Property Prison

Trespass & Servitudes

100

Unprivileged intentional entry on property possessed by another

Trespass

200

What are exceptions to trespass (when is trespass legal)?

• Consent of the owner (obvious)
• Necessity (prevents more serious harm to person or property)

300

Injury or interference with personal property of another.

Trespass to Chattels

400

Explain the Public Trust Doctrine.

The state holds land covered by tidal waters in trust for use by the public

In other words, the state owns the land for the benefit of the public and gives the public the right to use the land

Members of the public have a right to use this land for navigation, fishing, and recreational activities

500

What is servitude?

Right or obligation that runs with the land. AKA the right/obligation passes on to the next owner.

600

•Issabella and Lucianna own land that is adjacent to one another. The two shared coffee together every morning. One morning, Isabella and Lucianna were talking about how much they hated playgrounds on residential property. Soon after, they agreed, in a writing, signed by both parties, with a clause saying that they intend to bind their heirs and or assigns, to never erect playgrounds  on their respective properties. The agreement was recorded.

•Years later, Lucianna sells her property to Joe, a single father of two. Joe starts to build a massive playground in the backyard for his kids. Lucianna did not tell Joe about her agreement with Isabella.

•Isabella saw Joe begin to build the playground. Isabella immediately filed suit for an injunction to prevent Joe from building the rest of the playground.

•If you are the presiding judge, will you grant Isabella an injunction? (Hint: an injunction is an equitable remedy).

Here, Isabella sought to obtain equitable relief, an injunction. We care about notice. Joe was under constructive notice of the covenant. A judge would likely grant Isabella's request for relief. 

Creating a covenant that binds successors:

1.Agreement in writing;

2.Parties intended it to be binding on future;

3.The covenant touched and concerned the land; AND (this just means that the promise affected the use or value of the land itself. Ask yourself, is the promise obligating the land or an individual).

4.Privity or notice (Depends on what the claimant seeks)

   a.Real Covenant: OR

     i.There is privity of estate between the parties;         or

     ii.Parties had simultaneous privity. (concurrent         ownership; leasehold)

   b.Equitable Servitude:

     i.The covenant can be enforced w/o privity if the       current owner bought the land with notice of the       restriction on the land.

*Note on Privity (Haley was told that privity won’t be on the exam)

700

List the five different ways to form/establish an easement.

1)Easement by Estoppel - The servient estate owner is [e]stopped from revoking an easement when: The landowner granted the claimant permission to use the property; the claimant reasonably and foreseeably relied on the grant; in that reasonable reliance, the claimant actually changes position; and there would be substantial injustice to revoke or not create the easement. Triggers: Oral agreement/agreement not complying with Statute of Frauds (deficiency); Reliance on continued consent to use of the easement; and Fraud/misrepresentation (in some jurisdictions).

2)Easement by Prescription - This is essentially adverse possession, but for a little baby easement.To win, the claimant must show that they adversely, openly, and continuously used the land for the required SOL.

3)Easement Implied by Prior Use - Trigger: Severance/division of land. The land use to be one big parcel. What is now two parcels was formerly used as one. The use was obvious and apparent, and one of the parcels now reasonably needs to continue using the land for enjoyment of the estate.

4)Easement by Necessity - Trigger: Severance of an estate + one parcel is now landlocked (stuck).

5)Express Easement (SOF)

800

What are grounds to challenge covenants?

• Reasonableness/public policy (Davidson) (Nahrstedt)
• Constitutional Violations
• Discrimination Fair Housing Act
• Restrictions on Alienability
• Unreasonable Restraint of Trade

900

Dorothy Developer owns a large tract of undeveloped land. Dorothy Developer begins construction on a residential subdivision on of the tracts of land. In the plat, Dorothy includes a covenant that the parcels must be used for residential purposes. Dorothy divided the tract into 50 lots. Dorothy quickly sold 40 of the lots. Then a recession hit and no one wanted to buy the lots anymore.

Barbara approached Dorothy and makes an offer to purchase the remaining lots so long as Barbara may use one of the ten homes exclusively as a photography studio.

Dorothy Developer comes to you. She says that she went to law school for a year, and took Professor Lynch’s property class, before she found her passion in developing real estate. She remembers something about this issue, but cannot put her finger on it.

All in all, Dorothy asks you what are some potential consequences of accepting Barbara’s offer.

Common Interest Developments – many owners are bound by a covenant (rights and obligations).

Implied Reciprocal Negative Servitudes - When the owner of real property subdivides and sells lots with the intent to create a common plan/scheme, then the covenant(s) made to the seller benefit all parcels and all parcels within that scheme are bound.

 *Remember, a covenant is the promise of the new landowner to restrict their use of their land

 *Policy – all owners are 3rd party beneficiaries, even if they did not make the covenants directly. We do not want someone hijacking the common scheme.

1000

In terms of a shared driveway:

Which is the dominant estate?

Which is the servient estate?

Which is the dominant estate? A

Which is the servient estate? B

Dominant - The estate or property that is benefiting from the purpose. AKA benefitted estate.

Servient - The estate (or property) that is SERVING a purpose. AKA burdened estate.

*note:  Who is benefited? An Estate - Appurtenant servitude. An individual - In gross servitude

The obligation runs with the land, but not the benefit.

1100

What are the elements of affirmative and negative servitudes?

Affirmative Servitude

• AKA Easement
• Owner gives right to another to use owner’s land for limited purpose
• E.g. right of way – right to use another’ land to enter or exit somewhere.
• E.g. profit – right to collect resources from the land

Negative Servitude

• AKA Covenants
• Owner agrees to restrict their own use of their own land
• E.g. not to use land for commercial purposes
• E.g. not to build anything that would cast shadow over another property.

1200

What are the elements of express agreements and when do they run with the land?

Elements

SOF – interest in land

Needs to be in writing

Signed by the grantor

Describe the land

Describe the grantee

Runs with land if:

• 1. Agreement in WRITING
• 2. The subsequent owner has NOTICE of the easement at the time of the purchase
• 3. Parties to the agreement intended for the easement to run with the land

1300

Easements last forever unlessssssss?

• They write each other a break up letter (mutual agreement in writing)
• They only wanted to date until summer ends. (Mutual agreement decided at the time of formation (e.g., easement to last for ten years)).
• When the owner of the servient estate buys the dominant estate, then the burden is essentially wiped out (merger) [I could not think of a funny one for this ].
• The benefit holder ghosts the burden holder (conduct of the owner of the easement shows an intent to break up | abandonment).
• When the hot quarterback steals your girl right in front of your face. (Adverse possession/prescription).
• For whatever reason it is just not working out (frustration of purpose – easement no longer serves its purpose).

1400

How do you create a covenant that binds successors?

1. Agreement in writing;
2. Parties intended it to be binding on future;
3. The covenant touched and concerned the land (This just means that the promise affected the use or value of the land itself. Ask yourself, is the promise obligating the land or an individual); and
4. Privity or notice (Depends on what the claimant seeks) Real Covenant: There is privity of estate between the parties; or parties had simultaneous privity. (concurrent ownership; leasehold)
   OR Equitable Servitude: The covenant can be enforced w/o privity if the current owner bought the land with notice of the restriction on the land.

1500

Property Professor invites a group of students to have dinner at her house. Upon their arrival, the students begin to criticize the Property Professor’s cooking skills. Property Professor is offended by their criticism and asks them to leave her house at once. If one of the students remains in the Property Professor’s kitchen after she has asked him to leave, has he committed a criminal trespass?

Yes, because the key distinction between a civil and a criminal trespass is the knowledge that land belongs to another and that you are not privileged to enter such land. Once the student knew he was no longer welcome to remain in Professor Property’s house, his continued presence constitutes a criminal trespass.

Ownership 101

100

Ellie and Finnick want to purchase Blackacre from Gary. Ellie and Finnick call up their local solo-practitioner, Harrison, who “is an expert in all areas of the law”. Harrison drafts a written deed that he thinks will transfer Blackacre from Gary to Ellie and Finnick for the agreed upon purchase price. The deed states as follows:

This deed made this 27th day of April, 2023, by and between Gary, party of the first part; and Ellie and Finnick, parties of the second part:

WITNESSETH, that in consideration of $150,000, the party of the first part does hereby grant and convey unto the parties of the second part, as joint tenants unto the survivor of them, their heirs and assigns, in fee simple, all that lot and ground situate in the County of Acre, State of Maryland as described as follows:

BEING KNOWN AND DESIGNATED as lot No. 27 as shown on the plat entitled BlackAcre Section III which play is recorded among the Land Records of Acre County, Maryland in Play Book No. 90, folio 14. The improvements thereon to be known as No. 42723 Blackacre Court.

BEING the same property conveyed to Gary from Professor John Lynch, by Deed dated September 17, 1997, and recorded on October 1, 1997, in Liber 2574, Folio 0585.

Ellie and Finnick, who are beyond pleased with the deed, sign it immediately and return it to Harrison. Harrison promptly sends the deed to the recording office.

You are a clerk for Acre County Land Records. Your boss asks you whether or not the deed satisfies the Statute of Frauds. What do you tell your boss?

No, Harrison you're not that great. 

•Gary, the Grantor, did not sign the deed.

•Gary is a party to be bound by the agreement. Here, he is arguably the most important party to be bound.

200

Fraud makes a deed _______.

Forgery makes a deed _______.

Voidable;Void

300

Ginny lives in a little house in The Woodlands, where the statutory period is 15 years. One day, Ben comes in, tosses Ginny out on her ear, and takes possession of the house, holding himself out as its owner. After five years, however, Ginny comes back, with a black belt in karate, and chases Ben off the premises. A year later, Ben regains possession and puts up an electrified fence to keep Ginny at bay. Eleven years after Ben regains possession, he claims title by adverse possession. Does he have it?

No, because his possession has not been continuous. Ginny and her karate skills “interrupted” the running of the period; thus, when Ben got possession back, the period started from scratch. It will be another four years before Ben gains title by adverse possession—he gets no credit for the first five years of his occupancy.

400

Under this doctrine, when a grantor conveys property that he does not own to another, and then he eventually actually receives title, the ownership is vested in the grantee.

•Estoppel by deed

•If the grantor conveys property that he doesn’t have and then actually receives title, ownership is vested in the grantee 

500

In relationship to adverse possession what is the difference between obtaining adverse possession with color of title v. claim of title?

•Color of Title - What the (defective) deed purports
to convey

•Claim of Title - Whatever AP occupied
“Stake your claim”

600

Division of land that may be voluntary or involuntary. It may be in kind (physical division) or in sale (just like it sounds, you sell it).

Partition

700

When is a tenancy by entirety's right of survivorship severed?

On agreement, death, or divorce.

800

How is joint tenancy created and what happens if you sever?

How is it created? You need four unities:

• Time – the interest is created at same moment in time
• Title – same instrument used (e.g. deed/will)
• Interest – EQUAL interest, equal fraction/percentage, duration
• Possession – right to possess the whole parcel

What if you sever a unity?

• The interest reverts to a tenancy in common
• Fair? NO. So some states recognized the issue and created a statutory prohibition or constraints.
• Severance occurs only between the selling owner and the remaining owners; it does not change the relations of the remaining owners among themselves.

900

What are the common features of joint tenants, tenancy in common, and tenancy in the entirety?

• Each tenant has the right to possess the entire parcel
• Each tenant has the right to share profits from the property
• Each tenant has the obligation to contribute to maintenance/mortgage cost/property taxes, etc.

1000

How is tenancy in common created, transferred, and terminated?

• How is it created? Explicitly; tenancies are also classified as tenancies in common by default where the terms are ambiguous.
• What can be transferred? Only the tenant’s own interest in the property. E.g. if the tenants owns a ½ interest, she can only transfer that.A potential buyer might not like this because they don’t want to own property with other owner
• How is it terminated? Through transfer or partition (physical division of property or division of proceeds from the sale of property) (voluntary or involuntary)

1100

What are the requirements of adverse possession?

-Actual possession: physically occupy the property (jurisdiction may state specific actions that the AP must take, e.g., fencing, building, farming, clearing the land, planting trees/flowers/bushes, and other acts that make it seem like the AP is treating the land as one’s own).

-Open and notorious: must be visible and obvious enough to put the true owner on notice (most common example is when neighbors or other community members consider the claimant to be the true owner based on conduct towards the land) It is not necessarily that the real owner knew about the use – they should know what is going on with their own property.

-Exclusive: claimant is the only one to possess the land. This doesn’t require the complete exclusion of others from the land (I.e. if you are pretending to be the real owner, a real owner would invite friends over. Also, it can be established if the claimant actively excludes the true owner.

-Continuous: regular, routine conduct towards the property over a period of time. Doesn’t need to be 24/7—can be seasonal, weekly, etc. so long as there is some regular use during the statutory period. This is where tacking comes in—but the claimant can only use adverse possession of individuals “in privity” (having some legal relationship to the property), usually prior owners of the property

-Adverse/hostile: possession is without the true owner’s permission. Again, does not require the actual exclusion of the true owner (although this may occur in some cases)—conduct must be sufficient to interfere with the true owner’s use and enjoyment of the property and must be viewed objectively. Look at true owner’s and adverse possessor’s state of mind (Look at jurisdiction)

-Statutory period: the amount of time the possession must have occurred

1200

Richard owns Whiteacre and wants to convey it to his children, Ben and Emily. He conveys an interest in Whiteacre “to Ben as joint tenant with me, and with the right of survivorship.” The next day, he conveys an interest in the same property “to Emily, as joint tenant with Ben, and with the right of survivorship.” At common law, do Emily and Ben hold as joint tenants?

No, because two of the four unities required to create a joint tenancy are not satisfied— time and title . A joint tenancy requires that the interests in the property vest at the same time (here, there is a one-day difference). Furthermore, the interests must be created in the same instrument . There are two separate conveyances here. (Note that the language—“as joint tenants with the right of survivorship”—is the typical language creating a joint tenancy.) Because the joint tenancy fails, Ben and Emily will be considered tenants in common. Each has an undivided interest in the whole property without the right of survivorship.

1300

Martin, Nick, and Fred are joint tenants in Blackacre. Nick transfers to Donna a life estate in Blackacre, remainder to himself. Is the joint tenancy destroyed?

Yes. A conveyance will destroy a joint tenancy, even though it was not a conveyance of the conveyor’s entire fee interest. Thus the transfer of a lesser interest, like a life estate, will sever the tenancy, leaving the “default” tenancy—a tenancy in common. So after the transfer, Martin and Fred are joint tenants as to two-thirds of Blackacre, and together as one unit are tenants in common with Donna in Blackacre. Donna has a life estate in one-third of Blackacre. (Nick isn’t a tenant at all; he has a reversion interest in Donna’s one-third, and he’ll become a tenant in common with Martin and Fred [who are joint tenants as between themselves] when Donna dies.)

NOTE: Nick’s conveyance doesn’t destroy the joint tenancy as to the two remaining joint tenants, Martin and Fred, but only between Donna and the two of them, as to the one-third interest Nick conveyed to Donna.

Exciting Estates

100

True or False:
If five people own a plot of land together as JTWROS and one of them dies, then the four remaining owners will each hold a ¼ of the interest as tenants in common.

FALSE – yes, they would each own 1/4, but as joint tenants.

200

Name the three types of vested remainder (vested remainder means we know who it is at time of initial conveyance).

*remainder interest is a future interest*

• Absolute vested remainder – remainder not subject to change (to A for life, then to B)
• Vested remainder subject to open – some persons receiving interest are ID’able but interest may be divided among additional persons in the future (O to A for life then to B’s children. B is alive and has one child.) People who want land now and they want more kids in the future. Closes at death of grantee (A).
• Vested remainder subject to divestment – recipients may not receive the interest if specified event occurs following conveyance or if condition not met (O to A for life then to B as long as B uses land for farming).

300

Under a JTWROS, if a joint tenant mortgages the property, then in a _______ __________ jurisdiction the unity of title will be severed.

However, in a __________ __________ jurisdiction, the unity of title will not be severed.

If one of the four unities is disrupted, then the JTWROS will revert to a ___________ ____ ___________. 

Title Theory; Lien Theory; Tenancy in Common

400

Nick and Morgan are in love and purchase a home. They title it as Tenants in Common. Nick pays all of the expenses for the maintenance and upkeep of the home. He also covers the entire mortgage.

Nick and Morgan break up…. Its ugly.
Nick is feeling like a bachelor and wants to move to Miami. To do so he must sell the house. Partially out of spite (bc Morgan cheated on him) Nick wants to force the sale of the home. Morgan does not want to leave.

Does Nick have any recourse?

Maybe. 

Judicial accounting – during ownership or during action for partition. Makes co-owners pay their portions of required expenses or forces one to pay over any profits… that’s what happens when you share the bundle of sticks! Make sure they did not agree for Nick to pay everything.

500

Name the four ways to make present and future interests

• By Will
• By Sale
• By Lease
• By Trust

600

Explain what a contingent remainder is. 

*remainder interest is a future interest*

You need either or both of the following:

1. Remainder if something happens (that’s the condition) or/and

2. The person who would take the remainder cannot be ID’ed.

Features EITHER a condition precedent or a condition subsequent. Condition precedent: something must occur before person w/ remainder interest can receive the interest (e.g. to B when he turns 21)

700

Type of fee simple defeasible in which the future interest may revert to someone other than the grantor – in other words, if the condition occurs, the future interest goes to a designated third party rather than reverting to the grantor. May contain either words of duration or words of condition. Occurs where the future interest is either going to divest  the grantee (A) of their interest; or rise out of the grantor to become possessory to another.

*present possessory estate*

Fee Simple Subject to executory limitation (springing or shifting)

800

Type of fee simple that means cut short, future interests that automatically terminate when a specific condition or event occurs.

*present possessory estate*

Fee Simple Defeasible

900

Type of fee simple in which there is no future interest because owner has full control. The Estate is left to another person and that person’s heirs indefinitely, not subject to any conditions. Look for: O to A, O to A and his/her heirs, O to A in fee simple

*present possessory estate*

Fee Simple Absolute

1000

Type of fee simple defeasible that if you break the terms, then the grantor needs to assert right to reenter (presumed). When the condition occurs, the future interest may revert to the grantor if the grantor decides that it should do so (reversion not automatic). Look for words of condition: on condition that, but if, provided that, etc.

*present possessory estate*

Fee Simple subject to condition subsequent

1100

Type of fee simple defeasible that if you break the terms, then the interest jumps automatically. When the condition occurs, the future interest automatically reverts to the grantor. Look for words of duration: so long as, during, while, until, etc.

*present possessory estate*

Fee Simple Determinable

1200

Fill in the blank:

• ______ – third party takes away interest from original grantee/recipient (e.g. O to A and his heirs until crops start to grow, then to B and his heirs.)
• ______ – third party takes interest from the grantor (O to A if A graduates from law school). Rise out of the grantor to someone else.

Shifting; Springing

1300

Type of estate that lasts the life of grantee; or pur autre vie (life of another) – because of CL issues, it might be inheritable for a short time. Held during interest holder’s lifetime. 

*present possessory estate*

Life Estate

*note:  Person who owns it during their life is known as Life Tenant. Measurable life is either:

• The grantee (demonstrates life of grantee life estate), OR
• A third party (this is Life Estate Pur Autre Vie). E.g. you own it while grandpa is alive.

1400

O’Malley was the owner in fee simple of Blackacre. As a gift, O’Malley delivered to Abel a deed to Blackacre; the deed read, “to Abel and his heirs.” Abel recorded the deed as required by local statutes. Abel then delivered a deed to Blackacre to Barbara, who recorded it. Abel then died, leaving as his sole heir his son, Callaway. Who owns Blackacre?

Barbara. The gift “to Abel and his heirs” does not mean “to Abel for life then to his heirs.” Instead, “to Abel and his heirs” means “to Abel in fee simple .” Therefore, Abel had the right to do whatever he wished with the property, and his deed of it to Barbara was effective. Thus when Abel died, he had no interest in Blackacre to leave to his son and heir.

1500

O conveyed Blackacre “to A for life, then, if B is living at A's death, to B in fee simple.” Immediately after this conveyance, what interest, if any, does B have in Blackacre?

Contingent remainder. A remainder is contingent rather than vested if it is either subject to a condition precedent, or created in favor of a person who is unborn or unascertained. Here, the remainder to B is subject to a condition precedent (the condition that B survive A in order for his remainder to become possessory). If B does survive A, his remainder will become vested at the same time it becomes possessory.

Zoning, Takings, Nuisance, and Mortgages

100

If the government wants to take private property using a condemnation action, then the private owner is entitled to _________ __________.

JUST COMPENSATION

 Defined: must pay fair market value before taking

 What would the property sell for on the open market?

 Look at damage suffered by owner; benefit obtained by government is irrelevant

 Other compensation allowed by federal statute:

 - Moving costs

 - Lost personal property resulting from the move

 - Reasonable expenses sustained while searching for a new location for a business

 - Extra compensation for taking of personal residence (Statutory)

200

True or False:
You can take adverse possession of government owned property.

-False (usually)

Some states took away the government’s immunity via statute (maybe the legislature wanted to encourage the use of the land)

Some states have altered the common law to promote public policy considerations

300

As it pertains to regulatory takings, what are the three ad hoc factors?

•Economic impact - The greater the decrease in value, the more likely a taking is present. Complete deprivation leans toward a finding that a taking has taken place, but not if the regulation prevents the owner from asserting a right that did not exist (creates nuisance –  negative effect on health, safety, or property rights of the public). Compare value taken from the property with value that remains

•Interference with reasonable investment-backed expectations. Look at how much the P has invested based on reliance on the regulation. What did P expect to get as a result of its investment? Does the regulation prevent P from achieving this objective/obtaining the benefit sought? (ask yourself what is the primary use of the property) If so, to what extent? Taking less likely if regulation only prevents P from obtaining the expected benefit in the future or results in a loss of future opportunities

•Character of government action - More likely to be a taking if the regulation’s action looks like physical invasion of property. But if regulation is intended to confer some benefit, like promoting the general welfare, P is less likely to succeed on takings claim. Broad regulations lean toward a win for the government. A regulation that permits or facilitates public functions leans toward a win for the P.

400

Owen owns and operates a property consisting of four row houses in Baltimore, MD.

In addition to leasing out some of the units, Owen (in accordance with the existing zoning regulations at the time) also leased part of the building out to a small bakery that prepares gluten free food. 

In 2008, the bakery shut down. Owen wanted to keep up business and found another commercial tenant. This tenant operated a restaurant.

In 2010, the zoning ordinance changed to not allow restaurants in that district. In 2015, the restaurant is destroyed by a small, but substantial, kitchen fire. 

Owen comes to your firm asking if he can rebuild the restaurant in accordance with it’s prior nonconforming use. What do you tell him?

Generally, you can lose your nonconforming use defense if defined in the local code especially looking at time and use of type - abandonment; discontinuance; substantial damage or destruction. 

500

What are the two types of zoning?

• Use Zoning – how property is used, irrespective of size. E.g. agricultural, residential, commercial, industrial
• Area Zoning – how/where buildings, if any, may be constructed, irrespective of use. E.g. height, distance from road, location near water

*note READ EUCLID

600

What are SLAPP suits and SLAPP backs?

• SLAPP Suits - Strategic Lawsuits Against Public Participation. Developers bring lawsuits against community groups to intimidate them. E.g. defamation
• SLAPP-back - The community groups are mad and they counter sue the developers for malicious prosecution. Rule 11 sanctions

700

When can you lose your nonconforming use defense?

Defined in local code – especially looking at time and use type.

• Abandonment
• Discontinuance
• Substantial damage or destruction

800

What are the three requirements of vested rights?

• Substantial investment based upon good faith reliance on existing ordinances, approvals, etc.
• Some jurisdictions require reliance to be based on approval of a building permit or other relevant document
• Actions must go beyond preparatory acts (e.g. not enough to draw up plans, etc.) must have actually started work, such as building

900

What's the difference between condemnation action and inverse condemnation?

• Condemnation action – eminent domain. Who files? The government. The government gives just compensation for physically taking property (ownership)
• Inverse condemnation – regulatory takings. Who files? The people. The people say that government “took” property by operation of regulation or other public action that imposes some burden or restriction on use of property.

1000

What's a per se taking?

Taking that results in deprivation of ALL economically viable use

1100

What are the four steps in nuisance analysis?

• Step one: Determine the harm.
• Step two: Does the complaining party have a protected freedom  (e.g., protected from noise, odor, and smoke)?
• Step three: Is the harm substantial? How serious is it? (Reasonable person)
• Step four: Is the harm unreasonable? (Should a reasonable owner be forced to bear the consequences of the harm?)

1200

What are two arguments you can make as a defendant re: nuisance?

• There is temporal privity - I got here first, so I will use the land as I see fit.
• The plaintiff is too sensitive - Play on the “reasonable person” standard

1300

What's the difference between title theory and lien theory?

• Title Theory - Lender takes title to the property subject to the “equity of redemption” in the borrower. AKA bank holds title until you pay off your mortgage
• Lien Theory - Borrower holds title. The lender is the lienholder. The lienholder has the right to possess the property if the borrower defaults

1400

Bob and Samuel are neighbors. Samuel despises children, and the mere sight of Bob’s children raises his blood pressure. On weekends, Bob’s kids play outside, whooping it up and creating a ruckus, but no more so than many children of that age do. Samuel brings suit in private nuisance. Will he win?

No. Private nuisance requires unreasonable interference with plaintiff’s use and enjoyment of land. The conduct must be offensive to a person of average sensibilities; it’s an objective standard. Most likely the level of noise from the children would not unreasonably disturb the average next-door neighbor, so Samuel’s claim will fail.

Ambiguous Conveyances, Waste, and Trusts

100

Type of waste that is the destruction of/damage to property through deliberate acts. Removal of resources. “Open mines” removal prohibited unless they were already being mined when the life tenant came into possession. Same as above with timber.

Voluntary/affirmative

200

Type of waste that is damage to property through omission (failure to make repairs, pay property taxes, etc.)

Permissive

300

Type of waste that is damage or other change to property that increases its value. Traditionally not permitted even if beneficial. But may be allowed if changed circumstances have deprived the property of its value/usefulness/habitability

Ameliorating/meliorative

400

Manager of the trust, fiduciary duty, and they hold LEGAL TITLE

Trustee

500

Why do we have the Presumption Against Forfeitures?

Why do we have this presumption?

• Promotes interests of current owners in controlling property in their possession
• Greater freedom to change land uses as economic conditions and social values change
• Promotes social interests in deregulating economic activity
• Encourages grantors to be clear with their intentions

• Can the language reasonably be interpreted to avoid the loss of the property by the current owner? If yes, the courts want to do that.

600

They hold EQUITABLE TITLE. You can name layers: primary, secondary, tertiary, residuary.

Beneficiary

700

If a grantee is divested, then we call it a _____ executory interest.

Shifting

800

If the grantor is divested, then we call it a ______ executory interest.

springing

Real Estate Transactions

100

This transaction stage is when the O/Seller prepares to put property on the market, while A/Buyers look for property they would like to purchase. Brokers/Agents/Realtors act as liaison between parties, assess property condition, take pictures, ID potential buyers, and draft agreements.

Pre-Contracting

200

This transaction stage is when the buyer and seller agree on the basic terms of the agreement. O and A enter into a Purchase and Sale Agreement. Mutual obligations + terms and conditions. Seller agrees to convey title at a date when the closing will take place. Buyer gives deposit plus promise to pay the rest at closing (not necessarily required) (also called earnest money).

Contracting

300

Transaction stage in which the buyers investigate the property (through inspections, etc.) and set up financing (mortgages), while sellers respond to concerns regarding the property (defects, etc. mentioned by buyers) and work on removing encumbrances (liens, leases, easements, etc.) and removing contingencies. Sellers – fulfilling obligations, preparing to lift security interests (loans), responding to buyer about concerns. Buyers – due diligence, inspect property, check title, arrange for financing.

Executory Period

400

When professionals come through and search for environmental hazards (radon, toxic waste), structural defects, termites. It’s relatively easy for single-family home. Increased difficulty for commercial real estate (due diligence).

Inspections

500

This is a contract between buyer and the bank. It sets down payment, interest rate, and time period.

Loan agreement

600

Contract between buyer and the bank. If buyer does not pay, or abide by terms, the bank may foreclose

Mortgage

700

The bank, pursuant to a default on the mortgage, takes title (or already has it depending on jurisdiction – lien theory v. title theory). The bank arranges for sale of property to recuperate as much $ as possible.

Foreclosure

800

This is if the unthinkable happens. Risk of loss might be determined by the Purchase and Sale Agreement (contract typically puts loss on the vendor) (seller). This makes sense because they have property insurance. If not, use _________ (loss is on the buyer). Here, we treat situation as if conveyance took place – AKA buyer holds equitable title; seller still retains the right to possession.

Equitable Conversion

900

Transaction stage in which lender provides financing to buyers, buyers pay the agreed purchase price, and the seller conveys the property through a deed.

Closing

NOTE: Once closing is complete, the deed replaces the purchase & sale agreement (doctrine of merger). If the buyers want the terms of the purchase & sale agreement to continue applying, this must be provided for explicitly in the deed. Closing can be in person or escrow. Lender funds loan or Buyer pays the purchase. Then, Seller conveys with a deed.

1000

An instrument held by a third party to be turned over to the grantee and become effective only upon the fulfillment of some condition. It can also mean a fund or deposit designed to serve as this.

Escrow

1100

Transaction stage during which the buyers and seller deal with any legal issues (title insurance) arising after the closing

Post-Closing

Real Estate Transactions - Fraud

100

What is an apparent defect?

Regarding when a seller must disclose, an apparent defect generally imputes notice onto a buyer. A reasonable inspection would have yielded this information.

200

What are the elements of a seller's duty to disclose?

Known facts that are material to the sale and are not within reach of diligent attention of the buyer.

Generally, you must disclose any non-obvious information that a reasonable buyer would want to know about and the information that would lead to a change in the transaction

300

What are a buyer's remedies for breach re: fraud?

• Specific performance (e.g. court orders seller to transfer title)
• Damages (e.g. difference FMV at time of breach and the contract price; return deposit)
• Recission (e.g. buyer is so disgusted by deal that they want to wipe their hands clean of whole transaction, may get their deposit back)
• Vendee’s lien (e.g. just means lien is place and would-be buyer has priority at funds when the court forces sale of property)

400

What are a seller's remedies for breach re: fraud?

• Specific performance (e.g. force buyer to pay price and take title; RARE)
• Damages (e.g. K price – FMV at time of breach + other expenses)
• Recission/Buyer Forfeits Down Payment – (e.g. seller is so disgusted by sale that hey don’t want to go on…they walk and get to potentially keep deposit. Look at terms of P/S Agreement
• Vendor’s Lien (e.g. seller gets to retake possession’ seller could resell to recuperate loss)

500

What are three bases for fraud?

• Misrepresentation
• Suppression
• Nondisclosure

600

What is caveat empor?

This means “Buyer beware." There's no common law duty to disclose latent (dormant, hidden, underlying) defects. NOTE: Legislature might add a duty.

If statute adds a duty to disclose a latent defect (known to the seller and not readily discoverable to a buyer), then they are in breach of this duty. This may be considered FRAUD, Buyer might try to rescind the sale, and Buyer might sue and Seller might have to pay up.

Different jurisdictions may require different disclosures: State X may say that the Seller only must disclose a defect that poses a threat to health/safety or State Y might require a Seller to disclose facts that materially affect the value of the property (alienability).

Might still apply even if the defect is apparent (assuming there was no lie about it).

700

What are the elements of fraudulent misrepresentation?

• False statement concerning material fact;
• The declarant knows that statement is false;
• The declarant make the statement with the intention that the listener would rely on it; and
• The reliance of the listener injured the party that relied on the statement

800

What are three exceptions/defenses to Statute of Frauds?

- Part performance: oral sales contract may be enforced if the buyer’s position changed substantially as a result of the contract and one or both parties took steps to complete the transaction. Courts look at circumstances that indicate the making of a contract, such as: Paying the purchase price (this is not enough on its own); Taking possession of the property; and Making improvements on the property

- Estoppel: one party is induced to substantially change their position based on the contract, does so while relying on the contract in good faith, and suffers detriment as a result (e.g. loses money)

- Constructive trust: remedy designed to prevent unjust enrichment when the circumstances involved in the property’s acquisition make it unfair for the nominal owner (the legal title holder/the person whose name is on the deed) to retain the beneficial interest. Typically comes up when one person’s funds were used to acquire the property but the title is held in another person’s name

900

The statute of frauds requires signed writings that contain:

• Identity of the parties to the contract and demonstrates that they entered into a contract;
• The type/nature of the contract and/or its subject matter;
• The essential terms of the contract; AND
• The signatures of the party(ies) bound by the contract

Deeds & Title

100

What are the basic, essential elements of a deed?

• ID of the parties (grantor and grantee)
• Description the property being conveyed (Use the description in the previous deed, describe in metes and bounds (physical natural landmarks), and include plat/map/blocks). 
• The grantor’s intent to convey; and
• The grantor’s signature

200

What is the purpose of recording?

Recording a deed protects the buyer and it’s put on public record with the county land records office.

300

Why must the delivery of the deed go to the grantee?

The grantee records and it creates the presumption that the grantor was ready to part with it right then and there. This is a rebuttable presumption.

400

What is constructive delivery?

Even without physical delivery, a court may find that delivery has taken place when the deed was written, and the parties engaged in conduct that shows the manifested intent to transfer the land. Easy if in a safety deposit box, a trusted third party (like an attorney)

500

What is marketable title?

Seller must be able to provide “marketable title,” meaning that the property must be free of encumbrances. (Encumbrances – property interests held by other individuals/entities that affect the use or value of property in some way. Examples: leases, easements, covenants, mortgages).

600

What are the three Warranties of Title/AKA Title Covenants that are present covenants (breach at closing)?

• Covenant of Seisin –promise that O (seller) owns the estate (O does not only have a lease)
• Covenant of the Right to Convey – O has power to transfer
• Covenant Against Encumbrances – O promises that there are no encumbrances (no 3rd party has any rights) other than those disclosed on the deed.

700

What are the three Warranties of Title/AKA Title Covenants that are future covenants (breach after closing)?

• Covenant of Warranty – promise of $ if O fails to convey
• Covenant of Quiet Enjoyment – promise that buyer won’t be disturbed
• Covenant for Further Assurances – rare – O promises to cure defect

800

Deed that has no warranties at all. Transfers title of property from one person to another w/ little to no buyer protection.

Quitclaim Deed

900

Deed in which warranty limited to defects caused by Grantor during their physical ownership. Most common. The Grantor doesn’t guarantee against any defects in clear title that existed before they took possession of the property

Special Warranty Deed

1000

Deed in which there is a promise to fix all defect in title. Grantor warrants that property is free and clear of all liens and guarantees title can withstand any third-party claims to ownership of the property.

General Warranty Deed

1100

Don agrees to sell Windmill Estate to Sam. The deed reads, in its entirety: “I, Don, hereby convey my fee-simple estate in Windmill Estate, located at the corner of Michaels and Washington Streets, City of Greenwood, to Sam.” The deed is dated and signed by Don, who hands it to Sam. Sam puts it in his drawer. One week later, Don decides he wants Windmill Estate back. He sues Sam for a declaratory judgment that the deed is invalid because Sam didn’t sign it. Will Don prevail?

No. A deed requires only the grantor’s signature, not the grantee’s signature. (The deed is effective if the grantor signs it and it’s “delivered” to the grantee, and “accepted” by him.)

Recording Systems and Leasehold Estates

100

What are the three types of recording acts?

•Race - First one to record wins. Even if 2nd conveyance knew of 1st conveyance. Here, we do not care about notice. We do not care who purchased first

•Race-Notice - 2nd wins only if they had no notice of the 1st conveyance (at time of 2nd execution) and records first

•Notice - 2nd purchaser wins only if s/he did NOT know about the 1st conveyance (even if 2nd does not record). Kind of assumes 1st purchaser did not record, otherwise the 2nd purchaser would be under constructive notice.

200

How do you conduct a title search?

Grantor-grantee index (think of it as two indexes because you have to go down and back up to make sure it’s correct). Use last names. Outlines deed terms. Recording date (not same as date when grantee acquired interest (the date of execution). Liber/folio. To do a title search, generally 40+ years is enough. Set by marketable title acts. If recorded before the allotted time, you may have to re-record or file notice to claim.

300

Notice that imputes knowledge; you, the second purchaser, should have conducted a title search and thus are imputed w/ the knowledge of what a reasonable search would have yielded.

Constructive Notice

400

Type of constructive notice that applies when the subsequent purchaser w/ reasonable investigation finds out that the person trying to sell the land already sold it. The 2nd purchaser is imputed w/ knowledge.

Inquiry Notice

500

Notice when you know that the seller already sold it before selling it to you.

Actual Notice

600

What is a bona fide purchaser?

• Good faith purchaser
• Not gifts/ultra low purchase price
• If the jurisdiction doesn’t have statute on point (recording act) saying if jurisdiction follows the R, RN, or N rules, the new use common law – first in time, first in right.
• Bona fide (2nd) purchaser, who would otherwise be SOL, may obtain some relief in this situation (later we codified this as RN/N rules).

700

Chain of title problem when names sounds alike/have common usage, then spelling errors are not end of world.

Idem sonans

800

Chain of title problem that occurs if grantor conveys property that he doesn’t have and then actually receives title, ownership is vested in the grantee

Estoppel by deed

900

Chain of title problem in which a bona fide purchaser can convey to a third party even if the third party kknows of an earlier conveyance. Look for SUPERIOR claim.

Shelter doctrine (only notice and race notice)

1000

True or False: If a deed is voidable, the next bona fide purchaser cannot get good title, and that title can be rescinded.

False. If a deed is voidable, the next bona fide purchaser can get good title, and that title can’t be rescinded. The idea is that bona fide purchasers should have their rights protected where possible. And courts view fraud victims as (at least partially) bringing fraud upon themselves

1100

Name three elements of a term of years leasehold

• Lasts duration set by agreement of parties
• Ends automatically on agreed upon date or upon happening of a condition enumerated in the lease. NOT death.
• Eviction is option but only if tenant breaches material term of lease (most commonly – failure to pay rent)

1200

Name three elements of a periodic tenancy leasehold

• Lasts specific periods, auto-renewal (e.g. month-to-month)
• Ends by notice given by either LL or T (jurisdiction), NOT death
• Eviction is option but only if LL gives notice to T.

1300

Name three elements of a tenancy at will (RARE) leasehold

• Lasts as long or as short as they want, not necessarily spelled out in traditional lease
• Anything can end it, no notice required. Death of either LL or T
• Eviction is option and is absolute, no need to give a reason, and unconditioned (effectively abolished based on statute that requires notice)

1400

Name two elements of tenancy at sufferance (holdover) leasehold

• T wrongfully stayed past termination so unclear how long this lasts. If LL accepts money, may create agreement
• Ends through eviction proceeding.

1500

Ken leases Whiteacre to George for $500 per month, subject to a written lease providing that “the landlord or tenant may terminate this lease upon 60 days’ notice and penalty of one month’s rent.” At common law, what is the nature of the tenancy created by the lease?

The lease impliedly creates a periodic tenancy—a lease of unspecified duration that is renewed automatically at the end of each “period” unless either lessor or lessee terminates it. Although the language does not expressly state a month-to-month periodic tenancy, due to the monthly payment of rent a monthly period will be implied.

NOTE: This is not a tenancy at will, because under a tenancy at will either the landlord or the tenant can terminate at any time. Here, notice is required. (Under modern statutes, even a short-term tenant at will is entitled to notice before termination of the lease, which muddies the distinction between short-term tenancies at will and short-term periodic tenancies.)

Landlord Tenant

100

What is the landlord's duty re: delivering possession?

• LL has duty to deliver possession. Must deliver possession at beginning of lease; obligation to remove holdover tenants (MAJORITY RULE). Failure to deliver possession=breach of lease. Tenant may terminate the lease and get damages or the tenant may withhold rent during period that he/she can’t occupy property and get damages.
• *note: MINORITY RULE – LL has duty to deliver right to possession, not actual possession. Under this approach, T is responsible for evicting holdover T’s and must continue to pay rent

200

True or False: LL has right to inspect and repair the premises.

True. But must give reasonable notice before entry (usually 24-48 hrs) unless emergency

300

What duty does the tenant have?

 T has duty to not commit waste (damage/destroy property). LL can evict for breach of lease

T typically agrees not to cause nuisance or otherwise interfere w/ others’ quiet enjoyment

400

What happens when a landlord sells property or dies?

• You can only give what you have. Here, LL only has reversionary interest subject to T’s leasehold.
• New LL gets rent and enforce rights. Might terminate notice.
• Divorce – treated like sale
• Foreclosure – who has priority? Who came first?
• Life estate – over when LL (holder of life estate) dies (automatic back to O – REVERSION)

500

Complete transfer of leasehold w/ no future entry by the OG tenant (in other words, assignee completely takes over lease and the responsibilities that go w/ it). 

Assignment

*note: Assignee is directly responsible to LL. Takes on any covenants made by original T.

600

Transfer of leasehold that leaves tenant right to re-enter/control property in the future.

Sublease

*note: T remains liable to LL; for example, T responsible for making sure subletter pays rent. Only exception is if T expressly promised that subletter would pay rent. Clauses prohibiting assigning/subleasing (which usually refer to subletting) are usually held to be enforceable and T can be evicted for breaching them.

700

True or False: Landlord not obligated to renew lease.

True. LL not obligated to renew lease. But not allowed to refuse based upon:

• Discrimination against protected classes; or
• Retaliation for T filing suit for breach of warranty of habitability

800

What are the remedies if the tenant doesn't pay rent and stays in apartment?

• LL can sue for back rent and possession
• But T can assert defenses
• LL can accept new tenancy w/ holdover T or can choose sue holdover T for possession
• But LL can’t self-help – must go through court proceedings. Self-help can become violent. LL may not have legal right to recover possession

900

What is the landlord's duty re: mitigating damages?

• If T leaves, LL can accept surrender of apartment. But T may still be liable for back rent, damages for breach (equal to rental price minus fair market value + ad cost + time to get newbie/lost rent). Policy = LL can re-rent
• LL may also refuse to accept surrender. Must notify T but can then seek a new T and sue old T for damages (new rent minus old rent). New rent must be reasonable. Can’t sue old T at end of lease term – must make effort to mitigate damages (usually by trying to re-let apartment)

1000

Type of eviction in which T is physically barred from premises, no longer has to pay rent. E.g. changing locks. Might be partial

Actual Eviction

1100

Type of eviction in which LL seriously interferes w/ quiet enjoyment of premises; T can stop paying rent and move out. LL actions equivalent to barring T from property. Might be partial. Can only raise defense if T moves out within “reasonable time”; if T stays, their failure to leave can be used against them. May be able to get consequential damages (beyond amount of rent). E.g. if T has to stay in hotel for some period of time

Constructive Eviction

1200

In a leasehold estate, a tenant who faces a lack of heat, water leaks, and rodent infestation in their apartment may seek damages based on what legal theory?

Violations to the Warranty of Habitability

•Lack of heat (NOT AC)

•Lack of hot water/lack of water

•Broken windows

•Pests

•Leaky/otherwise defective roofs

•Lack of electricity

•Faulty/nonexistent sanitation

1300

Name the nine tenant remedies

• Rescission - right to move out before the end of the lease. Not liable for remaining rent. Applies where there is a material change in housing conditions BUT that change does not rise to the level of constructive eviction
• Withholding of rent - Statutes may set conditions on when tenants can withhold rent/how much they can withhold/under what circumstances withholding is acceptable. May require tenants to use rent escrow
• Abatement - Based on seriousness of the violation or on the fair market value of the property with the violations present.
• Repair and deduct - Tenant does repairs and deducts the cost from the rent.
• Injunctive relief/specific performance - Get a court order that requires the landlord to comply with the housing code
• Administrative remedies - Enforcement by housing inspector. Inspector can bring action for code violations, seek civil damages (which go to the city/state, not to the tenant).
• Criminal penalties - Statutory.
• Compensatory damages - may be available if personal property is damaged/destroyed or if the tenant has to stay in a hotel. E.g., you need to buy a space heater or gallons of water
• Tort liability - Landlord may be liable for injuries resulting from landlord’s negligence
• NOTE: Landlords CANNOT evict tenants for reporting code violations/asserting breach of the warranty of habitability

1400

What is the Difference Between Violations of Warranty of Habitability and Constructive Eviction?

• Do you have to move out? Constructive eviction – generally, yes.
• Do you have to move out? WHO violation – no.

Surprise

100

What is the Rule Against Perpetuities and why do we have it?

No interest is good unless it must vest, if at all, no later than 21 years after the death of some life in being at creation of the interest. Perpetuity means lasting forever.

Why do we even have it? It was a compromise. Land is power. Peasants vs. rich – went to mediation. Peasants thought it was unfair and wanted some power. The rich said it’s my land, I’ll do what I want. The compromise: rich people, you can have some control and some uncertainty. Peasants, the rich will not be able to control forever. 21 is arbitrary number.

200

Interest to a person other than grantor or grantee upon the happening of circumstances that may or may not happen

Executory interest

*type of future interest*

300

How many lizards does Emily have?

*looks to Emily for answer*

400

When property reverts to grantor (or their heirs if grantor is no longer alive)

Reversionary interest

*type of future interest*

500

Term used at interest holder’s death (A), a third party (B) takes over the interest. 

Remainder

*note - The third party is known as a remainderman.

600

True or False: Every conveyance by O to A that is not a fee simple absolute entails a future interest either in O (or O’s heirs) of someone else

True.

•Fee tail – reversion in O (or O’s heirs) when grantee’s lineal descendants run out

•Estate for years – future interest in the landlord when the lease is up

•Life estate – at the death of the life tenant reversion in O or remainder in a third person

REMEMBER – Most real estate conveyances entail no future interest because they are grantor, who holds a fee simple absolute, conveying a fee simple absolute to the grantee

700

What are the definitions of testate, intestate, and escheat?

Testate - died w/ a Will because you had a Last Will and TESTATMENT

Intestate – died w/out a Will

Escheat – you died w/out a will and w/out heirs, so your property goes to the state (usually for education)

800

What's the difference between freehold and non-freehold?

• Freehold – you get title/right to hold property
• Non-freehold – you get mere possession (think renting)

900

Term meaning to prevent unreasonable delay. People would otherwise abuse the statute of limitations.

Laches

1000

Term used when an interest holder’s death (A), the grantor (O) (or grantor’s heirs) takes back interest

Reversion