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What is the remedy for misuse of an easement?
The appropriate remedy for the servient owner is an injunction against use.
How can an easement be terminated?
1) Conditions specified in the original easement 2) If the same person acquires the easement and the servient estate 3) Deed of release from the owner of the easement to the owner of the servient land 4) Holder demonstrates by physical action an intent to abandon the easement 5) Estoppel due to reliance on oral expressions 6)) Prescription (opposite of creating easement by prescription) 7) Necessity that created the easement ends.8) Condemnation or involuntary destruction of the servient estate
What are \"Profits\"?
Servitude entitling the holder of the benefit to take some resource (soil, timber, materials, fish, etc.) from the servient estate.
What are the rules governing creation, alienation, and termination of profits?
They are the same as with easements.
What is a real covenant?
Written promise to do or not do to something on the land.
Do real covenants run with the land?
Yes, which means that subsequent owners can enforce or be burdened by the covenants.
What are the requirements for a burden to run?
A successor in interest will be bound by the covenant if: 1) intent to run 2) successor had notice at purchase 3) the original parties had horizontal privity 4) the successor in interest must hold the entire durational interest held when covenant was made 5) the covenant must touch and concern the land (i.e., to do or not do something to the land)
What are the requirements for a benefits to run?
1) Intent for it to run 2) A succeeding possessory estate 3) Covenant must touch and concern the land (i.e.: promised performance enhances enjoyment of the land)
Do promises to pay money in connection with the land run with it?
Yes, if the money is to be used in connection with the land (eg: homeowners fees.
What is the remedy for breach of a real covenant?
Money damages are the only remedy. * *If an injunction is sought, the promise must be enforced as equitable servitude.
How can a covenant be terminated?
As with all other servitudes, a covenant may be terminated by 1) a written release 2) merger 3) condemnation or destruction
What is an equitable servitude?
A covenant that, regardless of whether it runs with the land, equity will enforce against the assignees of the burdened land who have notice of the covenant.
How is as equitable servitude remedied?
Usually by injunction.
What is the difference between a real covenant and equitable servitude?
Basically the difference is the remedy that can be sought. To seek an injunction, the requirements for enforcement as an equitable servitude must be met.
How is an equitable servitude created?
By covenants contained in a writing that satisfies the SOF.
Can an equitable servitude ever be implied?
Only a negative equitable servitude can be implied from a common scheme for developing a subdivision.
What are the requirements for burdensome equitable servitude to run?
1) Covenanting parties intended that the servitude be enforceable by and against assignees; 2) Successor of the promisor has actual, inquiry, or record notice of the servitude; and 3) Covenant touches and concerns the land
What are the requirements for beneficial equitable servitude to run?
promisee’s successors if: ( 1) the original parties so intended, and ( 2) the servitude touches and concerns the benefited property.
What are the defenses to equitable servitudes?
1) Person seeking enforcement is violating a similar restriction in his own land. 2) Benefited party acquiesced in a violation of the servitude by one burdened party 3) Benefited party acted in a way to make it reasonable to believe the servitude was abandoned 4) Fails to bring suit a reasonable time 5) Change to the area has been so significant that enforcement would be inequitable.
What is adverse possession?
A way to acquire real property via operation of the statute of limitations for trespass. I.e.: If an owner does not, within the statutory period, take action to eject the trespasser, title vests in that person.
What are the requirements for adverse possession?
1) Running of the SOL 2) Open and Notorious possession 3) Actual and exclusive use 4) Continuous possession 5) Without the owners permission
When does the SOL begin to run?
When the owner first can bring suit.
What constitutes open and notorious possession?
Occupation must be sufficiently apparent to put the true owner on notice of trespass.
What constitutes continuous possession?
Constant use by the claimant is not required as long as possession is of a type that the usual owner would make. * *Need not be by one person either. Can tack onto predecessors but privity is required.
What is effect of disability of the owner?
The SOL does not begin to run if the true owner was under some disability to sue when the COA first accrued. (eg, minority, imprisonment, etc). * *Note: If the disability arises after the COA has accrued, the SOL will not be tolled.
What is the effect of adverse possession on future interest?
The SOL does not run against a future interest holder until the interest is possessory.
What is the adverse possessor\'s duty with regard to restrictive covenants?
If an adverse possessor uses the land in violation of a restrictive covenant, she takes free of the covenant. Otherwise she takes title subject to it.
What land cannot be adversely possessed?
Title to government-owned land and land registered under a Torrens system.
What is conveyancing?
The process of transferring real property, which usually consists of: 1) A land sale contract (which endures until closing), and 2) Closing (when the deed becomes operative).
What is the land sale contract?
Contract that precedes most transfers of land.
What is the doctrine of equitable conversion?
Once a contract is signed, equity regards the buyer as the \"owner\" of the real property. * *The legal title that remains in seller is considered held in trust for the buyer.
Who bares the risk of loss under equitable conversion?
Usually the buyer
What is marketable title?
Every contract contains an implied warranty that the seller will provide a title reasonably free from doubt at closing.
Is a title by adverse possession marketable?
Not for the purposes of the MBE.
What is the effect of liens, restrictive covenants, and easements on marketability?
Generally render the title unmarketable.
When is marketability measured?
Generally the date of closing. Date of last payment in a land installment contract * *If an MBE answer refers to marketability sometime after closing it usually wrong.
What is the remedy if the title is not marketable?
1) The buyer must notify the seller and give him reasonable time to cure the defects 2) If seller fails to cure, buyers remedies include rescission, damages, specific performance w/ abatement, and a quiet title suit.
Does a quitclaim deed affect the warranty to provide marketable title?
No, it does not let the seller off the hook for defects.
What is the generally rule for time of performance of a land sale contract?
Courts presume time is \"not of the essence\" (i.e., closing date is not absolutely binding if tendered w/in a reasonable time)
When will the \"time is not of the essence\" presumption be overcome?
1) The contract so states, 2) The circumstances indicate that was the intent, or 3) One party gives the other notice that time is critical.
What is the liability if time is of the essence and a part fail to render performance on closing?
The party who fails to tender performance is in breach and may not enforce the contract.
What type of conditions are obligations under a land sale contract?
Concurrent, meaning neither party is in breach until the other tenders performance. * *If neither party tenders on closing date, the date is extended until one of them does
What are the remedies for breach of a sale contract?
Damages or specific performance. * *Damages are the difference between K price and market value on date of breach.
What is the sellers liability for defective property?
Seller may be liable for existing building defects on grounds of misrepresentation, active concealment, or failure to disclose. * *No implied warranty of quality or fitness for purpose
Are disclaimers of liability effective?
General disclaimers in the sales contract are not sufficient to overcome a seller\'s liability for fraud, concealment, or failure to disclose.
When are real estate agents entitled to commission?
The modern trend is to award commission only if the sale actually occurs or fails because of the fault of the seller.
What is the deed?
Deeds transfer the title to an interest in real property.
What requirements must be meet for the deed to be effective?
1) Be in writing, 2) Signed by the grantor, and 3) Reasonably indentifies the parties and the land.
When will a void or voidable deed be set aside?
1) Void deed will be set aside even if the property has passed to bona fide purchaser 3) Voidable deeds will be set aside by the court only if the property has not passed to a bona fide purchaser. * *Void deeds include those that are forged, obtained by fraud, etc. Voidable deeds are those by minors, incapacitated, duress, etc.
What would happen if a joint owner attempted to convey property by forging the signature of the owner?
1) The conveyance would be valid as to the interest of owner with valid signature 2) Void as to the other owner.
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