privity is met when there is a real estate transaction between a grantor and grantee in which the promise is made as part of this real estate transaction There is no horizontal privity when there are simply two adjacent properties that create this promise between them. We look for horizontal privity at the time in which the promise was made.

Answer 204

Common interest communities are governed by a set of recorded covenants that run with the land. These sets of covenants, conditions, and restrictions (CC&Rs) can be quite lengthy and they also create a governing board that has a duty to manage the community and enforce the covenants.

Answer 205

1) Homeowners association 2) Condominiums 3) Cooperatives (or co-ops) These are more common in New York City In a co-op, the cooperative association retains fee simple ownership of the entire structure, including the individual apartments. Each resident owns a share of the co-op entity, and the co-op entity gives the resident the right to occupy her apartment. This allows co-op residents to avoid New York City’s high mortgage registration tax.

Answer 206

Covenants tend to be immune from touch and concern and benefit in gross issues in the common interest community context. The governing board has an obligation to enforce the CC&Rs. These requirements present numerous opportunities for conflicts between the board and individual property owners. Common interest community covenants will not be enforced if enforcement would be unreasonable.

Answer 207

In CA the legislature has specified that the restrictions are to be construed as equitable servitudes. There is a presumption of reasonableness that shifts the burden of proving otherwise to the party challenging the use restriction. Essentially, an equitable servitude will be enforced unless it: Violates public policy It bears no rational relationship to the protection, preservation, operation or purpose of the affected land; it is arbitrary Or it otherwise imposes burdens on the affected land that are so disproportionate to the restriction’s beneficial effects that the restriction should not be enforced. When determining unreasonableness, the focus is on the restriction’s effect on the project as a whole and not on the individual homeowner.

Answer 208

promises that are enforceable as real covenants and/or equitable servitudes may lose their enforceability if circumstances have changed so much that it is no longer possible to achieve the original purpose of the covenant. Restatement Third of Property: the test is stringent: relief is granted only if the purpose of the servitude can no longer be accomplished. (test is strict and most challenges to covenants based on changed circumstances fail). Standard: as long as the original purpose of the covenants can still be accomplished and substantial benefit will inure to the restricted area by their enforcement, the covenants stand even though the subject property has a greater value if used for other purposes.

Answer 209

changed circumstances, abandonment, or waiver

Answer 210

people of a subdivision may be able to vote to waive certain covenants.

Answer 211

The board governing the homeowners’ association has an obligation to enforce the CC&Rs. If the board fails to enforce the covenant, the covenant may become unenforceable. Typically, courts speak in terms of the covenant being abandoned. You may also see this issue raised in terms of waiver. In either case, the issue is whether a pattern of non-enforcement makes a covenant unenforceable. Legal Standard and its application: The court here applied a test for abandonment that asked about “the number, nature, and severity of the then existing violations, any prior acts of enforcement of the restriction, and whether it is still possible to realize to a substantial degree the benefits intended throughout the covenant.”

Answer 212

Zoning laws are municipal laws regulating the use of land. Land use regulations are typically imposed by states and municipalities, not the federal government. Municipalities are legal entities created by state law. Municipalities only have power granted to them by state law. States delegate the police power authority to regulate land to municipalities through zoning enabling laws.

Answer 213

Zoning enabling laws give municipalities the power to enact zoning laws. They also set limits on zoning laws. A municipal zoning law may not exceed the scope of authority granted to the municipality by the state.

Answer 214

the zoning regulations are constitutional unless they are clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare.

Answer 215

The law in Euclid establishes three types of zones - use zones, height zones, and area zones. The overall zoning scheme was designed to segregate uses into different zones. Residential uses, in particular, were separated from commercial and industrial uses, though it was possible to include residential uses in commercial and industrial areas because of the cumulative nature of the zones. Many municipalities in the US continue to use this basic approach to zoning.

Answer 216

It is nonconforming because it is a use that is prohibited by the new zoning ordinance but it is pre-existing because that use was in existence at the time the new ordinance was put into place. In some jurisdictions, pre-existing nonconforming uses are allowed to continue in operation as of right. The right to operate a pre-existing nonconforming use runs with the land; however, abandonment will also typically terminate the right to operate a pre-existing nonconforming use. Abandonment is a question of intent, so your right to continue operating the store after a period of inactivity will turn on whether you intended to abandon the store or whether you intended to continue operation after a hiatus. About half of U.S jurisdictions use an approach called amortization to deal with pre-existing nonconforming uses. It allows the pre-existing nonconforming use to continue for a set period of time and then requires it to shut down. The amortization period must be reasonable.

Answer 217

Information relating to the structure located on the property Nature of the use Location of the property in relation to surrounding uses Description of the character of and uses in the surrounding neighborhood Cost of the property and improvements to the property Benefit to the public by requiring the termination of the non-conforming use Burden on the property owner by requiring the termination of the non-conforming use The length of time the use has been in existence.

Answer 218

In analyzing the reasonableness of an amortization period, courts in some jurisdictions have considered the property owner’s recoupment of its original investment. Courts also have considered whether the property in question has fully depreciated for income tax purposes in reviewing the reasonableness of an amortization period, although this factor alone has not been held to be determinative. The court does this so that it does not constitute a governmental taking.

Answer 219

a way that a property owner can engage in a use that is otherwise not permitted under a zoning law. a variance may be granted in cases where the strict application of a zoning ordinance would result in exceptional and undue hardship upon the developer of the property. The variance also can be granted without substantial detriment to the public good and will not substantially impair the intent and purpose of the zone plan and zoning ordinance. (Essentially the land must be useless if variance is denied and granting the variance can not affect the purpose of the ordinance). When regulation renders the property unusable for any purpose, the analysis calls for further inquiries which may lead to a conclusion that the property owner would suffer an undue hardship.

Answer 220

This applies where an ordinance may say that a certain use is allowed only if certain conditions are met. The owner that wants a conditional use permit must go to the board and show that they have met these certain conditions. If a law provides conditions, those conditions must have clear guidance on how they are to be applied so that there is little discretion given to the zoning board. (conditions can't be vague). If conditions are not clear, they will be deleted from the law (similar to RAP) and the use will be allowed.

Answer 221

Zoning board may amend their zoning laws. One may challenge an amendment by the rational basis standard from Euclid but that is a hard standard to meet. However, if one can show spot zoning (when an amendment creates an island of nonconforming use that is inconsistent with the overall zoning scheme and essentially shows special treatment) then that is another way that an amendment may get overturned.

Answer 222

1) rational basis standard from Euclid 2) Intermediate scrutiny (applied in situations of gender/sex discrimination or issues with content neutral speech restrictions): the law must be substantially relating to achieving an important governmental objective and must not unreasonably limit alternative avenues of communication. 3) Strict Scrutiny (applies when an ordinance restricts content based speech or racially discriminates in some way): this is the highest level of judicial scrutiny and essentially the law must serve a compelling governmental interest and is narrowly tailored to achieve that result.

Answer 223

an act that was passed to address inequities in how religious organizations were treated regarding zoning. RLUIPA makes it so that an ordinance that imposes a restriction on a religious organization must pass strict scrutiny standard.

Answer 224

1) no substantial burden can be placed on a religious org. This means that it can not put pressure on a religious org to act against their religious beliefs. It must be more than an inconvenience. 2) There should be equal treatment between religious orgs and other orgs 3) non-discrimination 4) no exclusions and unreasonable limitations on religious orgs.

Spring Semester Final Study Guide Flashcards

(248 cards)