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Real Property, Rules, Exceptions, Required language, Exam Tips - Coggle…

- - - - Covenants are Ks, so when breached they lead to an award or damages
      - Equitable Servitude - lead to the granting of an equitable remedy like injunction
        
        Implied reciprocal servitude - where one owner sells lots with restrictions that benefit the land retained by the owner, after which owner is subject to same restriction
        
        additionally used when owners forgets to include restrictions in each dead
        
        If a purchaser of property w/ a deed containing the restriction wants to enforce the restriction on another w/o it, they must show:
        
        must show that there was a common plan or scheme of development; AND
        
        that the party to be bound had notice of the restriction
        
        see notice described bellow
    - - Privity
        
        Horizontal Privity
        
        Relationship between original covenantor and covenentee - must include privity of K in connection to the land
        
        i.e. LL/T, Grantor/Grantee, Mortgagor/Mortgagee
        
        Vertical Privity
        
        Relationship between original party to a running covenant and the successor in interest to the original party
        
        in order for burden to run, privity of estate will only exist when the holder of the servient estate transfers all of his interest in the servient estate to the new owner
      - Intent
        
        The writing (SoF applies) must include language showing the parties' intent for the covenant to run with the land and bind successors interest
      - Notice
        
        The current owner of the servient estate must take w/ notice of the restriction
        
        requirement only on servient side
        
        Recordation w/ provide notice
        
        Actual notice (what you know)
        
        Constructive notice (recordation
        
        Inquiry notice (you learned enough info that would lead a reasonable person to inquire further, but failed to do so
      - Touch and Concern . . . the land
        
        Servient Estate: the restriction must reduce the use and enjoyment of the servient estate
        
        Dominant Estate: the restriction must increase the use and enjoyment of the dominant estate
    - - Touch and Concern the Land
        
        Burden must run with servient estate
        
        Benefit must run with dominant estate
      - Intent
        
        The writing (SoF applies) must include language that shows the parties' intent for the restriction to run with the land and bind successors in interest
        
        Note - if Plaintiff cannot show intent in the writing, they may still show it through common scheme
      - Notice
        
        Current owner of servient estate took with notice (actual, constructive, or inquiry)
    - - To create an implied reciprocal servitude, look for a filed declaration containing the restrictions (CC&R's -Covenants, Conditions, & Restrictions)
        
        Enforced - by original grantor; any purchaser affected by the common scheme or a condo/subdivision association for common land conveyed to it
      - No writing required (No SoF) because it is implied
      - Works for negative restrictions only
      - Can also impose by IRS by showing common scheme
        
        Factors showing common scheme
        
        a large percentage of lots expressly burdened;
        
        oral representation to buyers;
        
        statements in advertisements to buyers; or
        
        recorded plat maps or other declarations
      - IRS is imposed on any lot that does not contain the restriction if a common scheme was evident at the time of the conveyance of those lots.
    - - Written Release;
      - Merger of the dominant and servient estate;
      - Abandonement;
      - Estoppel; or
      - Changed circumstances so that the reason behind the restriction is no longer valid
  - - - Easement Checklist:
        
        Was easement properly created?
        
        What is the scope of the easement?
        
        Has the easement been terminated?
    - - Servient Estate
        
        The estate burdened by the easement (must always be one)
      - Dominant estate
        
        The estate benefited by the easement (there isn't not always one)
      - Easement Appurtenant
        
        Benefits a parcel of land; the dominant estate
      - Easement in Gross
        
        benefits a person or entity rather than a piece of land (no dominant estate)
    - - By express writing (SoF)
      - Implication
        
        Easement by necessity
        
        Two requirements
        
        (1) Common ownership of the dominant and the servient estate, then severance; and
        
        (2) Strict necessity for the easement at the time of severance
        
        Easement implied by prior use
        
        Four Requirements
        
        (1) dominant and servient estate were previously held in common ownership - but were then severed;
        
        (2) the use giving rise to the easement was in existence at the time of severance
        
        (3) the use was apparent and could be discovered upon reasonable inspection
        
        (4) at time of severance, easement was necessary for the proper and reasonable enjoyment of the dominant tract
        
        Easement by Plat
        
        a buyer in a platted subdivision acquires an implied easement to use streets, alleys, and parks in the subdivision
      - By Prescription (AP but for easements)
        
        if someone actually, openly, notoriously, and exclusively used land with hostile intent for the statutory period
        
        can't claim Easement by Prescription of "Light and Air"
        
        Note: difference between AP and EbP is that EbP is still just an easement
        
        AP gives title over the land
        
        EbP just gives you an easement (right to use) over the land
    - - If an express easement states a particular use, than that is the only allowable use
      - The holder of the easement may do what is reasonably necessary to maintain the easement, even if it interferes with servient owner's use of their property
    - - Destruction of Servient Estate
        
        generally, destruction of a servient estate will terminate an easement UNLESS the owner of the servient estate intentionally caused the destruction
      - Termination by act of Easement Holder
        
        Merger of Title
        
        occurs when the owner of the dominant estate also acquires the servient estate
        
        Written release
        
        Expressly terminates the owner's rights in the easement (must satisfy SoF)
        
        Abandonement
        
        Requires proof of intent to abandon and an affirmative act in furtherance of intent
        
        Estoppel
        
        The owner of the servient estate foreseeably and detrimentally relied on easement holder's action/abandonment
        
        Severance
        
        The owner of the dominant estate tries to sever the easement from the dominant estate (only easements appurtenant)
      - Termination by act of Owner of the Servient Estate
        
        Prescription
        
        Owner of servient estate interferes w/ the use of the easement for the statutory period
        
        The Servient Estate is Sold to a Bona Fide Purchaser
        
        Pays value and takes without notice
        
        End of Necessity
        
        For easement by necessity, the easement ends when necessity ends
  - - - i.e. permission to log certain trees
  - - - Exc: two kinds of licenses are irrevocable
        
        License Coupled with an interest
        
        the licensee purchases personal property that is located on the licensor's property and is given permission to come onto the land to claim that property
        
        Executed License
        
        The licensee expends $ or labor in reliance on the license; license is irrevocable until the person gets value out of the expenditure
  - - - Power to Zone - granted by statute; gives a political subdivision ability to divide its land areas into zones with permitted/prohibited uses
        
        Ordinances that do not conform with the granted power to zone are unauthorized
    - - Common Classifications: Residential; Commercial; Agricultural; industrial; Spatial; and mixed-use
    - - Must promote the public health, safety, prosperity, morals, or welfare
    - - Must be uniform for each class or kind of buildings and uses throughout each district, BUT the regulations of one district may differ from another
    - - Regs in each district may regulate, restrict, prohibit, and/or determine:
        
        Use of land, buildings, and structures
        
        Size, height, area, location, construction, repair, and remocal of structures;
        
        The areas and dimensions of land, water, and air-space to be occupied and open spaces to be left unoccupied; or
        
        The excavations or mining of soil or other natural resources
    - - Notice of Zoning Violations - when a property is found to be in violation of zoning code, the political subdivision will issue notice to property owner
        
        Cease and Desist: notice may contain a C&D from a certain use, or instructions on how to modify the property into compliance/
        
        If landowner does not bring land into compliance & does not cure the violation, the political subdivision may:
        
        obtain court order injuction to enforce notice;
        
        apply civil fines until compliance is achieved; or
        
        require a zoning violation to be recorded to alert potential buyers (some states)
        
        Challenges: NoZV must contain info on how to protest notice by appealing to the local board of zoning appeals
        
        Ts and Occupiers: owners are always liable for civil zoning violations, but so too are Ts/occupiers who is committing a violation
    - - In general
        
        Procedural Due Process
        
        Requires notice and an opportunity to be heard
        
        When owner receives NoZV, and appeals it to the local zoning board, there is a public hearing. If owner does not recieve relief, an appeal to the courts MUST be provided
        
        When owner request a variance from the zoning code, the owner is entited to a public hearing noticed to all who might be interested in the request. If no relief, an appeal to courts MUST be provided
        
        When owner takes the appeal the court reviews administrative decision to see if it was illegal, arbitrary or capricious, or unsupported by POTE
        
        Substantive Due process
        
        A zoning ordinance (ZO) violates SDP if it is arbitrary and capricious - not reasonably related to public health, welfare, or safety
        
        Equal Protections
        
        A ZO may give rise to EP challenge if similarly situated people are treated differently. HOWEVER, if no fundamental right is impacted, and where there are no suspect classification, the rational basis test applies
        
        First Amendment
        
        A ZO may be subject to a 1st Amen challenge if it regulates billboards or aesthetics
        
        Due process clause of the 14th Amend. provides for both procedural and substantive due process
      - Protection of Preexisting property rights - Takings
        
        5th Amendment provides private property shall not be taken w/o just compensation. applies to the states through 14th Amend
        
        Land use regulations are "takings" if they deny all reasonable, economically beneficial uses of their land
        
        The court considers the following:
        
        the regs economic impact on the claimant
        
        extent to which the reg has interfered with distinct investment-backed expectations; AND
        
        the character of the governmental action
    - - Rezoning
        
        If rezoning is inconsistent w/ comprehensive plan for the area, it MUST be based on change of condition of land, neighborhood, environment, or public opinion
        
        Rezoning of a piece of land is quasi-judicial and requires procedural due process - a boarder rezoning is legislative
        
        Owners may petition for rezoning to change classification: BUT a use variance or special use permit is much easier to obtain
      - Nonconforming Use
        
        NU is a use permitted by zoning statutes/ordinances to continue, despite the fact similar uses are not permitted in the area
        
        A NU may not be expanded or rebuilt after substantial destruction
        
        Local ordinances often prohibit the enlargement, alteration, or extension of a NU
        
        Some ordinances require a NU to be amortized (reduced) over a specified period, resulting in termination at the end
      - Variances
        
        Variance is the permission by a local zoning authority to use property in a way forbidden by the ZO to alleviate conditions peculiar to the individual property
        
        If Variance is sought from an area restriction
        
        owner must show that particular difficulties in meeting the ZO requirement OR that they are unreasonable/create undue hardship
        
        If Variance is sought from use restriction
        
        petitioner must show undue hardship - without a use variance, there is no viable use of the property
      - Special Use Permits
        
        Applicant for SUP is entitled to a public hearing that had been noticed to all who might have an interest in the application
        
        A SUP is required for uses impermissible in the zone, but would be beneficial to the public welfare and compatible w/ the area
      - Conditional Use Permits
        
        a CUP s required for uses impermissible in the zone, but would be beneficial to the public welfare and compatible w/ the area IF certain conditions are met
        
        granted only if applicant agrees to meet the added conditions
        
        Applicant for CUP is entitled to a public hearing that had been noticed to all who might have an interest in the application
      - Spot Zoning
        
        A parcel, or small are, may be zoned for a use/structure inconsistent with the rationale of the overall plan/ordinance
        
        Spot zoning is illegal when the zoning ordinance is designed solely to serve the private interests of a select few
      - Exactions
        
        An exaction is an approval to use in exchange for money or a dedication of land
        
        Dedication
        
        Land granted to the public or to a public entity can be accomplished by dedication, rather than by deed
        
        the grantor must use words or actions that clearly imply a present intent to transfer the land to the public, accompanied by some manifestation of acceptance by the public entity
        
        permissable ONLY if
        
        local govt can demonstrate that increased public need is causally related (essential nexus) to owner's use; AND
        
        the amount of the exaction is roughly proportional to the use cost
  - - - Lateral Support: the right of a landowner to physically support their land in its natural state by adjoining land
      - G.R. landowner has absolute right to lateral support - if adjoining landowner fails to provide lateral support to adjacent land owner they are strictly liable for damages they cause their neighbor
    - - Typical problem: owner of a parcel will sever the below- and above-ground estates and sell underground (e.g. mineral) rights to someone else; underground owner excavates causing above-ground structures to subside
      - G.R: the right of support extends to:
        
        land in its natural state; and
        
        buildings existing on the date when the subjacent estate was severed from the surface
        
        HOWEVER, underground landowner is liable for damages to subsequently erected buildings only if they are negligent
- - - - SoF requires writing for transfer or real property interest. Must be signed by party to be charged AND MUST inlcude:
        
        Description of property;
        
        Description of parties;
        
        Price; AND
        
        Any conditions of price or payment, if agreed on
        
        Exc to need for SoF: generally because there is other sufficient evidence to agreement and its terms
        
        Doctrine of Part Performance
        
        DPP: may be used to enforce an oral K of sale, provided the acts of part performance unequivocally prove the existence of the K
        
        Need to show at least two of the following:
        
        Payment of all or part of purchase price;
        
        Taking of possession; or
        
        Making substantial improvements
        
        Equitable and, under the modern trend, Promissory Estoppel
        
        either may be used to prove an oral K for the sale of land
        
        Equitable Estoppel - is based on an act or a representation
        
        Promissory Estoppel - is based on a promise
  - - - equitable title passes to the buyer
        
        Risk of Loss during bifurcation
        
        Majority Rule: risk of loss follows equitable title; thus risk is on the buyer
        
        Note: benefits also to the buyer - i.e. land value rises substantially
        
        Uniform Vendor and Purchaser Act (Minority rule): RoL remains w/ seller until the legal title OR possession passes to buyer
        
        If property is destroyed who's holding the bag?
      - legal title remains with the seller until the deal closes
  - - - MEANING - title delivered at closing MUST be reasonably free from defects in both fact and law (not perfect title)
        
        Common Defects
        
        unpaid mortgage or liens;
        
        covenant or easement that restricts use of the land;
        
        Title acquired be AP until the AP quiets title; or
        
        Existing condition on the land that violates a ZO
      - manifests at date of closing
        
        Thus - purchase of a house with a lien can still be merchantable if a portion of the purchase price is earmarked toward discharging the lien at the time or before closing
  - - - Covenant in land-sale K merge into the deed at closing
    - - Quitclaim Deed:
        
        Buyer cannot sue because this is an "as-is" deed (no warranties or covenants), and the seller conveys whatever interest they have
      - Warranty Deed
        
        General Warranty Deed
        
        contains all six covenants of title, which cover the period prior to sale. The seller warrants there are not defects in the chain of title
        
        Special Warranty Deed
        
        May contain some, or all, covenants and typically limits liability only to the period of the seller's ownership of the land - the seller warrants that no defects occurred during their ownership
        
        the buyer can sue on the deed through one of the covenants of title contained in the warranty deed
      - Merger Doctrine - Because the covenant of marketable title is implied in the K, and the k merges into the deed, the buyer cannot assert it and must sue on ant covenants now contained in the deed
    - - Present Covenants
        
        (1) Seisin
        
        the grantor promises they own the property - "I own this land"
        
        (2) Right to Convey
        
        the grantor promises they have right to convey it - "I can sell you this land"
        
        (3) Covenant against Encumbrances
        
        the grantor promises there are no encumbrances (visible or invisible) on property - "There are no encumbrances except the ones you know and accept"
        
        disclosed and accepted encumbrances don't count
        
        do not run w/ the land and can be breached ONLY at the time of closing - buyer's successors in interest are unable to sue on present covenants
      - Future Covenants
        
        (4) Quiet Enjoyment
        
        grantor promises the grantee will not be disturbed by a 3rd P asserting a valid claim to the land
        
        (5) Warranty
        
        Grantor promises to defend the grantee against any 3rd P claim
        
        (6) Further Assurances
        
        grantor promises to do everything reasonably necessary to perfect the grantee's title
        
        Run w/ the land and can be breached at closing OR afterword
  - - - duty to disclose material latent defects known to seller but not readily observable and not known to buyer
        
        applies to commercial building and developers of new homes
        
        some states extend duty to all sellers of home, new or used
        
        if seller fails to disclose OR has an ongoing duty to ensure premises is habitable - may lead to tort liability
    - - applies to sale of new or remodeled homes by builders and developers
      - does not apply to commercial structures
      - covers significant latent defect
      - defects must be discovered w/in reasonable time after construction or remodeling
  - - - Duty of disclosure - broker must disclose any info obtained beneficial to seller in negotiation the sale of the property
    - - Duty of loyalty requires broker to give their undivided loyalty to the buyer and to put buyer's interest's before broker's
      - Duty of obedience requires broker to follow the buyer's lawful orders
- - - - Most Common Land Security:
      - Definition: An interest in real property that is designed to secure performance of an obligation (usually repay a debt) - Must be in writing to satisfy SoF
      - Terms
        
        Mortgagor - Owner, Debtor, person borrowing money - issuing mortgage to the lender
        
        Mortgagee - Bank; Lender - creditor receiving the mortgage
      - Two Instruments that make mortgage
        
        Mortgage - document that represent an interest in the land (Lien on the property)
        
        Note - represents the personal obligation of the debtor to repay the debt (the K for the loan)
        
        Generally - the mortgage "follows the note" meaning if not has been transferred, the mortgage securing it automatically follows to the transferee
      - Types of Mortgage
        
        Deed of Trust
        
        Debtor's (settlor) borrow money from the creditor and executes a deed to the property - the deed to the property is given to a 3rd P (trustee) who holds the deed, returning it once debtor's pays up
        
        Purchase Money Mortgage (PMM) & Vender-Purchase Money Mortgage
        
        PMM
        
        a mortgage that covers part, or all, of the purchase price (e.g. as opposed to a mortgage obtained to remodel a kitchen)
        
        A PMM that is recorded has priority over other types of mortgages
        
        Notes on PMMs
        
        Vendor-Purchase-Money Mortgage (VPPM)
        
        buyer borrows money from a 3rd party (typically a bank) to pay off the purchase price and gives a mortgage - must be continuous occurrence
        
        PMM receives top priority over all other mortgages - PMM must be recorded to give constructive notice to future mortgages
        
        Future-Advance Mortgage (FAM)
        
        a FAM is any line-of-credit (e.g., construction loan) or home-equity loan where money can be borrowed as needed
        
        if lender (mortgagee) has discretion to advance funds depending on mortgagor's financial situation it is an Option FAM as opposed to an Obligatory FAM
        
        Most common issue: arrangement is excecated in present, but funds are not being accessed until a time in future - Q involves determining at what point mortgage attached to property?
        
        if proper notice is given to future creditors - the mortgage interest attaches when Obligatory FAM arrangement is made
        
        in Optional FAM, if mortgagee has notice when it makes the advance that a subsequent creditor has filed, then the FAM mortgage loses its priority
        
        Majority - actual notice requires
        
        Minority - constructive notice is sufficient to protect creditor
        
        Installment Land-Sale Contract
        
        The buyer buys land, agreeing to pay purchase price in installments
        
        buyer takes possession today - seller holds deed until debt is entirely paid
        
        Time is of the essence clause
        
        If K states time is of the essence, and the buyer is late on a payment, seller may enforce the clause keeping the land AND all payments to date
        
        Because of this HARSH outcome - Courts look to avoid this outcome and see if time really is of the essence
        
        i.e., if buyer accepted payment late once before, the court will waive the essence clause
        
        Absolute Deed or "Deed Absolute"
        
        a debtor borrows money then issues a deed to the property to the creditor that looks absolute on its face
        
        Extrinsic evidence would be required to establish that this was not meant to be an absolute conveyance, rather a disguised mortgage arrangement
      - creditor's remedies - choice to sue
        
        in personam: sue on the note; or
        
        in rem: foreclosing on the land through the mortgage
  - - - Mortgagee receives lien on property
      - Mortgagor retain rights to posses property and right to rents and profits from mortgaged property
    - - Mortgagee has rights to rents and profits produced by mortgaged property
      - Mortgagor retains possession until default
    - - Lien theory applies until default, then Title theory applies
      - Prior to default Mortgagor retains right to possession, rents and profits
      - Upon default, Mortgagee is entitled to possession, rents and profits
  - - - buyer "assumes the mortgage" - buyer becomes personally liable for it, along with the original borrower (secondarily liable); OR
        
        in each case, the mortgage remains on the land and is available if the mortgagee (lender) needs to foreclose on it
      - buyer "assumes the mortgage" plus a novation (new K) - the buyer alone is personally liable for paying the mortgage
      - buyer takes "subject to the mortgage" - buyer has no responsibility to pay on it, either before or after foreclosure
        
        exam tip: if language is ambiguous look to the facts to determine which type - if facts are silent default is subject to
    - - If debt falls into default, creditor can sue the grantor > and grantor can get court order compelling grantee to pay debt paid by grantor (exoneration)
      - if grantee has assumed, then the grantee is primarily liable and the grantor is secondarily liable
      - if grantor makes payment following transfer they may sue grantee for reimbursement
      - Subrogation: grantor is secondarily liable. can pay off debt to debtor, and then be subrogated to mortgage and note
    - - Gives mortgagee the option to require entire debt due and payable upon any transfer (enforceable if in the mortgage)
  - - - No right to prepay mortgage debt unless mortgage expressly authorizes it
      - If prepayment is permitted, it is usually costs an added prepayment fees, which are routinely upheld
    - - Mortgagor issues a deed in lieu of foreclosure, which takes subject to all mortgages on the property - jr. line holders are unaffected
  - - - Types of Foreclosure
        
        Private Sale/Power-of-Sale
        
        Occurs w/o judicial action, pursuant to a power-of-sale clause included in the mortgage document
        
        Judicial Foreclosure
        
        judicial proceedings with pleadings, service of process, etc.
      - Unlimited mortgage potential - no limit to the amount of mortgages one can take on a property
        
        "First in time, first in right" Principle
        
        Mortgages are paid of chronologically with the proceeds from a foreclosure sale. If there are mortgages remaining afterword they may obtain deficiency judgements
      - Deficiency Judgment
        
        When the foreclose sale raise less money than the amount of outstanding debt
        
        A piece of property has five mortgages on it: 1,2 3, 4, and 5. Creditor has a $100,000 mortgage on a piece of property (Mortgage 3). $100,000 Debtor falls into default and Creditor forecloses. $80,000 is raised and paid against the debt. Creditor can get a deficiency judgment for the $20,000 not retired at the foreclosure sale. Mortgages 1 and 2 are deemed to be senior interests. Mortgages 4 and 5 are junior interests. Senior interests are unaffected by a foreclosure sale. Whoever buys the property at the foreclosure sale buys it with mortgages 1 and 2 still attached. Junior interests will be discharged provided that they are properly notified and allowed to participate.
      - Acceleration Clause
        
        a clause making the entire debt due on the happening of an event, such as a default sale
      - Debtor's Remedy = Redemption
        
        Equitable Right of Redemption
        
        right automatically exists in interest of equity
        
        Exists any time before foreclosure sale. The debtor can redeem by paying off debt or bringing loan current - foreclosure sale terminates this right
        
        Statutory Right of Redemption
        
        Debtor may have window of time (6-12 months) after foreclosure sale to force buyer to sell the property back at foreclosure price.
        
        Redemption will stop the foreclosure if the debtor pays off all the debt (all payments due and feed paid)
        
        Note: if their is an Acceleration Clause (basically redemption required), the mortgagor can bring the loan current and avoid foreclosure
- - - - Physical
        
        Open
        
        Actual
        
        Notoriously
        
        Possessor must occupies land .>. in a manner sufficient to to put true owner on reasonable notice of a cuase action (trespass) against them
        
        Minority Rule: APer must also pay taxes
        
        Exclusively
      - Mental
        
        Hostile Intent
        
        can be satisfied in two ways
        
        Claim of right (calming land as your own)
        
        Color of tile (APer believes they have good title under deed but they do not)
        
        Permission to be on the grounds - destroys hostile intent
        
        Mere knowledge of the APer by owner does not imply permission
        
        When is encroachment hostile?
        
        Majority: a mistaken encroachment is sufficient hostile intent
        
        Minority: hostile intent exists only if person who encroached intended to encroach
        
        NOTE: Co-tenancy Issues
        
        difficult for a coT to AP against another - Only way it can be done is by one coT ousting the other coT from using land
      - Time
        
        Continuously - CL is 20 years, jurisdictions set the timeframe - question of fact based on the nature of the land and the its use
        
        Tacking
        
        Combines APers' periods of possession to meet statutory requirement - ONLY if one APer transferred property to another
        
        what's the typical use for this type of property
    - - G.R.: once a claim has ripened, APer can only claim the portion land actually occupied
        
        True Owner owns a 100-acre parcel and Adverse Possessor moves on to the parcel but only occupies 10 acres of the parcel for the statutory period. Adverse Possessor can only claim that 10 acres of the parcel and not the entire parcel.
        
        EXC:
        
        An APer who entered under color of title and occupies significant portion of the parcel described in the flawed deed is occupied to the whole property described at the end of the statutory period
      - APer usually only gets what current owner has
        
        If owner sold mineral underground rights to a mining company, leaves, and the APer comes and APs. They are not entitled to the subsurface rights
        
        Future interests cannot be obtained by AP until they become present possessory
        
        “A to B for life, remainder to C.”
        
        B has a life estate. During B’s life, B chooses not to use the property; an adverse possessor comes on to the land and adversely possesses against B. The adverse possessor only acquires B’s life estate and does not get the remainder interest in C.
    - - AP period begins once disability ends
      - a disability (infancy, incompetence, imprisonment) can suspend/toll the running of the statute of limitations if disability exists at the time AP starts
    - - True Owner
        
        can reject the APer and collect damages before statutory period has run
      - Adverse Possessor
        
        when APer begins, the APer is considered to be the owner against the world except true owner
        
        Once the statute of limitations runs, APer becomes the True Owner as of date they entered the land
  - - - Delivery of the Deed
        
        Ways to deliver the Deed:
        
        Grantor Retains the Deed
        
        Rebuttable presumption of no delivery - may be rebutted by extrinsic evidence that shows delivery was intended
        
        Grantor Gives Deed to a Third Party to Give to Grantee (escrow)
        
        Doctrine of Relation Back: Conveyance to the grantee relates back to date grantor gave deed to 3rd P
        
        Grantor Gives Deed to Grantee
        
        rebuttable presumption of delivery that may be rebutted by extrinsic evidence showing grantor did not intend present transfer
        
        delivery exists if the grantor has the mental intent to transfer the property to the grantee
      - Donative Intent
        
        grantor must intend to transfer an interest immediately to the grantee, if the grantor intend the deed to take affect upon their death, treated as a will
      - Acceptance of the Deed by the Buyer
        
        Acceptance presumed if transfer is beneficial to grantee - if grantee refused then no transfer
    - - Four Written Requirement for the valid deed
        
        Grantor's signature - no need for grantee to sign
        
        Sufficient Identification of the parties;
        
        Words indicating an intent to make a present transfer of the property;
        
        Sufficient description of the property; AND
  - - - if seller dies after executing sale K, but before closing, the decedent's personal representative must complete the transaction - money received goes to beneficiary who receives personal property, no real estate
    - - Ademption
        
        if real estate devised in a will, is not apart of testators estate at death - it is adeemed by extinction bene takes nothing
        
        adeem by satisfaction - testator devises property to bene they already gave them in life - bene already has property
        
        if gift of real estate was made during testator's life, but a general devise in the will, then real estate already received adeems by satisfaction unless
        
        will provides for deducting the gift;
        
        testator, in writing, declared the gift was part of the general devise; or
        
        devisee, in writing, acknowledged that the gift was part of a general devise
      - Exonoration
        
        Majority Rule:
        
        inherited real property is taken subject to all outstanding liens and mortgages
      - Lapse
        
        CL: if bene predeceases a decedent, any gift to the bene fials
        
        ML: many states now have anti-lapse statutes - bene's heirs "stand in their shoes"
  - - - "First in Time First in Right"
        
        Strong presumption of FITFIR - meaning first person who validly APs, Ks, or deeds presumptively owns. Recording Acts protect subsequent purchasers
      - Three Types of Recording Statutes
        
        Race Statute:
        
        the person who records first prevails
        
        easy - likely not tested
        
        Notice Statute:
        
        A bona fide purchaser (BFP) for value who takes whiteout notice of any other claim prevails
        
        Pays Value:
        
        Paying more than a nominal amount (i.e. purchase price or reasonable amount)
        
        beneficiaries of inheritance or gifts are not protected
        
        Types of Notice:
        
        Actual Notice:
        
        you actually know
        
        Constructive Notice:
        
        Comes through recording acts - as soon as you record a deed you give constructive notice to world that property is yours
        
        Inquiry Notice:
        
        arises from info learned or that could have been learned that would lead a reasonable person to inquire further
        
        i.e. if buyer fails to look visually inspect a property, they are considered on inquiry notice of any info they would have visually gathered
        
        Race-Notice Statute:
        
        An unrecorded conveyance is invalid against a subsequent bona fide purchaser who takes w/o notice and records first
    - - Tract Index (Minority view)
        
        a legal description of tract of land followed by chronological listing of all conveyances involving it
        
        You would immediately see any recorded conveyance and will always have constructive notice of a claim to property
      - Grantor-Grantee Index (Majority)
        
        two sets of books where the conveyance is recorded; one arranged by name of the grantor the other arranged by grantee
    - - Applies in situations where someone transfers title to property that they don't have but late acquire title
    - - Shelter Rule
        
        Provides protection for a subsequent taker who does not satisfy the applicable recording statute.
        
        A BFP who takes property for value, without notice of competing claims, is usually protected by the law, and those who take from that person “shelter” under that good title.
- - - - Fee
        
        Absolute
        
        Fee Simple Absolute: Best type of estate - holder has all possible rights a person may have in that parcel of land
        
        May last forever - alienable, defeasible, and descendible
        
        Termination: If the owner dies w/o a will or heirs, and property escheats to state
        
        Creation:
        
        "To A and his heir" (common law); "To A" (modern law)
        
        Defeasible
        
        Defeasible Estate: an estate that may terminate upon some happening or event before its maximum duration (forever in fee) has run
        
        Three Kinds
        
        Fee Simple Determinable (FSD)
        
        Created by durational language: for so long as, during, until, while, etc.
        
        2 more items...
        
        Termination: Automatic on happening of a named future event. The estate RETURNS TO Grantor
        
        Fee Simple Subject To a Condition Subsequent (FSSCS)
        
        Created by conditional language (provided however, however if, or in the event that) that serves to terminate the estate.
        
        2 more items...
        
        Termination: power of termination must be expressly reserved by grantor
        
        1 more item...
        
        Fee Simple Subject to Executory Interest
        
        Created by either duration or conditional language + coupled with a a third party's executory interest
        
        2 more items...
        
        Termination: occurs on happening of an the named event - property passes to someone other then the grantor
        
        Tail
        
        Fee Tail:
        
        Common Law: An Estate that descended to grantee's children only
        
        "A to B and the heirs of his body."
        
        Modern Law: Fee tails are disfavored and treated as FSA
      - Life Estate
        
        Life Estates: last for the duration of the grantee's life
        
        "A to B for Life"
        
        Life Estates Pur Autrie Vie: the duration of the estate is measured by the life of someone other than grantee
        
        "A to B for the life of C"
        
        As long as C is alive, B owns the property
        
        Note: If B dies before C, it becomes part of B's estate and will remain so until C's death
        
        Note:
        
        Multiple Lives: if life estate is measured by more than one life the Majority view is that the estate lasts until the death of the survivor
        
        Note: can also be defeasible
        
        "A to B for life, as long as B farms the land"
      - Term
        
        Term Estate: Is a non-freehold estate that is limited in duration
        
        "A to be for 50 years."
        
        "A to be for 1 year."
    - - Cotenancy
        
        Tenancy in Common
        
        No Right of Survivorship
        
        Equal ownership rights between more than one individual - each tenant owns an undivided possessory interest in whole of property
        
        Severance - TiCs are freely transferable, no severance
        
        Tenancy by the Entirety
        
        Minority view: Most states do not recognize this - they favor community property
        
        Property owned by married couples - created through deed or will but not descent
        
        Each spouse has an undivided interest in the whole of the property
        
        Right of survivorship
        
        Severance:
        
        Only occurs when
        
        spouse jointly convey to a third party
        
        one spouse jointly convey to other spouse; or
        
        Divorce
        
        Joint Tenancy
        
        Equal ownership rights between more than one individual - each has an undivided possessory interest in the whole of the property
        
        Severance:
        
        done by an inter vivos act of one of the parties
        
        Can seek a Partition action
        
        JT sells his interest in the property
        
        i.e. A, B, and C own property as JTs. If C sells their interest in the property, it severs the JT as to C, but remains intact as to A and B
        
        A JT with RoS CANNOT BE SEVERED BY WILL Not devisable or inheritable
        
        NOTE Severance of a JT creates a TiC - thus severance of JT eliminates the RoS
        
        a JT Mortgages his/her property
        
        Majority View (Lien Theory Jurisdiction)
        
        mortgage is viewed as a lien on the property, will not sever
        
        Minority View (Title Theory Jurisdiction)
        
        mortgage is viewed as a title on the property, will sever
        
        Leasing the property
        
        Courts are split on whether leasing a JT will sever it
        
        Right of Survivorship:
        
        Formation, Rights, Severance, and Duties
        
        Creation
        
        Traditionally, a joint tenancy required TTIP
        
        Time - JTs must take at same time
        
        Title - JTs must take by same instrument
        
        Interest - JTs must take equal shares of the same type; and
        
        Possession - JTs has the right to possess the whole
        
        Today, JT in most jurisdictions only require Interest and Possession
        
        TiC only requires unity of possession
        
        i.e. A and B own a parcel in TiC. A owns a 25% interest and B owns and 75% interest. Each owns the parcel of land - valid TiC
        
        Right of Survivorship
        
        if one co-tenant dies, the property automatically passes to the surviving co-tenant
        
        Modern Majority:
        
        conveyance of land to 2 or more people to jointly own property is presumed to create a tenancy in common, unless otherwise specified
        
        1 more item...
        
        Common Law:
        
        a conveyance to 2 or more people to jointly own property was presumed to create a joint tenancy, unless specified
        
        1 more item...
        
        you must use language demonstrating that you want the RoS to attach
        
        RoS takes precedent of a will or inheritance by intestacy
        
        if RoS a predeceasing co-T cannot devise their interest because the propty goes to surviving co-T(s), but if no RoS (tenancy in common), their interest it freely transferable and can be willed or inherited
        
        Partition
        
        Co-Ts have the right to seek partition of property
        
        Voluntary partition: done by exchange of deeds or selling the property and dividing the proceeds
        
        Involuntary partition: the result of partition action filed by another co-T in court
        
        Rights and Duties of Co-Ts
        
        Possession: each coT is entitle to possession of the whole property - if denied they can bring suit for damages/ejectment
        
        Profits: if profit is produced by one coTs efforts, then the other coTs have no right to share - unless ousted
        
        if Profits are generated by a 3rd party (i.e. rent), than all coT's are entitled to a share
        
        Expenses:
        
        Tax/Mortgage Payments: each coT must pat a proportionate share
        
        Repairs: no direct duty to repair; but, a coT who makes repairs may be compensated for amount of repair set-off against 3rd P profits or partition action
        
        Improvements: generally no duty to improve, and a coT who does cannot get contribution from other coTs
        
        Exc: if the property is sold, any amount attributable to the improvement goes to the coT who made it
      - LL/Tenants
        
        Types of Tenancy
        
        Term of Years
        
        Creation - Express agreement between LL/T for a term specified in the lease
        
        NOTE: a lease specified for three months, is still a Term of Years Lease
        
        Termination - Automatically at the end of the period; no notice is required
        
        Periodic Tenancy
        
        Creation - Expressly or by implication with a holdover tenant
        
        Termination - LL or T must give appropriate notice of intent to terminate
        
        Appropriate Notice:
        
        in writing, if the lease or state statute specifies, otherwise, oral is fine; and
        
        equal to rental period up to a max of six months
        
        Timing of Notice - CL only good if given first day of the rental period - ML notice can be given later, but if so, the timer starts at the start next rent period
        
        Tenancy At-Will
        
        Creation - Generally, by express agreement or the parties
        
        Termination
        
        (1) as soon as either party decides;
        
        No notice requirement
        
        (2) if either LL or T dies;
        
        (3) if either party attempts to transfer their interest
        
        no fixed duration and lasts as long as LL/T want
        
        Tenancy at Sufferance
        
        Creation - Holdover situation. A holdover T will be either a Periodic Tenancy or a Tenant at Sufferance
        
        Holdover T - a tenant who stays after the end of the agreed upon lease
        
        LL determines if T becomes PT or TaS
        
        2 more items...
        
        Termination -
        
        the T is a TaS until the LL can get them off the property
        
        Assignment and Subleasing
        
        LL's Transfer of Interest
        
        The LL of record, on the date the rent is due, is entitled to that rent
        
        i.e. if LL sells land during a tenants lease term, the next due rent payment goes to the new owner (LL1)
        
        Tenant Transfer of Interest
        
        Assignment:
        
        the T transfers all of the remainder of the interest (rental obligation) to a new party
        
        Creates an assignee
        
        1 more item...
        
        Sublease
        
        Sublease: T transfers less than the entire interest in the contract
        
        Creates Sublessee
        
        1 more item...
        
        Covenant to Pay Rent
        
        Can be enforced by LL against original T because of their K relationship
        
        If LL wants to enforce against new T then covenant running with the land must be met
        
        Key Point: Vertical Privity
        
        1 more item...
        
        If LL is not being paid rent (material breach of lease) LL can have sublessee or assignee evicted
        
        Transfer of Interest in Leases
        
        Generally, interest in leases are fully transferable
        
        If LL wants to prohibit ASS/SUB then LL must specifically state that in Lease
        
        Silent consent clause
        
        1 more item...
        
        Consent:
        
        where LL say they must consent to ASS/SUB and it doesn't set standards the LL may deny for any reason
        
        2 more items...
        
        Assignments can be made by both LL and T
        
        Exam tip: follow three steps when evaluation a LL/T problem
        
        (1) what type of tenancy?
        
        (2) what is the dispute?
        
        Rent
        
        Condition of the premises
        
        Possession of the premises
        
        Improvements
        
        (3) has the LL/T transferred their interest in the property?
        
        Creation Generally:
        
        A lease can be created both orally or in writing
        
        But, writing is required for a lease term longer than one year - SoF
        
        an implied lease may occur through conduct of the parties - e.g. where the written lease is never signed, but tenant pays ren periodically - periodic tenancy
        
        Common Disputes between LL/T:
        
        Fight over Rent
        
        How much LL can sue for?
        
        Tenancy for Years - T is liable for all unpaid rent in the lease
        
        i.e. TfY for 6 years - T leaves after 2 - LL may recover the remaining 4 years of rent from T
        
        2 more items...
        
        Periodic Tenancy - T is liable for rental obligation until proper notice termination is given
        
        Tenancy at Will: T is liable for the amount of rent stated in the agreement that is already owed - generally, under this type of tenancy, rent is usually not money i.e. T can stay as long as they garden the property
        
        Tenancy at Sufferance - T is liable for the reasonable rental value of the property
        
        NOT the lease agreement price - i.e. if a TaS had a monthly payment of 1K but now the market price would be 1.5K T owes that.
        
        T Defenses
        
        Failure to deliver possession - prior T still on land at start of new T's lease
        
        Majority rule: LL has an obligation to deliver possession of the premises
        
        Minority("American") Rule: LL has no obligation to deliver possession of the premises; the T must take it
        
        T has Been Evicted - if T has been evicted, it is an excuse for not paying rent.
        
        Actual Eviction - T is physically removed from all/part of the property - No Rent Owed
        
        Constructive Eviction - LL has allowed conditions on premises to deteriorate to point where T is essentially forced out. Use and enjoyment of the property is substantially impaired
        
        4 more items...
        
        T Surrenders Premises to LL - in order to claim LL must accept the surrender and retake possession
        
        LL typically required to mitigate damages via K law
        
        Destruction -
        
        CL generally, did not excuse payment of rent because the T was still in possession of land
        
        1 more item...
        
        ML: no distinction drawn between leasing all or a portion of the building - destruction will be a defense to payment of rent
        
        Warranty of Habitability - an implied warranty that premises are fit for habitation
        
        Majority: only applies to residential leases
        
        Minority: also apply to commercial leases
        
        Require LL to maintain premises in a habitable condition
        
        2 more items...
        
        Other K Defenses
        
        Impossibility, impracticability, and frustration of purpose
        
        Violation of quiet use and enjoyment of property
        
        Condition of the Premises & LL/T obligations to maintain
        
        LL Obs
        
        CL: Absent express promise, LL has no obligation to maintain or repair leased premises
        
        ML: an implied warranty of habitability and other statutory obs may apply
        
        Additional Liability in Tort:
        
        Tort landowner duties owed by the possessor (T) to (invitees, licensees, trespassers)
        
        2 more items...
        
        T Obs
        
        CL: no obligation to repair the leased premises
        
        Duty to avoid waste:
        
        Voluntary Waste: T is liable if the T intentionally/negligently damages property
        
        Permissive Waste: the T must take steps to guard against damage to the property
        
        Ameliorative Waste:
        
        2 more items...
        
        Fight over possession
        
        LL can retake property if T has committed a material breach of the lease
        
        CL: LL is entitled to use reasonable force to retake possession of the premises from the T
        
        ML (Majority): no use of force permissable - LL must use legal process
        
        Dispute Over Improvements
        
        CL: anything, except trade fixtures, affixed to land became part of the land
        
        trade fixture - any item used for T's business/trade
        
        Rule: Trade fixtures could be removed unless removal would cause substantial damage to the property
        
        ML: If the fixture can be removed without affecting the premises, the T is entitled to remove the fixture
        
        if fix can be removed, leaving premises in substantially the same condition, the T is entitled to remove the fixture before leaving
        
        if removable, T must remove before the expiration of the lease
        
        1 more item...
        
        Presumptions: structural changes cannot be removed
    - - Grantor:
        
        Possibility of Reverter
        
        Possibility of Reverter: a future interest in the grantor that follows a determinable estate (FSD)
        
        Creation: an FSD automatically creates a possibility of reverter; no special language needed - "silent reversion"
        
        Upon happening of the event, the land automatically reverts back to grantor
        
        Transferability:
        
        Common Law: The power of termination could descend through intestacy but could not be devised or transferred inter vivos (in life)
        
        Modern Law/Majority: The power of termination is freely transferable, devisable, and descendible
        
        Right of Reentry/Power of Termination
        
        Power of Termination (Right of Reentry): a FI in the grantor when the grantor attempts to create a FSSCS or a defeasible life estate
        
        Creation: Not automatic; must be spelled out in the conveyance or it does not exist
        
        "A to B, provided that B uses the premises for residential purposes, but if he does not do so, A may retake and re-enter"
        
        NOTE: usually two clauses needed to create
        
        Upon the happening of the event, property does not automatically revert - grantor must exercise RoR with affirmative steps to retake property
        
        Note: courts favor FSSCS over FSD to avoid automatic forfeiture
        
        Transferability:
        
        Common Law: The power of termination could descend through intestacy but could not be devised or transferred inter vivos (in life)
        
        Modern Law/Majority: The power of termination, devisable, and descendible - However, the PoT is not transferable inter vivos
        
        Reversion
        
        Reversion: A future interest retained by the grantor when the grantor transfers less than a fee interest to a third person
        
        "A to B for Life"
        
        a has given a life estate to B. Property return to A upon B's death.
        
        "A to B for life, then to B's oldest child for life."
        
        After B's oldest child dies, there will be a reversion to grantor A
        
        "A to B for 10 Years."
        
        Reversion back to A in 10 years
        
        A to B for life, then 10 years after B's death to C."
        
        A is granting a life estate to B C a remainder interest. During the 10-year period there will be a silent reversion to A
        
        Transferability:
        
        CL: PoT could descend through intestacy only
        
        Modern Law: PoT is freely transferable, dividable, and descendible
        
        Not subject to RAP: already vested
      - Grantee:
        
        Executory Interest
        
        EI: A future interest in a third person that cuts short the previous estate before it would naturally end
        
        Two kinds of EI:
        
        Shifting:
        
        Interest passes from one grantee to another
        
        1 more item...
        
        Springing:
        
        Interest passes from a grantor to a grantee
        
        1 more item...
        
        NOTE: because a fee can last forever, an future interest created in a third party following the granting of a fee will ALWAYS BE an executory interest.
        
        "A to B so long as liquor is not served on the premises in B’s lifetime. If liquor is served on the premises in B’s lifetime, the property will pass to C.”
        
        “A to B for life. If B stops using the premises for farming, then to C.”
        
        Remainder
        
        Remainder: a future interest created in a third person intended to take effect after the natural termination of the preceding estate
        
        Contingent
        
        Contingent Remainder: A remainder that has not yet vested
        
        "A to B for life, then to the oldest child of C then living."
        
        1 more item...
        
        "To A for life, then to C."
        
        Vested
        
        Vested Remainder: remainder vests at the point it is (1) created in an ascertainable person, and (2) Is not subject to any condition precedent, other than preceding estate
        
        "A to B for life, then to C."
        
        1 more item...
        
        Special Types of VR:
        
        2 more items...
        
        Rules Affecting These Interests
        
        Minority Rules
        
        Doctrine of destructibility of contingent remainder
        
        Doctrine of Merger
        
        Rule in Shelley's Case
        
        Doctrine of Worthier Title: it is worthier to take by descent than by devise, meaning grantor cannot create a remainder in their heirs
        
        A rule of construction, not law
        
        "A to B for life, remainder to A's heirs."
        
        Whether or not A included "remainder to A's heirs," the property would have gone to A's heirs via a reversion. Should pass by descent rather than the devise
        
        Waste: Determines what someone who owns land can or cannot do with it
        
        Owner in fee - can do whatever they want
        
        Owner of less than fee - cannot commit waste
        
        Three types of waste:
        
        Voluntary Waste: a life tenant cannot intentionally/negligently damage property. If they do, they are liable for the damage
        
        Permissive Waste: a life tenant must take reasonable steps to avoid damage - failure constitutes permissive waste - LT liable
        
        i.e. LE tenant of a property in Florida does not put up their hurricane season storm windows. A hurricane comes, the tenant flees and the home is damaged. - permissive waste
        
        Ameliorative Waste: A life tenant makes improvements to the land
        
        Common Law: life tenants were not allowed to make substantial alterations unless authorized, and could be held liable for costs of restoration to prior condition
        
        Modern Law: life tenants is now allowed to commit ameliorative waste if;
        
        2 more items...
        
        WASTE ALSO applies to mortgagor/mortgagee relationships and LL/T relationships
      - Special Problems
        
        Rule Against Perpetuities (RAP)
        
        Common law RAP provides "no interest is good unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest."
        
        RAP deals solely with possibilities - if one can interpret a future interest conveyance where someone could be claiming more than 21 years after everyone currently alive connected to the grant is dead, it violates the rule
        
        "A to B so long as the property is used for residential purposes. If not, then to C"
        
        RAP knock out "then to C." Leaving a FSD, with reversion in A.
        
        Steps to deal with RAP problem
        
        (1) identify the type of interest - make sure RAP applies
        
        5 more items...
        
        (2) Can you interpret the facts so someone can claim an interest more than 21 years after everyone currently alive is dead?
        
        2 more items...
        
        Purpose: the law does not want land tied up forever with ridiculous contingencies that could go perpetually - the rule tries to limit contingencies on ownership of land
        
        Application
        
        RAP does not apply to present possessory estates
        
        RAP only applies to three future interests:
        
        Executory interest;
        
        Contingent remainder
        
        Vested remainder subject to open
        
        RAP to two other interests
        
        2 more items...
        
        Restraint on Alienation
        
        "A to B for life, but if B tries to sell his interest, then to C."
        
        Total Restraint
        
        Partial Restraint
        
        Purchase options - Right to first refusal (both valid if reasonable)
        
        Reasonable: Courts consider the restraints limits in scope or time, its purpose, the legitimate interests of the party, and if restraint is support by consideration
        
        Purchase option
        
        "A to B and heirs, but A reserves the right to buy back the property at any time during A's life."
        
        Right of first refusal
        
        "A to B and her heirs, but if B ever attempts to sell during A's life, B must first offer the property to A at the same price."
        
        On a fee: this will generally not be valid
        
        On less than a fee: this will be upheld if reasonable
        
        "A to B. but if B ever tries to sell the property, then the property will revert to A."
        
        Conflicts of Law related to real property
        
        is the property interest movable or immovable?
        
        Property closely connected to the land is immovable - otherwise it is movable
        
        Law of Situs (the state the property is in) governs all rights in land and other immovable
        
        validity and effect of the conveyance - situs
        
        Mortgages, their creation, validity, and foreclosure are governed by the law of situs
        
        Exc: the underlying K is governed by the law of the place of its making.
        
        Liens (i.e. mechanic's or laborers' liens) are governed by the law of situs