property II

Implied warranty of habitability

**Residential Only**. Residence must be "fit for habitation" Examples: loud noise, central air, bugs, smoke--pretty much safety, health and comfort

Allocation of Foreclosure proceeds

1. Administrative Fees 2. foreclosing mortgage 3. juniors 4. mortgagor

3 Kinds of deeds and what they protect against

1. General Warranty: warrants against all defects in title whether arising b4 or after grantor took title 2. special warranty: warranties only against grantor's own acts (for example, grantor not liable for mortgage from grantor's predecessors) 3. Quitclaim: No warranties of any kind

2 Indexes for recording

1. Grantor-grantee 2. Tract

reqs. of equitable servitude

1. Intent 2. Touch and Concern 3. Notice

Lateral and Subjacent liability for sucking down someone's dirt (2 standards)

1. Land is undeveloped = strict liability 2. Land is developed = must prove negligence

What are 8 other ways of terminating a covenant?

1. Merger 2. Formal release in writing and recorded 3. Acquiescence (P breaches and tries to enforce against D) 4. Abandonment (similar to acquiescence) 5. equitable doctrine of unclean hands (refuse enjoinment of a violation of a servitude where P also violates it) 6. Equitable Dosctrine of Laches (P unreasonably delayed to enforce servitude) 7. Estoppel/D relies on P's conduct 8. eminent domain

When don't you need a writing for land transaction? 2 Exceptions

1. Part Performance: (a) take possession AND (2) paying part of price or making valuable improvements 2. Estoppel: unconscionable injury would result from denying specific performance

3 Requirements of an Implied Easement

1. Unitary Parcel/a quasi easement existed 2. Prior apparent and continuous use/quasi dominant and quasi servient estate creates notice 3. Reasonable necessity at the time of severance

2 Requirements for easement by necessity

1. Unitary ownership 2. Strict necessity at the time of severance (prior use not required) (reasonable necessity for minority) (is to avoid landlock and useless pargonis)

4 requirements of prescriptive easements (plus the fifth requirement in a minority of Js)

1. adverse use 2. Open and notorious 3. actual use 4. continuous use for the statutory period

Why was the cov to maintain robert E lee statue not upheld in Taylor?

1. against public policy 2. changed conditions States have statue statutes nowadays regarding removal of statues located on public property

Can prior successor sue subsequent ones? analysis/rule under implied reciprocal servitude theory vs. party beneficiary theory

1. implied reciprocal servitude theory: Where a general scheme is made after someone takes the property, they cannot sue subsequent purchasers 2. party beneficiary theory: all buyers are beneficiaries of other buyers and all should benefit from the covenant (can sue)

Requirements to make easement run with land

1. in writing (specific location, signed by grantor) 2. Notice

4 remedies to nuisance to achieve efficiency and fairness

1. injunction (Morgan nauseating gas case) 2. Let activity continue if D pays damages (Boomer and Spur) 3. Let activity continue and deny all relief 4. Stop activity if P Pays damages

What are LL's 5 main duties?

1. keep premises habitable 2. disclose latent defects 3. make repairs as promised 4. abstain from misrepresentations 5. abate nuisances

When does easement end?

1. release/agreement to terminate (can also relocate this way) 2. merger/unitary ownership 3. abandonment (look at intent not to use it ever) 4. estoppel/ reliance that easement wouldn't be used 5. end of necessity

Requirements for a deed to be a deed

1. writing 2. identify grantor and grantee 3. describe property there's other stuff too, these are the biggies

Requirements of a cov

1. writing 2. intent to bind successors 3. touch and concern the land 4. privity of estate between covenanting parties 5. notice (unless trying to enforce benefit)

What is an easement?

A right to use another's land or a right of way

What's one way to find that the rule is not valid? Curto, the swim case involving different swim hours for woman

A rule that violates the fair housing act is invalid--discriminatory policies on the basis of race, color, religion, sex, familial status, or national origin

3 types of notice

Actual: personally aware Constructive: instrument is recorded properly Inquiry: based on the facts, reasonable person would make inquiry

What does "touch and concern" mean under Neponsit?

Affect the legal rights of the parties as landowners Example: pay to ensure common enjoyment of the rights and easements shared by all owners in a subdivision

Implied Warranty of Quality

After closing, can sue commercial vender/builder for residential purpose

Alienability/subleases--what is an approval clause?

Agreement to consent to LL to sublease

Acceleration clause

All money owed on default

How to imply a negative equitable servitude based on Sanborn v. Mclean?

All surrounding lots show the restriction (inquiry notice)--so even if restriction wasn't in the deed a "general plan" or "scheme burdens and benefits all plots

By when is marketable title required to be given?

At closing (consider if defect can be cured based on reasonable standard)

Relative Hardship Doctrine

Bars equitable relief absent Doctrine of Laches or P's misconduct. Doesn't bar damages, but looks at whether enforcing cov would cause more hardship than benefit the owner of the dominant estate

Bonus Question: where P is suing bc they were kicked out of their coop, what do courts apply?

Business Judgment rule since frivolous claims harm the community

What is a unique way of terminating a covenant?

Changed conditions

What happened in River Heights Associates LP v. Batten/why did the covenant still stand?

Changed conditions doesn't apply to the surroundings of your plot. In this case, roads became 10 laned, the whole district was commercial, but a few plots still had to uphold a covenant BECAUSE: "for a change of condition to nullify restrictive covenants, the changes must be so radical as to practically destroy the essential objects and purposes of the agreement" which occurs both outside and inside (such as no one wanting to buy the property) the property

What is a fixture and when can't they be removed?

Chattel attached to the property that becomes part of the property. Can't remove when (1) substantial damages OR (2) no intention to take fixture at end of lease

Standard for witholding consent for commercial v. residential leases

Commercially reasonable (will they comply to covenants of lease, competition?) Residential--no Bad faith

Constructive Eviction definition and two instances

Condition of leased premesis amounts to breach of implied cov of quiet enjoyment (which is implied in all leases). 1. LL substantially interferes with use and enjoyment 2. T gives notice and LL fails to resolve prob w/in reasonable time

Restatement test of reasonableness

Consider whether gravity of harm outweighs utility of actor's conduct Gravity of harm: extent of harm, social value, suitability to locality and burden of P avoiding the harm Factors of Utility: Social value, suitability of locality, impracticability of D preventing Harm

Duration of covenant/equitable servitudes?

Determined by parties intent (unless it's a conservation or found to be a necessity easement)

Direct vs. indirect restraints in common interest communities, such as a direct restraint on alientaiton vs. an indirect restraint limiting value of property (pets, paint color, signs)

Direct: a prohibition on transfers w/out consent is less likely to be upheld bc the court balances "reasonableness" Indirect is often more valid unless there's no clear rational justification

How to do you invalidate a foreclosure?

Either (1) fraud or (2) the price "shocks the conscience or is grossly inadequate"

Race statute

First person to properly record wins

Estoppel by deed

Grantor breaches right to convey and then acquires title and then conveys to a third party, OG grantee wins

Euclidian Zoning

High uses (residential) are permitted in low (commercial) but not vice versa

Covenants--What is needed for the burden to run with the land?

Horizontal Privity/grantor grantee relationship or landlord tenant relationship

Deficiency Judgments

If foreclosure can't provide enough money, buyer is primarily liable, mortagor is secondarily liable (absent novation) if "assumption," buyer not personally liable for deficiency if "subject to mortgage"

Diff between appurtenant and in-gross?

In gross gives specific right to an individual (Jiggly John can operate his business on my shabat)

Delivery of Deed

Intent of immediate transfer + delivery to grantee or third party

Whatabout trade fixtures?

Intent to remove is presumed, so it depends on substantial damage

intentional and unintentional

Intentional: purpose of causing result or knowledge result is substantially certain to occur Unintentional: Negligent, reckless, or ultrahazardous

What is the scope of an implied easement?

Its OG use

What's the difference in determining damages under K jurisdiction v. Property jurisdiction?

K: have to mitigate damages Property: don't have to mitigate

What is the majority (restatement) approach to general schemes and the minority approach?

Majority: general plan = uniform restrictions, at least to an extent Minority: won't pull a Sanborn, require writing/no implied negative restrictions

Duty to disclose

Minority--caveat emptor--no rescission w/out inspection Majority: seller must disclose material (affects value/whether would buy based on reasonable person standard) and latent (not obvious) defects

Is vertical priv strict? What's the difference between having the burden v. benefit run with the land?

More relaxed for benefit to run-applied to lesser interest carved out of the estate Must take exact same interest for burden to run/enforce against servient estate

What are the effects of foreclosure?

Mortagor's interest is terminated as well as junior mortgagees if they're given notice. Seniors still have a mortgage

Due sale provision

Mortgagee will be paid in full upon resale

Bonus Question: what are some reasons to argue against condo rules? (Dissent in Lakeside)

Must find public policy, **condo rule only affects interior space, or the rule is "devoid of humanity"--the court in Lakeside couldn't find a policy to overrule the association, however.

What if someone needs a service pet?

Must provide "reasonable accommodations"

who has burden of getting rid of old T when new T wants to move in?

New T, not the LL

can real covs arise from estoppel, implication or prescription?

No

Stigma Statute

No duty to disclose prejudicial facts (guy had AIDS)

Under traditional rule, why can't adverse possessor enforce cov or have cov enforced against them?

No vertical privity/didn't succeed OG owner's estate

Can someone have an easement in there own land?

No--and creating a unitary parcel destroys an easement

Does title insurance insure acerage?

Not unless it's specified

Can LL self help for defaulting tenant/kick out tenant themselves?

Only if commercial

Jost test of reasonableness

P must show substantial level of interference (don't balance social value)

Zoning is a state...

Police power

All 6 covenants in the deed, and which ones are present v. future

Present: 1. Seisin: grantor owns what he's conveying 2. Right to convey the property 3. Against encumbrances (mortgages, liens, easements, covs, zoning violations) Future: 4. General warranty: grantor will defend against LAWFUL claims of assertion of superior title 5. Quiet enjoyment: not disturbed in possession and enjoyment by assertion of superior title 6. Furhter assurances

Coming to Nuisance defense: Private v. Public effect of the defense

Private: bars relief Public: P must indemnify D for D to be ordered to stop

Installment land K

Purchaser is at risk bc loses land and payments if default (no allocation of proceedings)

Tenant Account Theory

Reduce damages by new tenant's amount

What is a license and when is it treated like an easement?

Revocable permission (written or otherwise) to trespass 1. incidental ownership over chattel (improving well or taking timber) 2. Estoppel/reliance

Notice Statute

Subsequent purchaser for value did not have notice of unrecorded instrument

Race-Notice Statute

Subsequent purchaser is protected against unrecorded instrument if no notice and properly records

What is a nuisance?

Substantial and unreasonable interference with another person's use and enjoyment of land (private) or right common to general public (public)

Actual Eviction

T is deprived of occupancy in some or all of premises

Lakeside Village--lady brings cat to condominium--what's the rule on whether condominium rules are valid?

These rules are presumptively valid unless unreasonable (against the community as a whole) or unconstitutional or against public policy, so long as the rule is filed as a general scheme

What happens during the executory period? What happens to title and liability in event of damage?

This is the transfer of equitable title, buyer is now liable if property is damaged

What is a marketable title?

Title is not subject to reasonable doubt as would create a just apprehension of its validity in the mind of a reasonable, prudent and intelligent person--seller has fee simple and title is free from encumbrances

What's the duration of implied easement?

Until unitary ownership (or forever)

Land Transactions require . . .

Writing, description of property, and price (satisfy SOF!)

Can equitable servitudes be implied or obtained by prescription?

Yes to implied, no to prescription

Subsequent Purchasers suing a dickhead who should have followed the servitude: O gives to X, Y, and Z, in that order and there is an express residential covenant. X violates this and builds titty house (where your mother works), can Y and Z sue for an injunctions?

Yes, they are successors to the benefit of X's cov to O not to build titty house

What is a common interest community?

a common scheme of development (required) that is essentially a covenant and need notice

Under Village of Euclid, zoning regulations are constitutional unless

arbitrary and unreasonable, having no substantial relation to public health, safety, morals, or general welfare

Wild deeds

break the chain of title/no proper notice

When can landlord sue subtenant? Is OG lessor still liable?

can sue if priv of K or priv of estate. OG liable under priv of K absent a novation

Nuisance must be . . .

continuous (at least to really be substantial)

restament approach to covenants

court enforces any appropriate remedy by looking at negative promises (treat like easement) and affirmative promises (allocates benefits and burdens based on who can bettere perform and what the parties' expectations are)

Easement Appurtenant definition and the main types

creates dominant and servient estate. Includes 1. Express easements (like affirmative or negative) 2. Implied Easements 3. Prescriptive Easements

Murphy case, what must mortgagee exercise when finding foreclosure price?

due diligence in finding fair market value

The Standard State Zoning Enabling Act

empowers municipalities to regulate and restrict the height, number of stories, and size of buildings and other structures . . . in accordance with a comprehensive plan/government objective

Statutory redemption

happens after foreclosure proceedings are completed--mortgagor can reacquire property by paying foreclosure sale price

Equity of Redemption

happens between default and conclusion of foreclosure. Can't be waived. mortgagor can pay off mortgage.

what is needed for benefit to run?

horizontal and vertical privity

Harper v. Paradise--why was an ineffective deed considered inquiry notice?

it referenced an effective deedfrom years ago, so foreclosing party should have inquired

Judicial foreclosure

mortgagee sues and if prevails, public auction (mortgagee can bid on house)

Constructive and actual eviction can be both

partial or total

What is a mortgage

promissory note (written promise) + Mortgage (right to foreclose if default)

When does easement by necessity terminate?

when necessity terminates