Interests potentially voided by RAP
- 1. Contingent remainders
- 2. Executory interests
- 3. Vested remainders subject to open
- 4. Options and rights of first refusal (unless connected to lease)
- Doesn't apply if gift is from charity to charity
- "Created by TTIP (time, title, interest, possession) and clear intention to create in writing"
- "Right of survivorship, right to partition"
- "Destroyed by partition, severance (one of TTIP broken, e.g., by conveyance, mortgage in a title state, contract of sale, creditor's sale)"
Termination of Easement
- 1. Unity of ownership (of both estates)
- 2. In valid release (in writing to satisfy SoF)
- 3. Abandonment: intent manifested plus physical act
- 4. Estoppel:
- a. Some conduct or assertion by dominant owner
- b. reasonable reliance by the servient owner
- "c. A change in position (e.g., servient owner building on the easement)"
- 5. Termination by prescription (servient blocks use for statutory period)
- 6. End of necessity
What is required for the creation of a reciprocal negative servitude by Common Plan
- 1. Intent (inferred from a common scheme for development)
- "2. Notice of the covenants (actual, inquiry, record)"
Factors for Equitable Mortgage
- 1. debt or promise of payment by deed's grantor
- 2. grantee's promise to return land when debt paid
- 3. amount advanced to grantor/debtor lower than property value
- 4. degree of grantor/debtor's financial distress
- 5. parties' prior negotiations
Quasi-easement (easement implied by law)
- 1. Prior to time tract divided there was a use of servient reasonably necessary to dominant part use
- 2. The use must be apparent and continuous at time tract divided
- "(do not confuse this with a pure necessity easement, which can always arise if truly necessary)"
Adverse possession HELUVA
- 1. Hostile
- 2. Exclusive (excluding others)
- 3. Lasting (statutory period)
- 4. Uninterrupted
- 5. Visible (open and notorious)
- 6. Actual (plus constructive or leasing)
What are the three types of waste centering around life estates?
Affirmative waste - natural resources (only allowed if necessary for repair of the land)
Permissive waste - (life tenant is obligated to keep land and structures in a reasonable state of repair and pay interest and taxes)
Ameliorative Waste (liable at common law but now can do it if it does not decrease the value and the life remainderman does not object or the neighborhood has changed)
In discussing future interests what is the rule in shelly's case?
If an instrument created a life estate in A and gave the remainder to his heirs then this rule says that the remainder is not recognized and A takes the remainder.
What is the doctrine of worthier title?
A remainder in the grantors heirs becomes a reversion in the grantor
What is different about the creation of covenants and equitable servitudes?
Covenants may be created only by writing
Equitable servitudes may arise from a common scheme of development of a residential subdivision
What are some defenses against the inforcement of an equitable servitude
Neighborhood has changed
What are the 6 covenants included in a general warranty deed?
Right to convey
What are the three requirements of a valid deed?
- In writing
- Signed by the grantor
- Reaonably intdifying the parties and the land
Delievered and accepted by the buyer. (intention to make a deed presently effective)
What issues can make a title "reasonably free from doubt" and thus unmarketable at time of closing?
Defects in the record chain of title (adverse possion)
Encumbrances (signficent encroachments)
What are two types of irrevocable liscenses?
Liscens coupled with an interest
What are a landlords three duties to the tenand?
Duty to deliever actual possession of the property
Implied Warranty of Habitability
How is an easement created by necessity?
when a land owner sells a portion of his property and by this division deprives one lot of access to a public road or utility line
How could an easememt be implied without existing use?
When lots are sold in a subdivion with reference to a recorded plat or mapp that also shows streets leading to the lots.
What are the 4 ways that an easement can be created?
Implicatioin (from prior use and without existing use)
What is the test for an implied easement from existing use?
Prior to the division of a single tract,
An Apparent and continous use exists on the servient part
That is reasoanbly necessary for the enjoyment of the dominant part
The court determines that the parties intended the use to continue after the division of the land
What is the holdover doctrine in dealing with landloard tenant law?
If a tenant continues to possess the property after his term, the landlord may evict him or bind him to a new period tenancy.
What is the rule against perpetuties?
An interest must vest if at all 21 years from the end of a life in being at the time of the creation of the interest.
The rule applies to executory interets, contingent remainders, vested remainders subject to open
What can sever the right of survivorship an turn a joint tenancy into a tenancy in common?
Inter vivos conveyance
Contract to convey
What is the transferabiltiy of remianders and exectory interests?
Vested reaminders are fully transferable, dscendible, and devisable.
Today contingent remainders and executory interests are freely transferable as well.
Contingent remainders and executory are descendible and devisable provided survival is not a condition of the interests taking.
In future intersts there are two broad types of interests: Reversionary interests and remainders. What are the four types of remainders?
Indefeasibly vested remainder
Vested remainder subject to open
Vested remainder subject to total divestement
What are the two types of future interests?
Reversionary intersts (possibiltiy of reverter and right of entery, and reversions these are rights in the grantor)
Remainders (future interest in a thrid party)
What are the three types of defeasible fees?
Fee simple determinable with a possibiltiy of reverter
Fee simple subject to condition subsequent with a right of reentry
Fee simple subject to an executory interest
Marketable title Seller must give:
- 1. Proof of title (deeds in chain of title)
- 2. Title free of encumbrances
- "3. Valid legal title, but not until day of closing"
- Seller must be given time to cure if buyer notices defect in title
- "Otherwise, buyer can get"
- 1. Rescission
- 2. Damages
- 3. Specific performance (with price abated)