| front |
back |
revisions |
lasted changed by |
history |
| Exactions |
must be reasonably related in nature and scope to the impact of the proposed development, otherwise unconst.
- inherently const. suspect (like extortion) |
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Robin Fri, 03 Jul 2009 00:45:03 GMT |
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| Zoning |
govt may enact statutes to reasonably control land use
P must show
- undue hardship
- that variance will not decrease neighboring property values
granted/denied by admin action by zoning board
- a non-conforming but once lawful use cannot be eliminated all at once w/o just compensation; otherwise, unconst. taking |
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Robin Fri, 03 Jul 2009 00:45:03 GMT |
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| Eminent domain |
govt's 5th am. power to take private property for public use in exchange for just compensation
- explicit: govt condemnation
- implicit / regulatory: reg. that has same effect (econ. wipe-out)
remedy:
- compensate owner OR
- terminate reg. and pay damages incurred |
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Robin Fri, 03 Jul 2009 00:42:47 GMT |
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| Possessor's rights |
possessor land has right to be free from trespass and nuisance
- trespass: invasion of land by tangible, physical object
- private nuisance: subs. and unreasonable interference w/ use and enjoyment
- to remove trespasser: bring action for ejectment
- P may not be hypersensitive |
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Robin Fri, 03 Jul 2009 00:42:47 GMT |
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| Water rights |
RIPARIAN doctrine (***MA): water belongs to bordering landowners who share reasonable use
PRIOR APPROPRIATION doctrine: water belongs to state, but right to divert and use it can be acquired by an individual regardless of whether riparian by priority of beneficial use (first in time, first in right)
- ground water: reasonable use
- surface water: common enemy, landowner may drain, etc., w/o harming others |
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Robin Fri, 03 Jul 2009 00:42:47 GMT |
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| Lateral support |
if land is improved by bldgs and adjacent landowner's excavation causes it to cave in, excavator is liable ONLY IF negligent
NO strict liability UNLESS improved land would have collapsed even in its natural state (i.e., P must show that improvements did not contribute) |
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Robin Fri, 03 Jul 2009 00:42:47 GMT |
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| Redemption in equity |
ok up to date of foreclosure sale
* but debtor-mortgagor may not waive right to redeem in the mortgage itself ("clogging equity of redemption")
ACCELERATION clause: full balance + accrued interest + costs must be paid
STATUTORY REDEMPTION may exist for fixed period after foreclosure sale--amount to be paid is foreclosure price instead of original debt (nullifies sale)
***MA: does NOT recognize |
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Robin Fri, 03 Jul 2009 00:30:23 GMT |
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| Effect of foreclosure on various interests |
- terminates junior interests
- does NOT affect senior interests: buyer takes subject (but NOT personally liable)--buyer has incentive to pay off senior liens
- junior lienholders may sue for deficiency judgment
- subordinate interest holders are necessary parties: if not joined, interests are preserved despite foreclosure (mortgage remains on land) |
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Robin Fri, 03 Jul 2009 00:30:23 GMT |
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| Mortgage |
- debt
- voluntary lien in debtor's land to secure the debt
debtor=mortgagor
creditor=mortgagee
Statute of Frauds: must be in writing
"equitable mortgage": debtor-mortgagor gives deed to creditor-mortgagee that is absolute on its face as collateral for debt
rights: until foreclosure, debtor-mortgagor has title and right to possess; creditor-mortgagee has a lien
- mortgage automatically follows a properly transferred note
- creditor-mortgagee can transfer interest by endorsing note and delivering to transferee or executing separate doc of assignment; if not is endorsed and delivered, transferee may become a holder in due course (takes free of any personal defenses that could have been raised against original grantee--lack of consideration, fraud in inducement, unconscionability, waiver, estoppel, BUT subject to real defenses--man-made alternation, duress, fraud in the factum, illegality, infancy, insolvency, incapacity)
- to be holder in due course: note must be negotiable, original note must be endorsed and signed by mortgagee, original note must be delivered to transferee, transferee must take note in good faith w/o notice of illegality, and transferee must pay value for the note
- lien remains on land so long as mortgage was properly recorded |
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Robin Fri, 03 Jul 2009 00:17:51 GMT |
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| Estoppel by deed |
one who conveys realty in which he has no interest is estopped from denying the validity of the conveyance if he later acquires the previously transferred interest |
0 |
Robin Fri, 03 Jul 2009 00:16:54 GMT |
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| Problem of the wild deed |
problem: O sells to A; A does not record; A sells to B; B records A-to-B deed
rule: grantor is unconnected to the chain of title, therefore it is incapable of giving record notice |
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Robin Fri, 03 Jul 2009 00:16:54 GMT |
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| Recording system |
recording acts protect BFPs and mortgagees
BFP: buys for value w/o notice of earlier purchaser
NOTICE (***MA) - later BFP wins regardless of who then records first
MBE: inquiry notice (duty to inspect)
***MA: NOT recognized
RACE-NOTICE - later BFP wins IF records first
* Shelter Rule: one who takes from BFP steps into the BFP's shoes even if not a BFP (e.g., donee or w/ knowledge of prior transfer) |
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Robin Fri, 03 Jul 2009 00:16:54 GMT |
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| Types of deeds |
QUITCLAIM (***MA: RELEASE DEED)
grantor provides NO covenants (not even title!)
GENERAL WARRANTY DEED
promises:
present (breached at delivery)--
- covenant of seisin (grantor owns the estate)
- covenant of right to convey (power to transfer)
- covenant against encumbrances (no servitudes or liens)
future (breached at disturbance)--
- covenant for quiet enjoyment (no third party claim)
- covenant of warranty (will defend against claims of title by others)
- covenant for further assurances (will do whatever reasonably necessary to perfect title if imperfect)
STATUTORY SPECIAL WARRANTY DEED (***MA: QUITCLAIM)
grantor makes promises only on behalf of self:
- has not conveyed to anyone else
- property is free from encumbrances made by grantor |
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Robin Thu, 02 Jul 2009 21:43:48 GMT |
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| Land conveyancing |
LAND CONTRACT
- in writing
- signed by party bound
- describe property
- list consideration
* SoF exception: doctrine of part performance (specific performance of oral contract may be req.):
- buyer takes possession OR
- buyer pays all or part of price OR
- buyer makes subs. improvements
***MA: must do ALL 3
- risk of loss passes once contract signed subject to condition of payment at closing
- destruction before closing:
MBE: buyer bears risk
***MA: party in possession bear risk
CLOSING
seller promises marketable title (no adverse possession; free of encumbrances) + no false statements; seller may satisfy mortgage/lien at closing w/ proceeds of sale
- NO implied warranties of fitness or habitability (caveat emptor) EXCEPT new home by builder-vendor
- deed lawfully executed and delivered
MBE: no need to list consideration, unambiguous description
***MA: must recite consideration, must adequately describe property
- delivery: oral conditions void; look at face; condition with third party in escrow ok
***MA lawful recording is conclusive evidence of delivery |
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Robin Thu, 02 Jul 2009 21:43:47 GMT |
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| Adverse possession |
- continuous (no breaks)
- open and notorious
- actual
- hostile
- statutory period
subjective state of mind irrelevant
tacking: ok if there is privity by blood, contract, deed, will, etc. (non-hostile) (precluded by ouster)
* statute of limitations does NOT start if owner is afflicted by disability at START of adverse possession period (insanity, infancy, imprisonment) |
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Robin Thu, 02 Jul 2009 21:25:13 GMT |
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| covenant vs. equitable servitude |
look at remedy:
damages: covenant
injunction: equitable servitude
COVENANT
burden:
- writing
- intent
- touch and concern
- horizontal and vertical privity
benefit:
- writing
- intent
- touch and concern
- vertical privity
EQUITABLE SERVITUDE
- writing
- intent
- touch and concern
- notice
implied equitable servitude: general/common scheme doctrine (***MA: NOT recognized)
- req. scheme + notice (actual, inquiry, or record)
- defenses: changed conditions |
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Robin Thu, 02 Jul 2009 21:21:38 GMT |
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| Covenant |
promise to not/do something related to land
NOT easement b/c not grant of property interest
it is a contractual limitation or promise regarding land |
0 |
Robin Thu, 02 Jul 2009 21:21:38 GMT |
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| Profit |
entitles holder to enter servient land and take soil or substance
follows rules of easements |
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Robin Thu, 02 Jul 2009 21:21:38 GMT |
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| License |
mere privilege to enter for proscribed purpose
- NOT subject to Statute of Frauds
- freely revocable unless barred by estoppel
oral easement: violates SoF, instead creates revocable license |
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Robin Thu, 02 Jul 2009 21:21:38 GMT |
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| Termination of an easement |
- estoppel (servient owner relies on assurances that easement will not be used)
- necessity (easement by necessity expires at end of need)
- non-willful destruction of servient land
- condemnation of servient estate
- written release by easement holder
- abandonment (physical action)
- merger doctrine (unity of ownership) (later separation does NOT revive)
- prescription (servient owner satisfies adverse possession elements) |
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Robin Thu, 02 Jul 2009 21:07:12 GMT |
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| Easement: appurtenant vs. in gross |
appurtenant: dominant and servient estates
- passes automatically w/ dominant estate
in gross: benefits individual
- only passes if for commercial purposes |
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Robin Thu, 02 Jul 2009 20:57:32 GMT |
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| Reciprocal negative servitudes (general scheme doctrine) |
bonds subsequent grantees in subdivision even if no notice in deed IF
- grantor had common scheme
- unrestricted lot holders had notice
(minority view: req. writing)
remedy: injunction |
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Robin Thu, 02 Jul 2009 20:46:26 GMT |
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| Equitable servitudes |
SUCCESSORS BOUND if
- writing
- intent
- touch and concern
* notice
NO privity req.
writing signed by grantor (or implied by general scheme)
remedy: injunction |
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Robin Thu, 02 Jul 2009 20:46:26 GMT |
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| Real covenants |
BURDEN will run if
- writing
- intent
- touch and concern
* horizontal and vertical privity
* notice
BENEFIT will run if
- writing
- intent
- touch and concern
* vertical privity
writing signed by grantor
remedy: damages |
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Robin Thu, 02 Jul 2009 20:46:26 GMT |
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| Negative easement |
* must be EXPRESS
- light
- air
- support
- streamwater
only created by grantor
injuntion or damages |
1 |
Robin Thu, 02 Jul 2009 20:46:59 GMT |
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| Affirmative easement |
- prescription (use that is cts, open and notorious, under claim of right, hostile for statutory period)
- implication (from prior use)
- necessity (***MA: strict necessity req.)
- grant (writing by grantor)
injunction or damages |
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Robin Thu, 02 Jul 2009 20:57:53 GMT |
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| Landlord's liability for tort |
common law: caveat lessee (T beware)
EXCEPT
- L must maintain common areas
- latent defect rule: L must warn T of known/knowable hidden defect (NOT duty to repair)
- if L assumes duty to repair, must be w/ reasonable care
- public use rule: if L lease public space, liable for defects
- short-term lease of furnished dwelling: L is liable for any defect which harms T
***MA: NO more caveat lessee in residential lease--L is liable for unsafe conditions of which he had written notice |
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Robin Thu, 02 Jul 2009 20:42:16 GMT |
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| assignment vs. sublease |
full: assignment
part: sublease
ASSIGNMENT result:
- L and T2 in privity of estate, NOT contract
- L and T1 remain in privity of contract, remain secondarily liable to each other
- if T2 assigns to T3: NO more privity of estate (or contract unless assumed)
SUBLEASE result:
NO privity of estate OR contract btw L and T2 |
0 |
Robin Thu, 02 Jul 2009 20:42:16 GMT |
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| Landlord's duties |
- if T leaves early, L may: accept surrender, ignore and sue, or re-let (may be req.)
- deliver possession (legal only)
- implied covenant of quiet enjoyment (against wrongful eviction/exclusion--T must give notice and leave in order to claim); L must control common areas, prevent nuisances
- implied warranty of habitability in residential lease (non-waivable): T may move out and end lease, repair and deduct cost from rent, reduce rent (court may req. escrow), or remain and seek damages
***MA: presumption of retaliatory eviction w/in 6 mos. of T's complaint |
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Robin Thu, 02 Jul 2009 20:11:32 GMT |
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| Tenant's duties |
- liability to third parties
- repair, not commit waste
- pay rent
* T is liable to invited third parties, even if L expressly promised to repair
***MA: any third party lawfully on premises injured by unsafe condition has cause of action against LANDLORD if landlord had written notice |
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Robin Thu, 02 Jul 2009 19:56:27 GMT |
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| Landlord / tenant law |
TENANCY FOR YEARS
- if >1yr must be in writing (Statute of Frauds)
- automatic termination, NO notice req.
PERIODIC TENANCY
- continues for successive intervals until L or T give notice to terminate
- may be express or implied (incl. oral term of years in violation of SoF and holdover--***MA: "tenancies at will")
- req. notice of 1+ full period (except >1yr: 6 mos.), ends at natural period end
TENANCY AT WILL
- no fixed duration, L or T may terminate at any time |
0 |
Robin Thu, 02 Jul 2009 19:56:27 GMT |
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| Rights and duties of co-tenants |
- each may possess whole
- right to rent from other co-tenant in exclusive possession: ONLY if has been ousted
- right to rent from third parties: portion
- adverse possession: requires ouster
- carrying costs: responsible for share (taxes, mortgage)
- repairs: right to contribution
- improvements: NO right to contribution, ONLY credit in value at partition (+ liability for decrease in value)
- waste: liability
- partition: right to bring action |
0 |
Robin Thu, 02 Jul 2009 19:56:27 GMT |
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| Tenancy in common |
- each owns an individual part
- each has right to possess the whole
- each interest in descendible, devisable, alienable
- NO survivorship rights
- presumption: tenancy in common |
0 |
Robin Thu, 02 Jul 2009 19:56:27 GMT |
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| Tenancy by entirety (incl. ***MA) |
***MA: requires express statement that tenancy by entirety created, otherwise tenancy in common
MBE: arises presumptively between married partners
creditors: ***MA: may only touch share of applicable spouse, NOT other spouse's share or right of survivorship
unilateral conveyance to third party: does NOT defeat right of survivorship |
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Robin Thu, 02 Jul 2009 19:12:20 GMT |
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| Severance of joint tenancy |
severance and
- SALE (severance at time of agreement to sell)
- PARTITION (voluntary, in kind (physical), or forced sale)
- MORTGAGE (***MA: title theory--severs joint tenancy OR lien theory--does NOT sever)
become tenants in common |
0 |
Robin Thu, 02 Jul 2009 19:12:20 GMT |
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| Creation of joint tenancy |
- same TIME
- same TITLE
- w/ IDENTITICAL INTERESTS
- w/ rights to POSSESS the whole
disfavored, therefore must state right of survivorship |
0 |
Robin Thu, 02 Jul 2009 19:12:20 GMT |
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| Concurrent estates |
JOINT TENANCY: 2+ w/ right of survivorship
* alienable, but NOT devisable, descendable
TENANCY BY THE ENTIRETY: marital interest w/ right of survivorship
TENANCY IN COMMON: 2+ w/ NO right of survivorship |
0 |
Robin Thu, 02 Jul 2009 19:12:20 GMT |
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| Reform of RAP |
***MA: wait-and-see / second look doctrine
Uniform Statutory Rule Against Perpetuities (USRAP): codifies RAP but provides alternative 90-year vesting period
- both embrace cy pres |
0 |
Robin Thu, 02 Jul 2009 18:50:18 GMT |
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| RAP: executory interest w/ NO limit on time w/in which it must vest |
violates RAP
* charity-to-charity exception |
0 |
Robin Thu, 02 Jul 2009 18:50:18 GMT |
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| RAP: gift to open class conditioned on members surviving to age beyond 21 |
violates RAP
"bad as to one, bad as to all" |
0 |
Robin Thu, 02 Jul 2009 18:50:18 GMT |
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| RAP does NOT apply to... |
- future interest in grantor
- indefeasibly vested remainders
- vested remainders subject to complete defeasance |
0 |
Robin Thu, 02 Jul 2009 18:50:18 GMT |
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| remainders vs. executory interests |
- future interest in grantee capable of becoming possessory upon expiration of prior possessory estate (does NOT cut short another interest)
vs.
- holder comes into power as consequence of premature forfeiture, etc.--cuts short an interest in another ("shifting") or the grantor/heirs ("springing" |
0 |
Robin Thu, 02 Jul 2009 18:32:15 GMT |
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| vested remainders |
INDEFEASIBLY VESTED REMAINDER: "...remainder to X"
VESTED REMAINDER SUBJECT TO COMPLETE DEFEASANCE/DIVESTMENT: (could be cut short by a condition subsequent) "...remainder to X, provided, however, that if X..., then to Y"
- creates a SHIFTING EXECUTORY INTEREST (Y), reversion in grantor
* compare: "...then to X if..." = contingent remainder (springing executory interest in X)
VESTED REMAINDER SUBJECT TO OPEN: (vested in a group, at least one of whom is qualified to take, but subject to diminution by new members) "...then to X's children" |
0 |
Robin Thu, 02 Jul 2009 18:32:15 GMT |
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| Doctrine of Worthier Title |
grantor may not create remainder in his heirs
- treated as life estate + reversion
BUT: grantor's intent controls
***MA: does NOT apply--it is enforceable as life estate + contingent remainder |
0 |
Robin Thu, 02 Jul 2009 18:32:15 GMT |
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| Rule in Shelley Case |
"To X and then X's heirs" combines into fee simple absolute in X
today: abolished--X has life estate, heirs have contingent remainder, grantor has reversion |
0 |
Robin Thu, 02 Jul 2009 18:16:38 GMT |
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| Destructibility Rule |
if contingent remainder still contingent at death of preceding estate holder, it is destroyed
modern rule: preceding estate holder's heirs take subject to a SPRINGING EXECUTORY INTEREST |
0 |
Robin Thu, 02 Jul 2009 18:16:38 GMT |
|
| vested remainder vs. contingent remainder |
vested: created in ascertained person AND NOT subject to any condition precedent
vs.
contingent: created in unascertained person OR subject to condition precedent |
0 |
Robin Thu, 02 Jul 2009 18:16:38 GMT |
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| remainder |
future interest in grantee that is capable of becoming possessory upon expiration of a prior possessory estate created in same conveyance--does NOT follow a defeasible fee; does NOT cut short/divest a prior transferee |
0 |
Robin Thu, 02 Jul 2009 18:16:38 GMT |
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| Future interests in transferees |
- vested remainder
--indefeasibly vested remainder
--vested remainder subject to complete defeasance
--vested remainder subject to open
- contingent remainder
- executory interest
--shifting executory interest
--springing executory interest |
0 |
Robin Thu, 02 Jul 2009 12:58:05 GMT |
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| Present possessory interests |
- fee simple absolute
- fee tail
- defeasible fees
--fee simple determinable
--fee simple subject to condition subsequent
--fee simple subject to execution limitation
- life estate |
0 |
Robin Thu, 02 Jul 2009 12:58:05 GMT |
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| Future interests in grantor |
- possibility of reverter
- right of entry (power of termination)
- reversion |
0 |
Robin Thu, 02 Jul 2009 12:58:05 GMT |
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| Life tenant: waste issues |
VOLUNTARY/AFFIRMATIVE waste prohibited EXCEPT:
- prior use
- reasonable repairs
- grant
- exploitation (only suitable to exploit)
PERMISSIVE waste / NEGLECT prohibited
- life tenant must maintain in good repair
- liable for ordinary taxes to extent of FMV of property or on income/profits from land
AMELIORATIVE waste prohibited
- life tenant must NOT enhance property value EXCEPT w/ future interest-holders' permission |
0 |
Robin Thu, 02 Jul 2009 12:54:47 GMT |
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| Life tenant's rights |
- ordinary uses and profits from land
- may NOT commit waste |
0 |
Robin Thu, 02 Jul 2009 12:54:47 GMT |
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devisable
descendible
alienable |
- can pass by will
- will pass by intestacy
- transferable inter vivos (during life) |
0 |
Robin Thu, 02 Jul 2009 12:34:09 GMT |
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| Life estate |
"To X for [life / life of Y]."
reversion (grantor)
OR
remainder (third party) |
0 |
Robin Thu, 02 Jul 2009 12:25:41 GMT |
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| Fee simple subject to an executory limitation |
"To X, but if [event] occurs, then to Y."
"shifting" executory interest (third party) |
1 |
Robin Thu, 02 Jul 2009 12:39:58 GMT |
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| Fee simple subject to condition subsequent |
"To X, but if [event] happens, grantor reserves right to reenter and retake."
- grantor must carve out right of reentry
right of entry / power of termination (grantor) |
0 |
Robin Thu, 02 Jul 2009 12:22:34 GMT |
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| Fee tail |
"To X and heirs."
reversion (grantor)
OR
remainder (third party) |
0 |
Robin Thu, 02 Jul 2009 12:22:34 GMT |
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| Fee simple determinable |
"To X so long as..."
possibility of reverter (grantor) |
0 |
Robin Thu, 02 Jul 2009 12:22:34 GMT |
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| Condominiums |
each owner owns interior + undivided interest in exterior and common areas
treated as fee ownership: ordinary rules against restraints on alienation apply |
0 |
Robin Sun, 21 Jun 2009 15:51:35 GMT |
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| Cooperative |
titles to land and buildings held by corporation that leases apts to shareholders
direct restraint on alienation invalid |
0 |
Robin Sun, 21 Jun 2009 15:50:59 GMT |
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| Right to exclude: remedies of possessor |
- trespass (physical object)
- private nuisance (intangibles)
- continuing trespass
- ejectment or unlawful detainer (+ money damages) |
0 |
Robin Sun, 21 Jun 2009 15:50:25 GMT |
|
| Water rights |
WATERCOURSES (streams, rivers, lakes)
- RIPARIAN doctrine: water belongs to bordering landowners; can use only in connection with riparian parcel
--natural flow theory: subs. diminution of water qty or velocity is enjoinable
--reasonable use theory: subs. interference required to enjoin (alternation, pollution, etc.)
--natural (human) vs. artificial (irrigation) use: natural use prevails
- PRIOR APPROPRIATION doctrine: rights, priority acquired by actual use, may be abandoned
GROUNDWATER (percolating)
- absolute ownership doctrine (incl. export)
- reasonable use doctrine
- correlative rights doctrine (joint tenants: reasonable amount)
- appropriative rights doctrine (priority of use)
SURFACE WATERS
- may be used for any purpose
- liability: for changing natural flow (dikes)
--natural flow theory (no alteration, but may incl. reasonable changes)
--common enemy theory (owner can take protective measures to get rid of water, but no unnecessary damage to others' land)
--reasonable use theory (balance utility/harm)
* surface owners may capture or divert off land UNLESS malicious |
0 |
Robin Sun, 21 Jun 2009 15:49:16 GMT |
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| Rights to lateral and subjacent support of land |
landowner is strictly liable if excavation causes adjacent land to subside
adjacent landowner is strictly liable for damage to buildings caused by excavation IF land would have collapsed in its natural state, otherwise only if excavation done negligently
underground occupant must support existing surface and buildings; liability for new buildings requires negligence |
0 |
Robin Sun, 21 Jun 2009 15:32:48 GMT |
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| Foreclosure |
- judicial sale OR power of sale
- redemption: prior to foreclosure sale (in equity) OR in statutory period after sale
- foreclosure preserves senior interests, destroys junior interests EXCEPT in failure to incl. junior interest in action
- priority may be modified (failure to record, subordination agreement, purchase money mortgage, modification of senior mortgage, grant of optional future advances)
- sale proceeds: expenses/fees, foreclosed loan, junior interests, mortgagor
- deficiency judgment: personal cause of action
- installment contract: forfeiture EXCEPT in grace period (equity), restitution, treat as mortgage, waiver (acceptance of late payments) |
0 |
Robin Sun, 21 Jun 2009 15:14:56 GMT |
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| Receiverships |
may be appointed by court if
- waste is occurring
- value of property is inadequate to secure debt
- mortgagor is insolvent |
0 |
Robin Sun, 21 Jun 2009 15:08:28 GMT |
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| Risks of mortgagee in possession |
- duty to account for rents
- duty to manage property
- potential for tort liability |
0 |
Robin Sun, 21 Jun 2009 15:01:45 GMT |
|
| Mortgagor consent and abandonment |
mortgagee may take possession w/ mortgagor's consent or after abandonment |
0 |
Robin Sun, 21 Jun 2009 15:00:04 GMT |
|
| Possession before foreclosure |
LIEN theory: mortgagee only holds a security interest, therefore mortgagor is owner until foreclosure
TITLE theory: mortgagee holds legal title until foreclosure, therefore may possess upon demand
intermediate theory: mortgagor holds legal title until default, then mortgagee holds legal title and may demand possession (effectively title theory) |
0 |
Robin Sun, 21 Jun 2009 14:57:55 GMT |
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| Defenses and discharge of mortgage |
defenses in action on underlying obligation
mortgagee's right to foreclose is precluded by discharge of the mortgage (payment of debt secured, merger of legal and equitable interests, mortgagee's acceptance of a deed in lieu) |
0 |
Robin Sun, 21 Jun 2009 14:51:03 GMT |
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| Transfers by mortgagee and mortgagor |
note and mortgage must pass to the same person for transfer to be complete
- transfer of mortgage may automatically transfer the note; transferee of mortgage can file equitable action to compel transfer of note
- mortgage automatically follows transfer of note
grantee of mortgaged property takes subject to mortgage; original mortgagor is secondarily liable as surety |
0 |
Robin Sun, 21 Jun 2009 14:51:03 GMT |
|
| Security interests in real estate |
- mortgage
- deed of trust (debtor/notemaker gives to trustee, who lender instruct to foreclose when debtor is in default)
- installment land contract
- absolute deed ("equitable" mortgage)
- sale-leaseback (disguised mortgage) |
0 |
Robin Sun, 21 Jun 2009 14:51:03 GMT |
|
| Recording |
- notice
- race-notice
- race
* only BFPs protected--NOT donees, heirs |
0 |
Robin Sun, 21 Jun 2009 02:58:04 GMT |
|
| Covenants for title and estoppel by deed |
other deeds to convey property (non-leaseholds):
GENERAL WARRANTY deed
at conveyance:
--covenant of seisin (title and possession)
--covenant of right to convey (title)
--covenant against encumbrances (physical or title)
later (upon disturbance):
--covenant for quiet enjoyment
--covenant of warranty (to defend and compensate for losses by claims of title)
--covenant for further assurances
SPECIAL WARRANTY deed: "grant" terms
QUITCLAIM deed: releases whatever interest grantor has--NO covenants incl. or implied
ESTOPPEL by deed: when grantor purports to convey estate she does not own, subsequent acquisition automatically inures to grantee (EXCEPT quitclaim deeds); BUT: grantor's later sale to BFP prevails |
0 |
Robin Sun, 21 Jun 2009 02:58:04 GMT |
|
| Delivery and acceptance |
deed not effective until delivered and accepted
failure to record does not affect deed
express condition of grantor's death ok
conditions not in deed disregarded
transfer to third party w/ or w/o conditions ok |
0 |
Robin Sun, 21 Jun 2009 02:41:34 GMT |
|
| Boundary cases |
accretion: belongs to abutting owner
avulsion (sudden): does not change ownership |
0 |
Robin Sun, 21 Jun 2009 02:32:02 GMT |
|
| Reformation of deeds |
for:
- mutual mistake
- scrivenor's error
- unilateral mistake caused by misrepresentation or other inequitable conduct |
0 |
Robin Sun, 21 Jun 2009 02:32:02 GMT |
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| Description of land conveyed |
parol evidence admissible to resolve patent / latent ambiguities, but NOT where description is inadequate |
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Robin Sun, 21 Jun 2009 02:29:42 GMT |
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| Fraudulent conveyances |
deed may be set aside if made w/ intent to defraud creditors or w/o receipt of reasonably equivalent value in exchange
EXCEPT: not set aside against grantee who took in good faith and paid reasonable value |
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Robin Sun, 21 Jun 2009 02:28:41 GMT |
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| Void / voidable deeds |
VOID: will be set aside despite BFP
- forged
- never delivered
- obtained by fraud in factum (grantor deceived, unwittingly executed deed)
VOIDABLE: will be set aside before deed passes
- executed by minors, incapacitated persons
- obtained through fraud in inducement, duress, undue influence, mistake, breach of fiduciary duty |
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Robin Sun, 21 Jun 2009 02:26:56 GMT |
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| Deeds |
requirements:
- in writing
- signed by grantor
- reasonably identify parties and land
may be inter vivos gift if:
- donative intent
- delivery
court presumes grantee has authority to fill in name, but blank land description is VOID
- acceptance |
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Robin Sun, 21 Jun 2009 02:26:56 GMT |
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| Sale of existing land and buildings: liability for defects |
- misrepresentation (fraud): seller's knowing / negligent false statement, buyer relied w/ material affect on value of the property
- active concealment
- failure to disclose: seller (should) know, defect not apparent and serious
* disclaimers of liability: NOT sufficient to overcome fraud, concealment or failure to disclose; SPECIFIC disclaimer may be upheld |
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Robin Sun, 21 Jun 2009 02:19:50 GMT |
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| Warranty of fitness / quality |
in NEW construction by builder only
vendee may sue builder for negligence despite lack of privity (sometimes) |
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Robin Sun, 21 Jun 2009 02:19:50 GMT |
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| Remedies for breach of sales contract |
- damages (diff. btw contract price and FMV on date of breach + incidental costs) OR
- specific performance
* liquidated damages routinely upheld |
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Robin Sun, 21 Jun 2009 02:15:07 GMT |
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| Marketable title |
every contract contains an implied warranty that seller will provide marketable title (need not be perfect) AT CLOSING (mortgage may be satisfied at closing)
UNMARKETABLE title:
- adverse possession
- when future interest holder is unborn / unascertained
- significant encroachments (BUT known / visible beneficial easement OK)
- existing zoning violation
remedies BEFORE CLOSING:
- buyer may have reasonable time to cure
- rescission
- damages
- specific performance w/ abatement
- quiet title suit
after closing: contract and deed merge, seller's liability on implied contractual warranty ends |
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Robin Sun, 21 Jun 2009 02:15:06 GMT |
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| Equitable conversion |
after contract signed, seller has bare legal title (merely personal property); HOWEVER: seller still has right to possession until closing
risk of loss on buyer
EXCEPT: Uniform Vendor and Purchaser Risk Act puts risk on seller unless buyer has title or possession at time of loss (but seller must credit casualty insurance proceeds against purchase price) |
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Robin Sun, 21 Jun 2009 02:15:06 GMT |
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| Conveyancing: Statute of Frauds |
exceptions: part performance (possession, substantial improvements, payment of purchase price) |
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Robin Sun, 21 Jun 2009 02:15:06 GMT |
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| Adverse possession |
operates by statute of limitations for trespass
requirements:
- actual entry w/ exclusive possession that is:
- open and notorious (put owner on notice)
- adverse (w/o permission; permission may be presumed: grantor/tenant remains; co-tenants require ouster)
- cts throughout statutory period (type of use owner would make; tacking permitted w/ privity)
* possessor takes title subject to covenants in true owner's deed take IF she complies for the limitations period, otherwise not |
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Robin Sun, 21 Jun 2009 01:50:39 GMT |
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| Equitable servitude |
covenant that equity will enforce against assignees of burdened land who have notice
- usual remedy: injunction
creation:
- COMMON SCHEME (recorded or oral to early buyers w/ general pattern)
- NOTICE
requirements for BURDEN TO RUN:
- INTENT
- NOTICE
- TOUCH & CONCERN
requirements for BENEFIT TO RUN:
- INTENT
- TOUCH & CONCERN
* NO privity required
equitable defenses:
- unclean hands
- acquiescence
- estoppel
- laches (benefited party fails to bring suit)
- neighborhood has changed so that enforcement would be inequitable
termination:
- written release
- merger
- condemnation |
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Robin Sun, 21 Jun 2009 01:39:55 GMT |
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| Real covenants |
run with land at law: subsequent owners may enforce or be burdened
requirements for BURDEN TO RUN:
- INTENT that successors be bound (may be inferred)
- NOTICE (subsequent purchaser for value must have actual / inquiry / record notice at time of purchase)
- HORIZONTAL PRIVITY (btw original parties: grantor-grantee, landlord-tenant, etc.)
- VERTICAL PRIVITY (same interest)
- TOUCH & CONCERN the land
requirements for BENEFIT TO RUN:
- INTENT
- VERTICAL PRIVITY (may be lesser estate)
- TOUCH & CONCERN the land
* no horizontal req., therefore promisee's successors can ONLY enforce against promisor (not successors)
REMEDY: damages only--if injunction sought, treat as EQUITABLE SERVITUDE |
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Robin Sun, 21 Jun 2009 01:39:55 GMT |
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| Profits |
holder can take resources from servient estate
same rules as easement (creation, termination, etc.)
may be extinguished through surcharge (misuse that overburdens) |
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Robin Sun, 21 Jun 2009 01:07:44 GMT |
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| License |
- revocable
- personal to licensee, therefore inalienable
- transfer results in revocation
* failed attempt to create easement: results in a license
IRREVOCABLE in certain circumstances:
- estoppel
- license coupled w/ an interest |
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Robin Sun, 21 Jun 2009 01:04:27 GMT |
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| Termination of easement |
- state conditions
- unity of ownership (merger)
- deed of release
- abandonment (physical act: nonuse insuff.)
- estoppel (oral expression / conduct demonstrating intent to abandon that is relied upon)
- prescription (adverse cts use for statutory period)
- necessity (easement created by necessity expired when necessity ends)
- condemnation and destruction (holder entitled to compensation IF voluntary, maybe if servient estate condemned) |
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Robin Sun, 21 Jun 2009 00:58:22 GMT |
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| Use of servient estate |
easement holder has duty to make repairs IF sole user, otherwise court will apportion
overuse: servient estate holder must sue for damages--easement NOT terminated |
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Robin Sun, 21 Jun 2009 00:58:22 GMT |
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| Creation of easement |
EXPRESS GRANT: check SoF; grant must comply with deed requirements
EXPRESS RESERVATION: grantor conveys title but reserves easement--ONLY ok for self
IMPLICATION: operation of law--exception to SoF; types:
--implied from EXISTING USE prior to division (apparent/cts and reasonably necessary to enjoy dominant part)
--implied w/o existing use (subdivision plat, profit a prendre)
--by NECESSITY after division
PRESCRIPTION (like adverse possession): must be open and notorious, adverse, cts, statutory period
* scope: may be adjusted to meet present and future need of dominant tenement but NOT to unreasonably overburden servient estate |
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Robin Sun, 21 Jun 2009 00:50:39 GMT |
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| Easement in gross |
holder acquires right to use servient tract independent of possession of another tract
NOT transferable EXCEPT if economic/commercial (e.g., right to erect billboard) |
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Robin Sun, 21 Jun 2009 00:40:04 GMT |
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| Easement appurtenant |
benefits holder in use of another tract of land: there must be dominant and servient tracts
passes with transfer of benefited land regardless of whether mentioned
burden also passes automatically UNLESS new owner is a BFP w/o actual/constructive notice of the easement |
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Robin Sun, 21 Jun 2009 00:40:04 GMT |
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| Easements |
- right to use for special purpose
- NO right to possess or enjoy
- presumed to be perpetual unless specifically limited in grant
TYPES:
- affirmative: use
- negative (restrictive covenants): light, air, support, flow of artificial stream |
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Robin Sun, 21 Jun 2009 00:40:04 GMT |
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| Nonpossessory interests in land |
- easements
- profits
- covenants
- servitudes |
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Robin Sun, 21 Jun 2009 00:25:23 GMT |
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| Fixtures |
chattel so affixed to land that it ceases to be personal property, passes with the property; determined by objective intent to annex:
- nature of article
- manner of attachment
- amount of damage that removal would cause
- adaptation of item to use of the realty
* annexation may be constructive (keys, custom curtain rods)
landlord-tenant agreement controls whether annexed chattel is a fixture |
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Robin Sun, 21 Jun 2009 00:24:52 GMT |
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| Tort liability of landlord and tenant |
landlord must disclose (NOT repair) dangerous conditions he knows / should know about
landlord has duty of reasonable care in maintaining common areas
landlord is liable for injuries to the public if:
- knows / should know of dangerous condition
- believes tenant may admit the public before repairing
- fails to repair
furnished short-term lease: landlord liable for injuries from ANY defect whether or not known
liability for negligent repairs
* modern trend: general duty of reasonable care, duty to repair upon notice |
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Robin Sat, 20 Jun 2009 23:25:49 GMT |
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| Sublease vs. assignment |
sublease where tenant reserves times for self
- sublessee does NOT pay landlord directly, not personally liable
- sublessee may NOT enforce covenants in main lease (except implied warranty of habitability)
assignment: est. privity of estate with landlord
- covenant to pay rent runs w/ land, but original tenant has contractual obligation; BUT if assignee reassigns, liability does NOT continue |
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Robin Sat, 20 Jun 2009 23:25:49 GMT |
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| Retaliatory eviction |
presumed if landlord acts within 90-180 days after tenant exercises rights |
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Robin Sat, 20 Jun 2009 23:25:49 GMT |
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| Implied warranty of habitability |
- nonwaivable implied covenant in RESIDENTIAL leases
- landlord's duty tied to local housing codes
in event of breach, tenant may
- terminate lease
- make repairs and offset cost against rent
- abate rent to FMV in view of defects
- remain in possession, pay rent, sue for damages |
1 |
Robin Sat, 20 Jun 2009 23:09:49 GMT |
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| Landlord duties and tenant remedies |
subject to modification by language, statute, implied warranty of habitability, landlord has NO duty to repair/maintain
- every lease has implied covenant of quiet enjoyment (no interference w/ possession by landlord or paramount title holder)
--actual/partial eviction: relief of duty to pay rent; partial eviction by third party: apportionment
--if landlord constructively evicts (makes uninhabitable): tenant must vacate |
1 |
Robin Sat, 20 Jun 2009 23:09:30 GMT |
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| Tenant abandons |
landlord may
- do nothing or repossess
* duty to mitigate: seek to relet
- tenant liable for difference between promised rent and FMV, or rent from reletting
* if SURRENDER found (incl. landlord's resumption of possession), tenant is FREE from liability accruing after abandonment |
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Robin Sat, 20 Jun 2009 22:57:05 GMT |
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| Tenant in possession fails to pay rent |
landlord may
- sue for rent due
- evict under state's unlawful detainer statute (only issue is whether tenant has right to possession) |
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Robin Sat, 20 Jun 2009 22:57:05 GMT |
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| Tenant's liability for covenants to repair |
landlord still obligated to repair under nonwaivable implied warranty of habitability
EXCEPT: nonresidential tenant's covenant is enforceable
--but NOT structural damage or casualty destruction unless expressly included |
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Robin Sat, 20 Jun 2009 22:57:05 GMT |
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| Destruction of premises w/o fault |
NO waste: in absence of language, NEITHER party has duty to restore, BUT tenant must continue payment rent
EXCEPT: statutes/cases giving tenant option to terminate even w/o language |
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Robin Sat, 20 Jun 2009 22:34:02 GMT |
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| Tenant's duty to repair: doctrine of waste |
see property rules on waste
- voluntary (affirmative): intentional or negligent damage, or exploitation of minerals
- permissive: failure to protect, make ordinary repairs
- ameliorative waste: tenant alters/increases value--liable for cost of restoration EXCEPT if long-term tenant and reflects neighborhood changes |
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Robin Sat, 20 Jun 2009 22:34:02 GMT |
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| Leases |
- covenants are independent: if 1 party breaches, other must perform and seek damages
EXCEPTIONS:
--actual & constructive eviction
--implied warranty of habitability
--statutory exception: landlord may terminate lease for nonpayment of rent |
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Robin Sat, 20 Jun 2009 22:34:02 GMT |
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| Hold-over doctrine |
if tenant continues in possession, landlord may:
- evict
- bind him to a new periodic tenancy w/ same terms
* NONresidential tenants may be held to a new year-to-year tenancy IF original lease term was for 1+yrs OR a periodic term based on frequency of rent payments if original term was <1yr
* RESIDENTIAL tenant are held to a new month-to-month tenancy regardless of original term
** if landlord gives notice BEFORE lease expires that rent will be increase, tenant is held to acquiesce EXCEPT if: brief, not tenant's fault, seasonal lease |
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Robin Sat, 20 Jun 2009 22:19:49 GMT |
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| Tenancy at sufferance |
tenant wrongfully remains in possession; landlord may evict w/o notice |
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Robin Sat, 20 Jun 2009 22:16:10 GMT |
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| Tenancy at will |
may be terminated w/o notice by any party w/ power to do so or by operation of law (e.g., at death, commission of waste) |
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Robin Sat, 20 Jun 2009 22:16:10 GMT |
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| Creation of leasehold |
- express agreement
- implication (payment accepted)
- operation of law (e.g., tenant remains after lease expires and landlord treats as periodic tenancy)
- periodic tenancy is automatically renewed until notice given |
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Robin Sat, 20 Jun 2009 22:16:10 GMT |
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| Termination of leasehold |
- landlord reserves a right of entry to terminate if tenant breaches
- by statute, landlord may terminate upon tenant's failure to pay rent
- surrender accepted by landlord (if >1yr remaining, must be in writing) |
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Robin Sat, 20 Jun 2009 22:16:10 GMT |
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| Leasehold |
estate in land
- tenant: present possessory interest
- landlord: future interest (reversion)
must be in writing if for >1yr |
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Robin Sat, 20 Jun 2009 22:07:43 GMT |
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| Concurrent estates |
JOINT TENANCY: rights of survivorship
- requirement of unities: time, title, interest, possession)
- all interests are EQUAL
- may be severed (tenancy in common results or else just to severing tenant if there are multiple) by:
--inter vivos conveyance, judgment lien (when sold), mortgage in lien theory states (or when foreclosed and sold in title theory states), leases (sometimes)
--contract to convey
--testamentary disposition has NO effect
--murder (constructive trust imposed)
TENANCY BY THE ENTIRETY: marital estate akin to joint tenancy
- may be severed by: death, divorce, mutual agreement, execution by joint creditor of both parties
- deed/mortgage NOT effective
TENANCY IN COMMON: interests may be unequal; NO survivorship |
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Robin Sat, 20 Jun 2009 04:16:16 GMT |
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| Restraints on alienation |
VOID restraints:
- disabling restraints on legal interest
- absolute restraints on fee simple UNLESS limited and for reasonable purpose
VALID restraints:
- forfeiture and promissory restraints on life estates
- forfeiture restraints on transferability of future interests
- reasonable restrictions in commercial transactions
- rights of first refusal
- restrictions on assignment and sublease of leaseholds (e.g., requiring landlord's consent) |
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Robin Sat, 20 Jun 2009 04:03:08 GMT |
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| Rule Against Perpetuities |
no interest in property is valid unless it must vest (become possessory or indefeasibly vested remainder or vested remainder subject to total divestment), if at all, not later than 21 years after some life in being (measuring life) at the creation of the interest
applies to:
- contingent remainders
- executory interests
- vested remainders subject to open (class gifts)
- options to purchase (not attached to a leasehold)
- rights of first refusal
- powers of appointment
starts to run at:
- will: testator's death
- deed: date of delivery
- irrevocable trust: date created
- revocable trust: date it becomes irrevocable
* does NOT apply to vested interests (vested remainders, reversions, possibilities of reverter, rights of entry)--grantor's interests are safe; charity-to-charity exception; exception for options to purchase held by a current tenant
* does NOT apply to equitable interests (e.g., spendthrift clause in trust) |
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Robin Sat, 20 Jun 2009 04:03:08 GMT |
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| Trust |
fiduciary relationship w/ respect to specific property (res) where trustee holds legal title to the property subject to enforceable equitable rights in a beneficiary
creator: "settlor"
requires intent
may be
- charitable (indefinite beneficiaries; may be perpetual: no RAP); cy pres applies
- testamentary (by will)
- inter vivos
must be in writing |
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Robin Sat, 20 Jun 2009 04:03:08 GMT |
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| Doctrine of worthier title (rule against remainders in grantor's heirs) |
invalid: becomes a reversion in the grantor UNLESS intent manifests otherwise
ONLY applies to inter vivos transfers (not wills) |
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Robin Sat, 20 Jun 2009 03:16:35 GMT |
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| Rule in Shelley's Case |
generally abolished
to A for life, to B for life, then to A's heirs:
changed to give remainder to A |
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Robin Sat, 20 Jun 2009 03:16:35 GMT |
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| Future interests |
REVERSIONARY: future interest in transferor
- possibility of reverter
- rights of entry
- reversion (e.g., after life estate)
REMAINDER (future interest in third party)
- indefeasibly vested: in existing person, not subject to condition precedent
- vested subject to open: in class of persons subject to diminution
- vested subject to total divestment: subject to condition subsequent ("to A, then to B, but if B...")
- contingent remainder : in unborn persons, subject to condition precedent (must be satisfied before remainder has right to possession); may be alternative contingent remainders
EXECUTORY INTERESTS: in third parties that either divest a transferee's preceding freehold estate ("shifting interests") or follow a gap in possession or cut short a grantor's estate ("springing interests")
* subject to RAP because not vested |
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Robin Sat, 20 Jun 2009 03:16:35 GMT |
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| Rights and duties of life tenant: doctrine of waste |
- affirmative (voluntary) waste: exploitation of natural resources OK where repair necessary, land is only suitable, or permitted by grantor
- permissive waste: tenant fails to protect/preserve land, pay ordinary taxes
- ameliorative waste: OK for tenant to alter/demolish IF (1) market value NOT diminished AND (a) remaindermen do not object OR (b) a substantial change in neighborhood conditions prevent reasonable productivity OR (2) land is practically worthless (sale ok) |
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Robin Sat, 20 Jun 2009 02:28:14 GMT |
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| Present possessory estates |
FEE SIMPLE absolute (presumed)
DEFEASIBLE FEE (fee simple estates that can be terminated upon happening of event)
- fee simple determinable w/ (automatic) possibility of reverter (reversionary future interest) ("while, during, until")
- fee simple subject to condition subsequent w/ right of entry (NON-automatic termination) ("but if, provided that")
- fee simply subject to executory interest (passes to third party)
LIFE ESTATE (may be for life of another) |
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Robin Sat, 20 Jun 2009 02:28:14 GMT |
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