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property law -- Cloned from: property law
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First in Time and Right


Finders Keepers: an understanding between European states to prevent territory wars outside Europe. Req'd to improve the land to stave off other claimants. Can’t just plant a flag and leave.


right of occupancy


you’ve got the right to be there, for now, at the pleasure of the possessor (usually the government.




chain of title


tracing the rights to the property from a beginning to now. in Mcintosh that chain was anchored in discovery plus posession/conquest.


ratione soli / absolute ownership doctrine


the wild animal, mineral resource, water, etc. is “owned” by the person who owns the land upon which the animal sits. Whatever you can grab on your land is yours, regardless of its impact on others.


title of occupancy


I’ve killed it, so it’s mine. Or I’ve trapped it, forced it to submit to my dominion, so it’s mine.


Obligor:


the person obliged to do s/t


obligee:


s/o with the right to receive the thing


Assignor:


the person who transfers his rights under the contract


assignee:


the person who receives the right transferred.


delegator:


the person who has a duty to do s/t


delegee:


the person who takes over that duty


How to establish ownership farea naturae


To establish ownership over something ferae naturae (wild), you must manifest or give notice of your intent to appropriate the thing, you must demonstrate that notice, you must claim the thing exclusively (not for everybody) and deprive of its liberty (trap or grievously wound)


Adverse Possession


All Cows Eat On Hills
To adversely possess a piece of land, the possession must be actual, hostile, exclusive, open and notorious, and continuous. The possesor must manifest, through possession of the land for its regular purpose and duration, an intent to be the owner, regardless of knowlege of true ownership and must defend her claim to ownership. The actions of the adverse possessor must give the true owner an opportunity for notice that the land is being claimed by another.



seisin


freehold possession under a claim of right on land.


ad coelum


if you own a piece of land on the surface of the earth, Blackstone says you own the surface but also everything to the center of the earth and above you to the outermost heavens*.
* but not into space


statutes of disability


the statute of limitations for adverse possession can be extended if the true owner was legally incompetant (childhood, disability, insanity) at the instant the adverse claimant arrived.


privity


a close relationship or mutual right or interest.


tacking:


an adverse possessor can convey his interest in the property to his successor adverse possessor only if there’s privity between the two parties. The two adverse possessors’ interests combine to meet the statute of limitations. Must be an uninterrupted possession.


rights of possession:


exclusion of others, remainder, resist efforts by other non owners to takeover possession.


champerty:


CL rule that says you shouldn’t buy into a lawsuit. Court’s won’t help out if you make a purchase for the sole purpose of trying to cash in on a dispute. In this case s/o tried to take advantage of the situation and sell out from under the adverse possessor.


Color of Title:


a claim to title which appears valid, but may be legally defective.. eg. deed is color of title.


fee


or feif: a tenant’s interest in land that he gets under an agrement from his lord.


Fee Simple absolute


(fee simple): A tenant’s interest in land that endures until the current holder dies without heirs.


freehold estate/alienable fee simple


a tenant’s interest in land that endures regardless of Lord’s will. It can be passed to whomever the tenant wishes at will.


Heirs


persons who survive the decedent and are designated as intestate successors under state statute. Had no inherent future intst. Their inheritance dies w/ them if they die before the prop’ty owner. only blood relatives or adoptees or spouses.


Issue


descendants. They are the first line of heirs.


Collaterals


all persons related by blood to the decedent who are neither descendants nor parents.


Fee simple conditional


a fee simple conditioned on the tenant having issue.


Fee Tail


conditions of inheretance put on the estate to keep it in the family. estate in land created by conveyance that defines who precisely may inherit. It ends when all of the fee tail creator’s designated descendants are dead. An inheritor does not control who gets the estate upon his death.


life estate


an interest in an estate only for the inheritor’s life, then it passes to whomever the deceased tenant next designated as inheritor.


adverse possession against a lifetime estate


no adverse posession. ONly a right to possess for that tenant’s life. Can only adversely possess free hold. But if the adverse possession starts during a freehold which then goes into a life estate followed by a remainder, the clock continues.


Contract for a term


like a life estate it grants possession to a named person for a designated period of time (O to A for 10 years, then to A’s children).


Right of Entry


transfers and estate subject to condition subsequent and retains the power to cut short or terminate the estate.


Executory interest


a future intst in a transeree that must, in order to become posessory, dievest or cut short some interest in antoher transferee or divest the transferor in the future.


Fee simpl subject to an execuory limitation:


a fee simple that conditions inheritence upon some event (O’s land goes to A but if A dies w/o issue then upon A’s death it goes to B)


Reversion


interest left in an owner when he carves out of his estate a lesser estate and does not provide who is to take the property when the lesser estate expires. A remnant of an estate that has not entirely passed away from the transferor. (O  conveys land to A for life, then to B and her heirs if B survives A. … if B dies before A, then O gets the land back at A’s death).


Executory interest


a future interest conditioned upon s/t happening after the expiration of the previous possessory interest. It must divest or cut shor s/o else’s interest. (O to A for life, then to B if he reaches the age of 21.) No conditions precedent.  May file waste actions.divests or cuts short the preceeding interest.



Remainder


a future interest that will or may become a present interest in someone other than the creator or his successors in interest immediately upon the natural expiration of a prior particular estate created by the same instrument. 1.  Indefeasibly Vested; 2. Vested subject to partial defeasance; 3. Vested subject to complete defeasance; 4.  Subject to condition precedent/contingent


Vested remainder


given to an ascertained person and is not subject to a condition precedent. May file waste actions.


indefeasibly vested remainder


remainder is certain of becoming possessory in the future and cannot be divested (O conveys to A for life,  then to B and her heirs. B has indefeasibly vested remainder).  May file waste actions.


Contingent remainder


given to an un-ascertained person or is made contingent upon some event or action occurring to the land (not personal conditions like age). Not assignable during the tenant’s life or inheritor’s life. unreachable by creditors. Subject to rule against perpetuities. May file waste actions.


accelerate:


when an interest is passed to the holder of a vested remainder after the previous’ interest holder’s interest ends, but the terms put upon that interest haven’t run. (o to A for life then to B. But A “releases” the life estate. b/c B’s interest is vested and A is still alive, it goes to B. If B’s interest were contingent or executory there would be no acceleration.).


vested remainder subject to divestment by executory interest


A vested remainder that can only become possessory if some executory interest does not push it out. (O to A for life, then to A’s children, but if at A’s death she is survived by no children, then to B.   Any children born to A and their heirs get an interest so long as one child of A survives A. If no child of A survives A, then all interests go to B).


fee simple subject to executory limitation


a fee simple that upon the happening of some stated event, is automatically divested by an executory interest in a transferee (O conveys to A and his heirs, but if A dies w/o issue to B and her heirs. A has possessory fee simple subject to executory limm, B’s interest is only possessory by divesting A).


subject to open:


a class gift (to all A’s children) So one member’s interest may be decreased by addition of new members of the class.


uniform and simultaneous death act


if it’s impossible to determine the first to die then treat each as having survived the other.


tenancy by the entirety


between spouses. Can only be conveyed w/ permission of both. Broken by divorce.


tenant in common


equal rights to possess all the property all the time, no survivorship.


Concurrent ownership


co-ownership interest in the same property. All concurrent owners must agree to seer a cotenancy.


partition


the privilege of each co-owner in a joint tenancy or tenancy in common (but not tenancy by the entirety) to transform a concurrent  estate into estates held in severality.


partition in kind


physically dividing up the prop’ty by interest.


owelty


compensation to other co-owners if after partition your allotment is of greater value than theirs.


ouster


being denied entry to the prop’ty that is being wholly being used by the cotenant. Doesn’t in and of itself start clock on adverse possession.


bank account in Joint Tenancy


money belongs to whomever put it in, even after they die. Except in a few states.
donative intent: intent to give $ to co signer upon death -- det whether the account is POD or JT w/ no survivorship right.


convenience account


bank account set up so the co signer could pay the owner’s bills for him. But no donative intent.


Dower


Any freehold interest in land of wife owned by the husband during marriage.  Not reachable by husband’s creditors. Husband only has a life interest in the prop’ty.  Both must sign deed to convey. (to do same thing w/o legal probs: Spouse can create LLC to buy and sell prop’ty independently. The income will be shared but the prop’ty won’t.)


Courtesy


real prop’ty owned by wife, transferred to husband at wedding, inheritable by issue.


Elective shares


regardless of what the will of the deceased spouse says, the surviving spouse is entitled a fraction (1/3 or ½ ) of prop’ty owned by deceased at time of death and subject to probate. Diff than Dower b/c it applies to personal prop’ty and only that prop’ty owned at time of death. Diff than comm’ty prop’ty which applies to prop’ty acquired during marriage.


community property


property owned jointly by husband and wife. In states where there’s any doubt about character of property owned by spouses, there is a very strong presumption that it is community; it’s up to the spouse claiming otherwise to prove it. Once property acquires its character as community or separate, it stays w/ that characteristic as long as its traceable, it doesn’t lose that characteristic once it moves across state lines.


termination of a lease


termination is only effective at the end of the lease term (term of years), breaking dependent covenants of the agreement (payment, quiet enjoyment, etc), one of the parties dies (only in a tenancy at will), approved abandonment, or full and timely notice to other party (only in a periodic tenancy and req’s 6 mo for year to year lease or otherwise the term of the lease (month for month to month, etc)


tenant at sufferance


(holding over): tenant sticking around after he was legally obliged to leave. Landlord can begin an ejection action or get eviction order from the court. Tenant would be resp to pay rental value, incidental costs incurred by landlord, court costs and removal costs. OR could negotiate terms upon which holdover could stay if the landlord wants the tenant to stay on a new lease. Then a tenancy resulting from holding over is usually subject to the same terms and conditions as those in the original lease unless the parties agree otherwise. Most states say it can’t exceed one year. Grew out of CL when land was leased for ag. and land was worth more just before planting than in the middle of the growing season.  Short of holdover remedy in states that don’t have it, the landlord at the least will get fair market value of rent as damages.


American rule


absent express condition in the lease, the landlord only has to give legal possession. Landlord need only ensure the tenant is legally able to access the land (public access) but the tenant must oust any interlopers.


English rule


there is an implied covenant of  open entry to tenant and requires turning over physical possession. So the landlord must ensure there’s public access to the land and oust any interlopers.


privity of estate


tenant has right to occupy the land conveyed by landlord’s voluntary surrender in exchange for obligations on part of tenant.


privity of contract


tenant is obliged to pay to the landlord rent b/c of their reciprocal promises and binding agreement w/o regard for the correlative right of tenant to occupy.


third party beneficiary


you contract for something to be done for the benefit of someone outside the contract. It must be intended for that third party at the time of the making of the contract. (life insurance, kid’s private school tuition contract, sublease).  This gives the third party beneficiary privity of contract with the performing party.


Sublease


when less than the entire interest is conveyed (shorter period of time, reserved right of re-entry, etc. Privity of Contract exists only between tenant and subleasor unless there’s an expressed third party benefit in the landlord.


Assignment


a transfer of a right under contract. If nothing is held back in the conveyance, it’s an assignment. This conveys privity of contract with the tenant and privity of estate with the landlord and the tenant. Unless a contract expressly grants authority to void the assignment to the landlord, assigning when the contract bans it will be allowed and the landlord can sue for damages.


Delegation


transfer of an obligation under a contract.


novation


a contract in which the obligee agrees to allow the original delegator off the hook and making the delegetee completely obligated to perform the duty.


quiet enjoyment


implied dependent covenant in all leases -- that landlord will leave the tenant alone. To break this, the landlord must find a dependent covenant broken by the tenant. Nonpayment is a dependent covenant in all jurisdictions.


dependant covenants


agreements in the contract that if broken nullify the lease.


forcible entry


a landlord’s illegal and unauthorized interruption or destruction of the tenants right to quiet enjoyment. The displaced person is entitled to damages and to recover possession, even if she was there without privity of estate or right of possession. Landlord must use the courts to regain possession.


summary eviction


Permits the landlord to go to special court to get declaration that the tenant has breached a dependent covenant of lease and the landlord is entitled to recover. The landlord can then get the Sheriff to physically evict the tenant. (faster than ejectment action)


release/surrender


when the tenant gives up the lease and abandons the property and the landlord accepts the end of the contract. This releases the tenant from damages.


mitigation of damages in lease abandonment:


Landlord must det what’s reasonable mitigation effort. But he risks inadvertantly accepting the tenant’s surrender by attempting to lease to someone else. Landlord has to balance efforts to get new lease with going to far and accepting surrender. So ads are OK but renovating isn’t. If what he’s doing can be perceived as acting on behalf of the tenant then it doesn’t accept surrender. (the new tenant is a sublessee of the new tenant). But if it can be perceived as acting on his own behalf (trying to get higher rent by renovating, changing terms, etc). Kridel is on the line for liabiltiy so long as Somer doesn’t


constructive eviction:


the rental property is so unfit for the purpose for which it was rented as to be unuseable. The property becoming unuseable is a material breach of the contract and entitled the tenant to leave and not pay rent. The tenant is obliged to leave the property within a reasonable time, ascertained by the facts seen in the light most sympathetic to the tenant.




latent defect:


landlord knows of a defect that will render the lease useless to the tenant and doesn’t disclose it. And this defect is one such that the tenant could not detect it upon reasonable inspection.




warranty of fitness:


guarantee by landlord that the premesis are suitable for hte purpose of the lease. Only at the time the lease is signed. The tenant can leave if the land is in other condition.




unenforceable contract:


it’s unfair or illegal in some way which means the landlord can’t get rent if the tenant leaves. The tenant has the right to leave and not pay.





warranty of habitability:


landlord has obligation to ensure the property is useable throughout the leasehold. It must be reasonably safe and healthy, but specific factors depend on local norms and culture. If not, the tenant may seek reimbursement and diminution of rent based on real value of the property. In all unequal situations, can’t be waived. This isn’t contract law, but social policy (status). Can look to housing code as evidence of breach of this warranty (heat, toilets, stair rails, etc). basically a duty to repair. This is generally considered a dependent covenant. If it’s breached, you can get reduced rent, you can move out, you can fix it yourself after notice and reduce rent accordingly, you can get a court order for specific performance, tenant can rescind/terminate the contract.




retaliatory eviction:


Tenant (T) complains a lot, then rats him out to building inspector who write up the L for mult violations. The L then evicts T. State statutes generally ban this practice. CL case: Edwards v Habib. We have to “enlist the aid of tenants to help enforce building code” by encouraging them to complain and then call in. Created right to complain w/o punishment. landlord can’t kick T out right away. there’s a statutory time requirement to allow for retaliatory motive to abate.





merchantible title:


formal, official legal title not subject to such reasonable doubt as would create just apprehension of its validity in the mind of a reasonably prudent person. Nor title that would expose the buyer to hazard of substantial litigation.  Implied in every sale for land.




Statute of frauds:


requires contracts for conveyance of interest in land to be in writing. Prevents imperfect memory or lies from changing an agreement. The purpose is to create evidence of the shared intent behind the transaction.





estoppel:


unconscionable injury resulting from denying enforcement of the oral contract when one party has acted in reliance on the contract being enforced. Trumps statute of frauds.





partial performance:


oral agreements enforceable when particular acts have been performed by each party to the agreement. Serves as evidence of an agreement. If the parties are behaving as if there is an agreement, then you assume there is one and take it out of the statute of frauds.




duty to disclose:


the seller has a duty to disclose all material facts  affecting the value of the property which are not readily discernible.




materiality test:


depending on the state law, a fact concerning value of property is material if: 1)a reasonable person would attach importance to it in deciding to buy or 2) whether a defect affects the value or desireability of the property to the buyer.




merger doctrine:


when a buyer accepts a adee, the buyer is deemd to be satisfied that all the contractual obligations have been met. except in cases of fraud, collateral contractual promises. Now out of disfavor.




good title:


title traced back to the original land grant. Law only req’s merchantible title b/c it too expensive to try to figure out good title each time.




conveyance at death by escrow: escrow:


give the deed directly to a trusted third party who holds it until some condition is met (ie death). B/c delivery is effective at time given to agent, regardless of when the condition is filled, the property is conveyed without violating statute of wills.





statute of wills:


any conveyance of property effectuated after death must be in writing and witnessed.


revokable trust:


a post-death conveyance of land, effectuated through the use of a trusted third party, that can be revoked during life by the conveyor. Protected from statute of wills b/c it’s a trust.




equity of redemption:


borrower defaults on the mortgage but gets the chance to pay the payments and fees owed and keep the house.


foreclosure:


a legal action in court which gives the borrower notice of the amt of time he has in which to pay the money he owes before repossession and foreclosure sale.


title theory:


in some states, when the borrower signs the mortgage for the loan the borrower gives the title to the mortgage holder. The lender then holds title to the property until all loan payments have been made.




lein theory:


in most states the buyer holds the deed to the property during the mortgage term The buyer promises to make all payments to the lender and the mortgage becomes a lien on the property, but title remains with the buyer. The lender's lien is removed once the payment of all loan payments have been completed




deed of trust:


borrower conveys title to land to a person to hold in trust to secure payment of the debt to the lender. trustee holds the title for the lender. Usually has right to foreclose w/o going through judicial process.




contract of sale:


in lieu of conventional financing. Buyer doesn’t have the down payment or credit to get loan from conventional lender. Low income developers will convey the title provided the buyer pays X installments of Y dollars of a period of Z years and that when all the payments are made, the contract seller hands over the deed. Overall cost is typically quite high by comparison. Problems: if contract seller gets in trouble and is in bankruptcy, the buyer may end up in line with other creditors to get their deed and may end up homeless. Typically they include provisions that provide that if the buyer can’t pay, the seller may immediately repossess the property. So there’s no way to recover equity. Only statutory law can protect from this. Some states statutorily treat these contracts in the same way they treat traditional mortgages.




Common law recording:


in the absence of recording statute, first in time is first in right to title.


notice recording law:


the first to give constructive notice of ownership wins. As long as the purchaser has no notice of the prior interest, they will prevail, even if the other interest was recorded first.




race recording law:


the first to record the title traced from the true title holder has the best title.





race/notice recording law:


the race supercedes the notice requirements. First to record wins. a deed recorded out of the chain of title is not legitimately recorded.





recording CL policy


who between two claimants have avoided the problem in the first place.


falsified deed:


voids any further conveyance that depends upon that deed. The subsequent buyers have no right right to title.


adverse possession v recording statute


Adverse possession trumps race/notice recording statutes. B/c recording statutes only protect against common conveyor.


bona fide purchaser:


innocent purchaser who buys in good faith and has no knowledge or ability to gain the knowledge of a prior title holder. They must have taken reasonable steps to look into the condition and title to the property.




servitudes:


generic term  describing the creation of an interest in land that is bending and benefiting not only the parties to the agreement, but also their successors. Involves some limitations or constraints on the way a person can use his property.




covenant:


agreement based in contract which limits ability of each owner to use their property freely for benefit of all in the agregate. Voluntary arrangement.




covenant that runs with the land:


a covenant imposed by one owner which subsequent owners must comply. Requirements: intent, legally enforceable, touch and concern the land, privity of estate.




equitable servitudes:


baseline background understanding about use of land which you and your neighbors are subject.


zoning ordinance:


compulsory understanding/limit on how you may use your land.


easements:


interest in land of another that is non possessory and non exclusive.  A voluntary but binding arrangement. Allows one person to use another person’s property. The property owner is limited in how they can use the property subject to easement. So that ‘easemented’ property has reduced value. Thus it falls under the statute of frauds.  If it doesn’t comply, then it’s a license. a dynamic ongoing relationship between owner of easement and the owner of estate that’s burdened by the easement. The deed must describe that relationship, who’s entitled to do what and when.  non exclusive b/c it doesn’t exclude the true owner from the property subject to the easement. And the true owner can grant the easement to multiple people at once. THe original holder of easement has no exclusive right to easement. Only grantor must sign.





license:


a revocable easement. Revocable b/c it’s not compliance w/ statute of fraud.





easement appertinant:


gives right to whomever owns a certain parcel of land the benefit of the easement on another parcel.


easement in gross:


gives right to an individual to the benefit of the easement on another parcel w/o regard to property ownership. harder to figure out the scope of this easement.





reserve:


may not reserve an easement in a third party in most jurisdictions. A can’t create a deed for B with an easement reserved for C. (need separate deed).




reservation:


provision in a deed creating some new servitude which did not exist before as an independent interest. ie preserve some interest (such as reserving an easement across the portion of land sold for your own transport to the main road.)  the exact location isn’t critical, it’s the purpose. So no statute of frauds problem.





exception:



a provision in a deed that excludes from the grant some preexisting servitude on the land. (ie: convey land with the exception of the land on which the road lies). can create statute of frauds problems if the exact location isn’t well described in the deed.






license:


revocable oral or written permission given by occupant allowing licensee to do some act that otherwise would be trespass. When an easement doesn’t satisfy statute of frauds, you have a license.





rules of construction:


construe ambiguous deeds in light most favorable to the person who did not author the deed  or against grantor. depends on state law.


easement by necessity:


exception to statute of frauds in which an easement can be created orally when the neighbor has historical use of the road and no other outlet. Basically an irrevocable license.




irrevocable license:


created by estoppel. It would be unfair to dominant estate to revoke the license


easement by estoppel:


unconscionable injury resulting from denying enforcement of the oral agreement after one party has been able to do something in reasonable reliance on the agreement. (ie building the house). What started out as an act of accommodation is taken advantage of by the other neighbor and made permanent.




easement by prescription:


basically adverse possession of an easement. very open, very notoriously, continuously asserted a right to this use of another’s land. No exclusivity req’d b/c easements are non exclusive rights in land.  But must be open and notorious enough that real owner could have reasonably discerned the use and attempted to stop or give permission for it (reassert exclusive right).




easement by implication:


a necessary use of another’s property that is apparent to the servient estate. This is created when the original serv and dom owners intended there to be an easement but never recorded one under stt of frauds. Has to be obvious/common sense that an easement would be necessary. But the standard is not strict necessity. Policy: strongly against isolated parcels, so this system allows land to be used.




lost grant theory of prescription:


historically proscriptive easements have diff origin than adverse possession. It’s older (Roman law) and based on idea of the existence of an ancient grant, the exact terms of which have been lost to memory.




quasi easement:


when one utilizes part of his and for the benefit of another part. It’s like an easement in your own land. This becomes a reservation when part of the land is conveyed and the quasi easement is retained.





easement appurtenant


is one that benefits the dominant estate and "runs with the land," an easement appurtenant generally transfers automatically when the dominant estate is transferred.





easement in gross


benefits an individual or a legal entity, rather than a dominant estate. The easement can be for a personal use or a commercial use. Commercial easements are freely transferable if the burden on servient estate is the same. policy: easement in gross for non commercial purposes is a relationship with an individual who comes on your property. With a commercial entity it’s anybody related to the commercial entity coming on your property so one owner is like another.





negative easement:


the right of the dominant owner to stop the servient owner from doing something on the servient land. You cannot get a negative easement by prescription.




conservation easements:


a species of negative easement or covenant that preserves scenic or historic areas from certain development activities.




uniform enviro covenants act:


limits use of property to facilitate redevelopment. It’s a brownfield site turned to some other use (parking lot, factory, park, etc). Property is restricted in such a way that it is put to limited and safe uses. conditions must be committed to public memory to prevent abuse by future landowners.




equitable servitudes:


a promise that runs with the estate or person. Recognized and enforceable in equity courts and provide equitable remedies and subject to equitable defenses.




real covenant:


a promise respecting the use of land that runs w/ the land. Enforcable by law and has legal remedies.


horizontal privity:


privity between promisor and promisee. The relationship must be tenurial (ongoing, such as landlord tenant or life estate holder and remainder). In most states a grantor, grantee relationship will satisfy this.




vertical privity:


privity between the conveyor conveyee and his successor. if the vert privity is fee simple absolute the promisee or successor may enforce the original horizonal promise against the promisor’s successor. If it’s not fee simple absolute, the promisee or successor cannot enforce against promisor’s successor. Successor to promisee need not have fee simple absolute to enforce against the promisor or promisor’s successor.




spencer’s case test:


the promisee can enforce against the successor to the promisor when: 1) intent to run (there’s evidence of an understanding between promisor and promisee that the burden would run to successors in interest). 2) horizontal privity (only in some states).  3) promise touched and concerned the land (related to the use and enjoyment of the land).




affirmative easement:


a promise to do something on the servient estate for the benefit of dominant estate. Will not be upheld under common law.





Covenant at law:


requires horizontal privity. Can collect damages, but not special damages.


easement enforced at equity:


requires a negative promise (no affirmative promises) . Can collect special damages (injunction, etc).


touch and concern:


requirement of a covenant or easement. it’s not really defined. Wing it. Talk about impact on land (naponsit) vs. personal effects.


spot zoning:


arbitrary and capricious zoning change made only to benefit a private party. Generally it involves a major zoning change in just one small area.


taking:


govt seizing and compensating for property or restricting use in such a way that it’s useless to the owner. If it’s eminent domain for the public good or a taking meant to prevent a nuisance its fine. If it’s a public nuisance, no compensation is needed. It’s a bit harder to make this argument with private nuisance.




zoning:


two policies under which it’s OK: prevent nuisance and providing for the public interest in safe, healthy, pleasant, beautiful, productive, valuable neighborhoods. Courts defer strongly to legislative intent unless it’s arbitrary and capricious. Was the govt objective to be implemented by a reasonable stragegy (RB test, basically).




just compensation:


it’s market value at its current use. No intrinsic value taken into consideration.




physical taking is always compensible. And restrictions that reduce value to zero is compensible. BUT restrictions that only limit the economic exploitation available on the site are not.  Need not compensate for every restriction.




takings compensation test:


1) character of the action (physical taking v theoretical restriction); 2) the nature of interference with the parcel as a whole, factors: extent of reduction in economic value, impact on investment backed use, whether current use can be carried on, whether property owner could make fair return on the property, whether there is reciprocity of advantage.






affirmative easement


an easement in which the servient estate promises to do something. not enforceable.


particular estate


an estate other than the four fee simple estates


Fee Simple Estates


1.  absolute

2.  conditional

3.  determinable

4.  subject to a condition subsequent      


general warranty deed/covenant of general warranty:


warrants the title against all defects of title. Damages only.


special warranty deed:


warrants only against the grantor’s own acts. Acts or defects in the deed from the grantor’s predecessors won’t be warranted.





quitclaim deed:


no warranties on the deed of any kind.




Covenant of seisin:


the grantor warrants that he owns the estate that he purports to convey. Damages only.




covenant of right to convey:


a grantor warrants that he has the right ot convey the property. Damages only.


covenant of further assurances:


grantor promises that he will execute any other documents required to perfect the title conveyed. Damages only.


Statute of limitations on present covenants:


begins to run  at  the date of delivery of the deed


statute of limitations on future covenants


begins to run at the time of eviction or when the covenant is broken.


Fee simple determinable


F.S. That is automatically divested back to conveyor upon some condition being met.


Indefeasibly vested remainder


subject to no further requirements than the expiration of the prior particular estate.  Is certain to present interest at some time in the future.

A to B for life, then to C and his heirs.


Remainder vested subject to partial defeasance.


The remaindermen are a class of people whose membership may be increased.  Certain to become a present interest, but share of the estate may decrease with addition of new members.
A to B for life, then to the children of B.


Remainder subject to complete defeasance


subject to a condition subsequent.  May be one which operates to defeat an interest after it has already vested.  A statement that a remainder is vested is not a statement that the remainder is certain to become possessory.
A to B for life then to C and his heirs on the condition that if the premises are used for other than residential purposes A shall have the power to enter and terminate the interest hereby transferred. 


Remainder subject to a condition precedent/contingent remainder.


A remainder subject to condition precedent exists if at the time it is created, it is not possible to point to any person and say such person would take, if all interests should now end. 
A to B for life, remainder to the children of B.  (B has no children, so???)