Property

Question 1

General rule

Capture of a fugacious resource

Answer 1

First into possession and control owns the resource

Post: mere pursuit is insufficient for ownership

Question 2

Exceptions

Capture of a fugacious resource

Answer 2

1. Ratione Soli: owner of land owns fugacious resource
2. when possession and control is difficult, custom dictates who owns

Ghen: custom of whaling established control

Question 3

Additions

Capture of a fugacious resource

Answer 3

1. Wrongful interference: even if fully not in control, wrongful interference messes with constructive possession; especially trade; lawful competition ok
2. Animus revertendi: domesticated creature or animals that return to private property are not fugacious resource
3. Rule of increase: offspring belong to mother’s owner

Duck case
barry bonds case: contructive owner (with wrongful interference) & actual possessor split the ball’s proceeds

Question 4

General rule

Rule of finders - lost property

Answer 4

Finder wins against all except previous possessor and true owner

Question 5

Exceptions

Rule of finders - lost property

Answer 5

Owner of locus in quo owns if:
attached to soil
trespassor finds
in private location?
owner is in occupied area?

Question 6

rule

Mislaid property

Answer 6

owner in locus in quo owns until true owner returns

Question 7

rule

finder of abandoned property

Answer 7

finder owns unless private property

Question 8

Elements of

Adverse possession

Answer 8

1. Continuous for statutory period
2. Exclusive and actual
3. Open and notorious
4. hostile and under claim of right
5. (CA) property taxes

AP creates NEW TITLE

Question 9

In depth:

Continuous for statutory period

Answer 9

1. continuous for how it is normally used. so summer home = summer only; undeveloped = dump trash
2. Tacking = privity = anything above a mere trespassor
3. Disability = note date of entry & when disability ends

Question 10

in depth

Exclusive and Actual

Answer 10

1. Exclude others as a true owner would
2. some jxns require improvement, cultivation, or boundries

Question 11

In depth

Open and notorious

Answer 11

1. reaonable true owner would notice that someone is on property
2. No de minimus: if de minimus, owner would need actual knowledge of intrusion

Question 12

Open and notorious with chattels

Answer 12

1. Discovery rule: clock begins ticking when owner knows or should have known cause of action
2. Make a demand rule: clock begins ticking when owner makes a demand and gets rejected

Question 13

in depth

Hostile and under claim of right

Answer 13

1. Hostile = unauthorized
2. claim of right = acting as if he owns property
3. State of mind needed: no state of mind, good faith, bad faith
4. Color of title: faulty instrument, must enter and possess and only get that part they possess

invited guest cannot become AP

Question 14

intervivos

Acquisition by gift

Answer 14

1. intent of present, immediate transfer
2. Delivery
3. Acceptance

Question 15

in depth

intent of present, immediate transfer

Answer 15

1. no future gifts
2. condition subsequent is ok
3. condition precedent not ok

Question 16

in depth

Delivery

Answer 16

1. Actual: generally, if it can be handed over, it must be
2. constructive: difficult or impossible to physically hand over (keys to a car)
3. Symbolic = ok in CA
4. Third party: doner to donee’s agent = instant ; doner to doner’s agent = wait until delivery

Question 17

Causa mortis

Gift

Answer 17

1. same elements but there is an expectation of a death
2. revocable
3. if die to another reason, instantly revoked

Question 18

Limits on property

Public property

Answer 18

must open your private land to public so they can enjoy navigable waters

just like a municipality, home owner association must do same

Question 19

Limits on property

Right to abandon

Answer 19

1. intend to abandon property to world
2. affirmative voluntary act of abandonment
3. subsequent new party appropriates with intent to own

Cannot abandon land

Question 20

Limits on property

Right to destroy

Answer 20

generally you can UNLESS public policy reasons: value of neighbors land, criminal law, specific duties to others.

Question 21

Limits on property

Right to transfer

Answer 21

1. no total restraints on alienation
2. reasonable restraints are ok: charity, Life estates, against a specific person, and only for a limited time

Question 22

Estates

Life estate

Answer 22

1. cannot AP
2. subject to law of waste
3. MUST BE IMMEDIATELY FOLLOWED BY SOMETHING, OTHERWISE REVERSION

Question 23

Rules of will construction

Answer 23

1. no partial intestacy
2. when it is difficult to tell, read a vested remainder to a contingent remainder
3. LOOK AT INTENT TO GRANTOR AND CONSIDER IT AS A WHOLE

Question 24

Law of waste

Answer 24

1. Affirmative waste: waste caused by affirmative acts of the tenant
2. permissive waste: tenant’s failure to make normal repairs to property, not stopping deterioration
3. not waste to continue use of a mine, waste to open a new mine

life estates and leaseholds

Question 25

Rule on remainders

Answer 25

1. LE, CR, CR ... 2. LE, VR, EI ...

Question 26

# STEPS Rule against perpetuities at common law

Answer 26

1. is it a CR, EI, or VRSTO 2. who are the lives in being at the time of grant 3. Ask what will vest this 4. Say: will we know forsure within 21 years of the deaths of LiB @ time of grant if it will vest? 5. Blue line the remainder ## Footnote Will = at death Deed = at delivery

Question 27

# RAP class gifts & rule of convenience CL

Answer 27

1. all members of a class grant must meet all conditions within 21 years of death of LiB, or entire future interest is void 2. Rule of convenience: Class will close upon first vesting & no new born children will share; others alive are in class

Question 28

Reforms to RAP

Answer 28

1. Reduce technicalities: any gift to class set to vest after 25 years is now 21 by judicial construction 2. Cy pres 3. Wait and see ## Footnote 90 years for CA wait and see any gift to "widow" is presumed to be then-living spouse

Question 29

# Co-tenancies Tenancy in Common

Answer 29

1. Default state (reverts back) 2. alienable, devisable, descendible 3. 70%, 30%

Question 30

# Co-tenancies Joint tenancy

Answer 30

1. Right of survivorship 2. four unities: 3. title: acquire title from same instrument 4. time: at the same time 5. interest: equal shares 6. right to possession 3. only alienable 4. 100%,100% ## Footnote CL: need for unities or else TiC Modern: explicitly state Right of Survivorship

Question 31

# Co-tenancies transfer of JT ## Footnote majority rule

Answer 31

1. can transfer to yourself without strawman to sever JT 2. a lease will not sever JT; dont need permission ## Footnote transfer makes it TiC (not lease)

Question 32

uniform death act and slayer statutes

Answer 32

1. survive JT by 120 hours, or split 2. murder severs JT, makes it TiC, killer loses right to survivorship

Question 33

# Co-tenancies Tenancy by Entirety

Answer 33

1. all four unities plus marrigage 2. right of survivorship 3. only alienable and only with permission 4. creditors cannot reach TbE unless IRS 5. cannot unilaterally destroy ## Footnote Not in CA make sure you are officially married first. cant cut spouse out in Will

Question 34

Co-tenancies and mortgage ## Footnote does a mortgage survive the death of a mortgager as a lien on the property?

Answer 34

1. Title theory: mortgage severs JT or TbE 2. Lien theory: does not sever JT 3. NO, does not survive because the interest disappears on death b/c survivorship ## Footnote Liens are a promissory note, you take possession when i cannot pay back

Question 35

Partitioning

Answer 35

1. Cotenants have an absolute right to sell (unless TbE) 2. in-kind partition 3. partition by sale

Question 36

# two requirements Partition by sale ## Footnote something tells me i can never partition by sale

Answer 36

1. physical attributes of the land are such that in-kind are impractible or inequitable 2. interest of owners would be promoted by partition by sale ## Footnote think of like a weird fraction unreasonable restraint on alienation!

Question 37

Ouster and rent from co-tenants

Answer 37

1. cotenants do not owe eachother rent unless an agreement or an ouster

Question 38

requirements for an ouster?

Answer 38

1. barring physical entry onto property 2. denying co-tenants claim to title and asserting complete ownership ## Footnote phyiscal bar - a letter not enough 2nd requirement is near AP but remember cannot AP a cotenant

Question 39

# general rule profits, expenses and taxes of cotenancies

Answer 39

cotenants share taxes, expenses, profits, and rents from 3rd parties ## Footnote absent an agreement to the contrary

Question 40

Accounting

Answer 40

Demand for proportional receipt of profits and rents

Question 41

# and exception contributions

Answer 41

1. demand to eachother for proportionate payment of expenses, repairs, and taxes 2. However, tenant in sole possession may be held to pay taxes and expenses exclusively without contributions (can deduct from rent from 3rd party however)

Question 42

if one cotenant makes repairs/improvements

Answer 42

1. some jxn do not require contribution at time of repair/improvement 2. upon partition, improver can recoup costs 3. upon partition by sale, improver gets credit from increased sale price 4. upon physical partition, improver gets improved aspect

Question 43

# Leaseholds Term of years tenancy

Answer 43

1. for any fixed period 2. can end on a condition 3. no notice of termination necessary

Question 44

# Leaseholds Periodic tenancy

Answer 44

1. at a fixed period that continues until notice of termination (year to year, month to month) 2. notice of termination: 1 year = 6 months at latest; equal to the length of period for shorter periods 3. CL: untimely notice of termination = automatic renewal

Question 45

# Leaseholds At will

Answer 45

1. one or both can end the lease at will 2. if lease gives LL the right to terminate, law will give same right to T 3. if lease gives T only, determinable LE 4. most jxn require notice of termination = rent payment period 5. can end by death, assignment by T, transfer LL, waste by tenant

Question 46

# Leaseholds At sufferance

Answer 46

1. Either evict = ends tenancy 2. accept rent and consent to new tenancy = periodic tenancy created = to timing of rent ## Footnote holdovers monthly rent = month-to-month

Question 47

# unlawful discrimination in leases Civil rights act and FHA

Answer 47

1. no racial discrimination 2. prohibits discrimination based on a series of enumerated characteristics in sale, rental, and ads of property

Question 48

# Unlawful discrimination in leases exceptions

Answer 48

1. single family dwellings with no broker or ads, can discriminate based on sex/gender in small properties (renting a room) ; owner who lives w/ roommate 2. in CA: you can advertise 3. Wetzel: landlord has a continuing duty to allow enjoyment without discrimination ## Footnote this applies to owners some jxn's allow occupation discrimination (no lawyers!)

Question 49

Duty to put tenant in possession

Answer 49

1. English rule: duty to put tenant into possession 2. American rule: no duty, tenant must evict = only give right to possession

Question 50

# Sublease v. assignment Assignment

Answer 50

1. first tenant conveys ENTIRE interest to next tenant 2. creates privity of estate b/w original landlord and second tenant 3. thus second tenant owes rent directly to landlord 4. privity of K stays with first tenant and landlord 5. landlord can take rent from first tenant or next tenant but not both ## Footnote privity of estate = a relationship in land privity of K = a relationship in contract

Question 51

# sublease v. assignment Novation

Answer 51

1. agreement from landlord to release first tenant and create new contract with next tenant 2. releases that tenant from liability ## Footnote must be an explicit thing otherwise privity of K remains

Question 52

# sublease v. assignment Sub-lease

Answer 52

1. first tenant conveys less than ENTIRE interest in next tenant (even a day less) 2. creates no privity of estate b/w landlord and next tenant and no privity of K 3. thus no rent 4. first tenant still has privity of K ## Footnote the actual words of conveyance are not dispositive, was the entire thing given? if yes, assignment

Question 53

Restrictions on assigning/subleasing and dumpor's rule

Answer 53

1. Majority rule: can unreasonably and arbitrarily withhold consent to an assignment for whatever reason except discrimination 2. Minority rule: L must provide a reason on commercially viable grounds for rejecting the sublease 3. Rule in Dumpor's case: if allow one assignment, allow future ones unless agreement to contrary ## Footnote minority rule = CA for the minority rule = allowed to deny if competitor or if next tenant is financially unstable

Question 54

# Self-help? Eviction

Answer 54

1. No self help to regain possession of land 2. use summary proceedings!

Question 55

# what if tenant abandons? option 1

Answer 55

1. Accept it and terminate the lease 2. T will owe rent due @ that time & possible future damages such as any ads they have to do

Question 56

# what if tenant abandons? option 2

Answer 56

1. Reject surrender & enforce lease 2. CL: no duty to mitigate 3. Modern: LL must mitigate by making reasonable effort to find new tenant 4. what is reasonable? advertise, anything you can 5. if you relet at only half price, tenant must pay difference = make the tenant whole 6. if landlord for more? some jxns allow extra to go to original tenant

Question 57

# what if tenant abandons? option 3

Answer 57

1. re-take possession and relet 2. T is still bound to the lease but L will be collecting from next tenant

Question 58

# Eviction Actual eviction

Answer 58

1. T is deprived of any part of physical access or told to get out 2. legal duties are done ## Footnote "dont use this part anymore" = actual eviction

Question 59

# Eviction constructive eviction

Answer 59

1. Rule: deprive tenant of substantial use and enjoyment of the property and render the premises unsuitable for the purposes for which they are leased ## Footnote home -> not home office -> not office

Question 60

# Eviction Constructive eviction remedies?

Answer 60

1. leave within reasonable time and no more rent 2. stay and sue for damages 3. there is no eviction for a brief problem "transitory & fleeting" ## Footnote when it is neighbors being a nuisance or an issue, how much control does the landlord have over them?

Question 61

Implied warranty of habitability

Answer 61

1. Maj: only for residential apartment leases 2. *Elements*: 3. **Defect** dangerous to human health (local health codes can help) 4. **Notice** 5. **Reasonable** period for repair 6. Touchstone: not convenience, comfort, niceness

Question 62

Implied warranty of habitability remedies

Answer 62

1. quit and stop paying rent 2. remain and repair and charge LL/deduct from rent 3. Remain and reduce or withhold rent 4. AND 5. sue for damages

Question 63

# Landlord Common law tort-based duties

Answer 63

1. maintain premises reasonably free of dangerous defects @ **time of lease** to public 2. no fradulent misrepresentations about premises 3. disclose latent defects 4. maintain common areas safely!!!!! (lobby, staircase, parking) 5. CL no general duty to repair but if they do, not negligently 6. some jxn, try to abate nuisance & immoral conduct 7. seasonal or shortterm furnished dwelling, strict liability for defects 8. no retaliatory eviction !!! ## Footnote all these are negligent standard

Question 64

Tenant duties

Answer 64

1. pay rent 2. commit no waste 3. maintain easy normal wear and tear (lightbulb) 4. no illegal purposes 5. take care of guests 6. inform LL of damages 7. vacate at end of term

Question 65

Law of Fixtures

Answer 65

1. once movable chattels become attached to the land 2. personal prop becomes real property 3. the more complicated and more permanent more likely to be fixture 4. more substantial damage to remove = more likely to be fixture 5. not yours anymore bro

Question 66

Contract of sale

Answer 66

1. contract --> closing 2. at contract, you promise good and merchantable title 3. at closing, transfer of title 4. in between, inspection ## Footnote at closing, contract merges into deed and disappears no merchantable title = unknown encumberance for example = buyer entitled to rescind

Question 67

Statute of frauds for contract of land

Answer 67

1. description of property 2. price 3. signature of party to be charged

Question 68

# Statute of frauds for contract of land exception

Answer 68

1. Estoppal: in reasonable negative reliance 2. can get specific performance (make it happen!) 3. can get damages

Question 69

# 3 rules Doctrine of equitable conversion

Answer 69

1. Majority: the buyer of property is considered owner as of date of sale contract, even if closing and physical transfer takes place later thus buyer is responsible for any risk of loss after date of K 2. minority: does not follow until deed is handed over 3. other: risk of loss = in possession

Question 70

# at Common Law Duty to disclose defects

Answer 70

1. Caveat emptor: no duty to disclose defects, inspect it yourself 2. exceptions: 3. seller cannot actively conceal defects 4. seller cannot make active misrepresentations 5. fiduciary duty: must disclose ## Footnote examples for each actively hide a hole in floor does it leak? nah bro chill lawyer client

Question 71

Modern erosion of caveat emptor

Answer 71

1. Most jxn (CA): hold that a seller has affirmative duty to disclose all known material defects 2. Material? important to decision to buy or afffects value or desireability of property 3. Known? actual knowledge or should have known depending on jxn ## Footnote stigma statutes: no need to disclose aids or murder

Question 72

Remedies for breach of sales K ## Footnote know which is best for seller and buyer

Answer 72

1. **Specific performance: one party forces other party to go through with it (best for buyer)** 2. damages: seller breaches by not giving marketable title (american rule: expectation damages back / english: only get deposit back) 3. **Recession & retention of damages: buyer breaches and seller has option to rescind and keep down payment** 4. lien = seller breaches and buyer places lien on property

Question 73

# The Deed General warranty deed

Answer 73

1. Promises of myself and everyone behind me 2. best one for buyer

Question 74

# The Deed Present covenants of GW deed

Answer 74

1. Covenant of seisan = I own it 2. Covenant of right to convey = I can sell it 3. Covenant against encumberance = no encumberances | Majority rule: do not run with the land ## Footnote breached at moment of passing Iowa: all 6 run with land

Question 75

# The deed future covenants of GW deed

Answer 75

1. Covenant of GW - if anyone with superior title comes, ill compensate you then (after court ruling) 2. Covenenant of future assurance (i will make sure to sign anything remaining) | run with the land

Question 76

# The Deed Special warranty deed

Answer 76

I only make those promises as to myself cannot sue seller for things before him

Question 77

# the deed Quitclaim deed

Answer 77

no promises whatsoever so dont talk to me

Question 78

# the deed Elements of a deed

Answer 78

1. description of property conveyed 2. consideration: a dollar and other valuable consideration 3. signature of seller 4. promises ## Footnote consideration: you do a low amount for when you get sued cause that is what you owe lol

Question 79

# the deed delivery deed

Answer 79

1. delivery = all types 2. **intent to immediately disposses** ## Footnote cannot continue to keep using it or do a letter with both names like the case or try to sell it later

Question 80

# delivery of deed Estoppal by deed

Answer 80

1. when grantor conveys land to grantee that grantor does not own, and the grantors conveys the title to the land 2. if grantor later acquires title to land, grantor is estopped to deny he had title at the time of the deed and that has passed to grantee ## Footnote automatically passes

Question 81

Mortgage

Answer 81

it is a remedy, I ask for 150k and give bank the right to forclose ## Footnote one property can have multiple mortgages

Question 82

# Mortgage Priorities ## Footnote general rule

Answer 82

1. Mortgages have priority over each other in order which they are made, first to last

Question 83

# the order when forclosure sales happen

Answer 83

1. court and attorney meh 2. Payment to loan that was foreclosed 3. payment to junior lien/mortgage (anything subsequent) (not to senior liens) 4. anything remaining to debtor ## Footnote not to senior liens = THESE SURVIVE and run with land buyer will probably pay alot less to quickly pay back to the senior mortgage/lien b/c you do not want mortgage on your house that someone else has to pay

Question 84

# Mortgage Priorities exceptions

Answer 84

1. Purchase money mortgage has priority over anything (start here and go subsequent by time) 2. Marshalling = w/ **separate properties** = "senior lender use other land to see if you can get money back before foreclosing both" ## Footnote PMM = loans that purchase the land are PMM Marshalling is a fairness thing between banks, a request, a plea for mercy

Question 85

Foreclosure principles

Answer 85

1. borrower must receive notice of action 2. notice to the public to attract bidders 3. if the sale does not cover unpaid debt, lender can seek deficiency judgment against borrowers personal property 4. these have protections = if sale does not yield fair market value, no deficiency judgment 5. CA goes step further = no deficiency judgment on PMM

Question 86

Protections in procedure of foreclosure

Answer 86

1. Reinstatement = right to reinstate loan if late payment within certain period by paying late payment 2. CL equity of protection = **BEFORE** foreclosure sale, if you are in default, you win lottery & you have right to pay back full loan = foreclosure must be called off 3. Statutory equity of protection = borrower has right to pay a set amount (usually foreclosure price) to successful bidder w/i a statutory period **AFTER** foreclosure ## Footnote one more

Question 87

Motion to set aside the sale

Answer 87

1. some irregularity in the process or if winning price too low 2. "shock the conscious" & some extra element of unfairness 3. Duties of good faith and due diligence by lender conducting sale 4. inadequacy of price is not sufficient to demonstrate bad faith unless the price is so low it shocks the conscious 5. if no good faith = set aside = an intentional disregard of duty or purpose 6. due diligence = only one representative there, and only bid enough to make lender whole, no attempt fair market price (no ads), quickly sold at higher price

Question 88

Transfers of mortgage

Answer 88

1. lender can transfer at will 2. borrower can transfer a note as well but will often contain "due on sale" 3. However, 3rd party can receive and **assume** the obligations of the note, becoming personally liable (o.g borrower will remain personally liable unless a novation) 4. 3rd party can take property **subject to** note, and not personally liable (although land can still be foreclosed if note not paid) ## Footnote due on sale = this is why it is unlikely, that if you have a mortgage on your house and you decide to sell half way in, mortgage stays attached to property and could be passed to new buyer and they could assume the debt but more likely the moment you sell and get money, you pay off remaining mortgage

Question 89

# Recording system CL rule

Answer 89

The interest first in time wins

Question 90

# Recording system Exception 1

Answer 90

1. BFP w/ no actual, constructive, inquiry, or imputed notice 2. if you got it for free, you aint the BFP ## Footnote actual = dude i sold this to dumpy too constructive = its recorded bro, the world knows, you should have checked inquiry = you would know if you bothered to check it out, someone was living there

Question 91

# Recording system A recorded deed gives proper notice if

Answer 91

1. meets formal requirements (some jxns want notarized) 2. no technical defect (wrong name or property description) 3. Properly indexed 4. within Chain of Title (NO wild deeds)

Question 92

# Recording system In a race statute state

Answer 92

1. the first to record their interest wins against all other claimants to the interest, no matter when the other claimants got their interests or what they know of others’ interests. 2. we do not care about BFP 3. if bank is second in line, their mortgage is gone

Question 93

# Recording system Race statute wording

Answer 93

“No conveyance of an interest in real property shall be valid against third parties (subsequent people, prior people) until it is recorded according to law.”

Question 94

# Recording system Notice statute state

Answer 94

1. the BFP without notice who acquires an interest wins against a prior interest holder. 2. Obviously, once someone records the interest, no future BFP without notice can ever come to exist because after recording everyone in the world is deemed to have notice of the interest. ## Footnote the day you record, no BFP can come and take away

Question 95

# Recording system Notice statute language

Answer 95

“No interest in real property shall be good against subsequent purchasers for a valuable consideration and without notice, until the same be recorded according to law.”

Question 96

# Recording system in a race-notice statute state

Answer 96

the BFP without notice who records first wins against a prior interest holder who has not recorded yet. The BFP must be a BFP and record first to win. (CA)

Question 97

# recording system race-notice language

Answer 97

“Every conveyance of real property is void as against any subsequent purchaser or mortgagee of the same property, in good faith and for a valuable consideration, whose conveyance is first duly recorded. . . .” ## Footnote look for first, previously, prior

Question 98

# 2nd exception Shelter Rule

Answer 98

1. Grantee from a BFP is protected like the BFP and prevails against all interests of which the BFP had no notice, even if the grantee has notice. 2. The only person to whom the BFP cannot sell under the Shelter Rule is back to his own grantor (to prevent collusion). ## Footnote we want to protect BFP ability to sell

Question 99

# Recording system How a BFP can wipe a mortgage

Answer 99

O owns blackare and gets mortgage on blackacre from Bank A Bank A does not record next day, O sells to B = no knowledge or notice of mortgage BFP = mortgage is gone! because her ownership supersceded the prior interest

Question 100

# Recording system extras ## Footnote Mother... does not recording make invalid deed?

Answer 100

1. Mother hubbard clause does not give notice 2. Recording is not necessary for a valid deed! just for against 3rd parties

Question 101

Wild deed

Question 102

# Servitudes What is a servitude?

Answer 102

1. An encumbrance as a right to limited use or control of a piece of land without possession of it → a burden on one’s estate for another’s benefit. 1. Easements, licenses, profits, real covenants, and equitable servitudes.

Question 103

# Servitudes License

Answer 103

1. permission to enter the licensor's land = revocable oral or written permission to do something that would otherwise be a trespass 2. Can become irrevocable: 3. coupled with another interest = perhaps combined with profit 4. by estoppal 5. CA requires written licenses ## Footnote you cannot transfer a license

Question 104

Profit a prendre

Answer 104

1. a right to enter land one does not possess in order to take some resource (timber, minerals, game, fish) ## Footnote similar to easement

Question 105

# Easements generally ## Footnote two types two ways

Answer 105

1. appurtenant = attached to a dominant piece of land 2. in gross = personal to an individual 3. affirmative = permitting activity on servient land 4. negative = preventing activity on the servient land

Question 106

# Easements Express Easement

Answer 106

1. created by a deed, will, or written instrument that grants or reserves an easement 2. can reserve an easement for a third party 3. once recorded, it does not need to be identified in future grants

Question 107

# Easement Implied by prior use

Answer 107

1. severance of title to land held in common ownership 2. There is an existing, "apparent" (upon reasonable inspection, and not necessarily visible) and continous use when severance occurs 3. There is reasonable necessity (some jxn strict necessity) 4. some jxn require the parties intend the continued use ## Footnote when land is split up, existing use might persist over newly formed parcels

Question 108

# Easement by estoppal ## Footnote or the irrevocable license

Answer 108

1. A **license** can no longer be revoked if the licensee expends labor or money in good faith and the licensor expects that reliance will occur 2. CA and other jxns require writing

Question 109

# Easement By Necessity

Answer 109

1. severance of title to land held in common ownership 2. CA and other states require that the parties intend the continued use 3. Majority = strict necessity = no legal alternative = if it can be done it must be done = exhaust all other possibilities no matter how expansive 4. Minority = reasonable necessity = access is inadequate, costly, difficult 5. two ways to get it the easement 6. cheapest route 7. last parcel to landlock you = apportion the costs from the unlucky parcel that got forced the easement | The necessity must be created @ time of severance of title of commonland ## Footnote usually used to create access for landlocked parcel

Question 110

# Easement By prescription ## Footnote basically by adverse possession

Answer 110

1. open and notorious = such that a diligent owner would discover it 2. adverse and under claim of right = same as AP 3. actual and exclusive = some states permit minimal other users or general public, looser than AP 4. Continuous and uninterrupted = same = if the owner interrupts the use sufficiently to cause it to cease and it restarts 5. majority = must be a physical prevention 6. minority = mere notice is sufficient to interrupt

Question 111

# Easement Transfer of easements

Answer 111

1. Appurtenant = pass with the dominant and servient estates, unless agreement otherwise 2. in gross: 3. CL = not transferable 4. minority = only commerical are transferable 5. one stock rule = all transferees must act unanimously 6. Modern = all are transerfable unless the parties would not have expected the result or unreasonable burden occurs

Question 112

# Easement Scope

Answer 112

1. inferred from the intent of the parties and type of easement = presumed that anything reasonably necessary to the use and enjoyment of the easement is permitted = tech change 2. CL = Easement cannot expand in scope to serve non-dominant land 3. Minority = expanding easement | there is more ## Footnote prescriptive easement = less susceptible to change because no original intent

Question 113

# [](http://) Termination of easements ## Footnote 10

Answer 113

1. agreement to release the easement 2. express easement ends if the servient parcel transferred the BFP and e.e was not recorded 3. easement by necessity ends when the necessity ends 4. destruction of the servient estate 5. abandonment with the intent to abandon permanently 6. Estoppal = servient owner relies on the dominant owner's apparent abandonment. Non-use is not sufficient 7. Merger = servient and dominant estates are acquired by one person 8. Prescription = owner interferes with AP 9. Expiration = if easement was temporary 10. Condemnation = govt exercise eminent domain

Question 114

Negative easement

Answer 114

1. at CL = right to stop neighbor from: 2. blocking light 3. blocking air flow 4. removing building support 5. interefering with flow of water 6. modern = views, solar access historical and agricultural conservation easements

Question 115

# to burden the successor = possibility of being sued Real covenants

Answer 115

1. promise must be in writing 2. the parties must intend to bind successors 3. promise must touch and concern the land 4. covenanting parties must be in horizontal privity 5. successor must be in vertical privity and take the same estate 6. successor must take with notice of the burden

Question 116

# benefit successor = right to sue Real covenants

Answer 116

1. promise in writing 2. parties must intend to bind successors 3. promise must touch and concern the land 4. successor must be in vertical privity and take same or lesser estate

Question 117

Equitable servitude

Answer 117

1. writing or a common plan 2. intent of covenanting partners to bind successors 3. the promise touches and concerns the land 4. successors must have notice 5. dont need privity cause it runs with land = attached to the land not the estate

Question 118

Termination of and defenses

Answer 118

1. Release = written release 2. merger 3. acquiescence 4. unclean hands 5. abandonment 6. laches 7. eminent domain 8. estoppel 9. relative harm 10. prescription 11. changed conditions 12. constitutional restrictions