Term
| "to a"/ "to a and his heirs" |
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Definition
| FSA transfer: "to a"- words of purchase "and his heirs"- words of limitation |
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Term
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Definition
| Intent to convey- operative words for ASSIGNMENTS |
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Term
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Definition
| Intent to convey- operative words for DEEDS/ MORTGAGES |
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Term
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Definition
| Intent to convey- operative words for DEEDS/ MORTGAGES |
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Term
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Definition
| Intent to convey- operative words for LEASE |
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Term
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Definition
| Intent to convey- operative words for DEEDS/ MORTGAGES |
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Term
| "if --- survives than ----" |
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Definition
| survivorship requirement, this is a condition precedent |
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Term
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Definition
| Intent to convey- operative words for LEASE |
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Term
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Definition
| Intent to convey- operative words for LEASE |
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Term
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Definition
| Intent to convey- operative words for ASSIGNMENTS |
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Term
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Definition
| Intent to convey- operative words for Quitclaim Deed |
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Term
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Definition
| Intent to convey- operative words for Quitclaim Deed |
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Term
| "remise release and forever quitclaim…. All my right, title and interest" |
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Definition
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Term
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Definition
| Intent to convey- operative words for Quitclaim Deed |
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Term
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Definition
| used to determine whether subsequent purchasors can enforce / be obligated to honor the covenant; this DOES NOT deal with the validity of the contract between the parties |
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Term
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Definition
| Intent to convey- operative words for DEEDS/ MORTGAGES |
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Term
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Definition
| unascertained. The original __ could have died and the widow could have remarried. ___ assumes that his widow will remain this way indefinitely which makes this an EXCEPTATION INTEREST (not a recognizable property interest) |
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Term
| "to A and B as joint tenants with right of survivorship AND NOT TENANCY IN COMMON" |
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Definition
| this creates JT w RS, the presumption of court to create TIC must be overcome by terms that demonstrate the intent of grantor to specifically create JT w RS |
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Term
| "to A and B as joint tenants, remainder to their survivors |
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Definition
| creates joint LE with CR in survivor; it is not a JT w RS b/c this does not include the power of a JT to unilaterally server his interest from JT and become TIC |
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Term
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Definition
| TIC created, no express terms of survivorship; "to a and B as JOINT TENANTS" may be sufficient to create JT w RS but it depends on the courts interpretation |
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Term
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Definition
| Intent to convey- operative words for ASSIGNMENTS |
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Term
| 10 ways to terminate an easemnt |
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Definition
| 1) By Terms of the grant, 2) Purpose of the Easement Ends, 3) Merger, 4) Forfeiture for MISUSE 5) Release, 6) Abandonment, 7 ) Estoppel, 8) Prescription, 9) Recording Acts, 10) Eminent Domain |
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Term
| 2 assumptions of bailment |
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Definition
| 1) the purpose of holding posession is for safekeeping/repair/transportation/ some other purpose more limited than dealing with the item as the bailor would, and 2) thr return of the object/ chattel in the same or substancially undamaged condition is assumed |
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Term
| 2 elements to be a Bona Fide Purchasor |
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Definition
| 1) paying value of land, 2) lacking notice of prior conveyance |
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Term
| 2 exceptions to good title |
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Definition
| 1) true owner is tricked tricked by fraud/ misrepresenation into voluntarily parting with the title, 2) dishonest purchaser misrepresnted his identity ----> these are cases of VOIDABLE TITLE |
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Term
| 2 major rules of construction |
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Definition
| 1) a testator (deceased person with a will) intended to give away all his property through his wil and any will that does not give awat all property is disfavored opposed to one that give away all property, 2) grantor/ testator conveys full interest in the property unless the intent to pass a lesser estate is clearly expressed or necessarily implied by the terms of the deed/will |
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Term
| 2 requirements of posession |
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Definition
| 1) intent to possess by possessor 2) possessors actual controll/holding the property, ie exclusive control |
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Term
| 2 tests to determine Touch and concern (real covenant/ equitable servitude) |
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Definition
| 1) Bigalo test, 2) Burton Test |
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Term
| 2 traits of modern Tenancy by the Entirties |
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Definition
| 1) creditors can only forclose on TBE if both spouses are liable for the debt/ executed the mortgage 2) both must execute the deed of sale to the property (if selling the property) --> the bank cannot collect the property from nondebtor spouse after the debtors death, but can collect any rents from the property if it is being rented/ spouse not living on the lland |
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Term
| 2 types of descipriuon by quantity |
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Definition
| 1) an undivided fractional interest/ fractional part of the tract ( half of lot one) 2) a certain width or area ( the west 5 acres of blackacre) |
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Term
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Definition
| 1) present possessory interest (present interests), 2) future possessory interests (future interests) |
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Term
| 2 types of FI (who holds) |
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Definition
| FI held by transferor/ grantor, 2) FI held by 3rd party |
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Term
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Definition
| 1) inter vivos gift, 2) causa mortis |
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Term
| 2 types of vested remainders subject to divestment |
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Definition
| devestment based on the occurrence 1) before the future interest holder takes possession, 2) after FE divested after it becomes possessory --- important b/c the type determines how to describe it case 1 "VR subject to DIVESTMENT in _____(type of estate)___" 2) "VR in _____(type of estate)_____ SUBJECT TO DIVESTMENT) |
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Term
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Definition
| 1) annexed to the property 2) must be part of some larger purpose on land beyond itself 3)intent to attach the fixture to the property |
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Term
| 3 elements REQUIRED for implied easement by necessity |
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Definition
| 1) common owner severed the property, 2) necessity for egress and ingress existed at the time of severance, 3) ingress and egress are strictly necessary FOR THE LANDLOCKED PARCEL |
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Term
| 3 requirement of Equitable servitudes |
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Definition
| 1) intent to bind successors, 2) touch & concern, 3) Notice |
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Term
| 3 requirements for Real Covenants |
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Definition
| 1) Intend to bind successors, 2) Touch & Concern, 3) Privity of Estate--- requiring Horizontal and vertical privity |
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Term
| 3 requirements for Shelly's Case |
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Definition
| 1) freehold estate (usually a LE) given to 1st transferee, 2) R limited to the heirs of the 1st transferee made in same instrument, and 3) FREEHOLD AND REMAINDER MUST BE IN SAME QUALITY (either both Legal, Equitable or Legal&Equitable) |
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Term
| 3 requiremnts for inter vivos gift |
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Definition
| 1) doner's intent to transfer ownership of the item to the donee/receiver, 2)delivery of the object to the donee/reciever, 3) Donee/ receivers acceptance of the gift |
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Term
| 3 scinerios of deed without identified grantee |
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Definition
| 1) intended grantee is entitled to equitable relief of REFORMATION OF THE DEED(to include grantees name) or SPECIFIC PERFORMANCE( deed is treated as specifically performable K) 2) Holder of the deed may be held to have authority (either EXPRESS OR IMPLIED) to fill in the name of the grantee or another as grantee; 3) Grantor subsequent attempt to sell the land will be ESTOPPED TO DENY THE VALIDITY OF THE DEED |
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Term
| 3 types of concurrent interest |
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Definition
| 1) Tenancy in commmon, 2) Joint Tenancy with right of Survivorship, and 3) Tenancy by the entirety (each may be PI or FI, and held in any FS Estate) |
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Term
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Definition
| 1) Warranty deeds, 2) Special warranty Deed 3) Quitclaim deed |
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Term
| 3 types of defeasable estates |
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Definition
| 1) Fee Simple Determinable, 2) FS subject to Executory Limitation, 3) FS subject to Condition Subsequent |
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Term
| 3 types of FI in Transferees |
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Definition
| 1) vested remainders 2) contingent remainders 3) Executory interests |
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Term
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Definition
| 1) Term of years, 2) Periodic Tenancy, 3) Tenancy at will |
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Term
| 3 types of recording acts |
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Definition
| 1) Race, 2)Notice, 3)Race/ Notice |
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Term
| 4 basic requirments for implied easements |
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Definition
| 1) unity of ownership is severed, 2) use was in place before the severance, 3) use was visible or apparent at the time of the severance, 4) the easement is NECESSARY for the enjoyment of the Dominant tenement |
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Term
| 4 Requirements for Adverse Possession |
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Definition
| The SoL does not start to run unless the possession relied on is: 1) Actual 2) Open & Notorious 3) hostile and Adverse (under a claimof right) 4) Exclsuive and Continuous |
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Term
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Definition
| 1) actual possession 2) open & notorious 3)exclusive controll 4) hostile or adverse 5) continuous (additional elements considered by courts: claim of good title/ right, good faith/ bad faith, improvement/ cultivation/ enclosure, payment of property taxes upon the land) |
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Term
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Definition
| 1) seisin, 2) right to convey, 3) against encumbrances (1-3 present covenants); 4) warranty, 5) quiet enjoyment, 6) future assurances (4-6 future covenant) |
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Term
| 6 Common methods of describing land within a deed |
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Definition
| 1) description in reference to the recorded plats of US GOVERNMENT SURVEYS, 2) descr in reference to VOLUNTARY/ PRIVATE plats or plats of official STATE surveys, 3) desc by refer to DESCRIPTIOMS APPERAING IN RECORD other than plats or to non-record facts, 4) descr by refer to OWNESHIP (ex. all land of X), 5) decription by specified boundaries (METES AND BOUNDS), 6) Description by QUANTITY |
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Term
| 6 requirements for a perscriptive easement |
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Definition
| use must be: 1) actual, 2) open and notorious, 3) hostile and adverse, 4) continuous and uniterrupted, 5) exclusive, 6) use must be for a sufficient time |
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Term
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Definition
| property that the owner has VOLUNTARILY reliquished all ownership of w/o refernce to any particular person or purpose; it is not necissary to show an INTENT TO RELINQUISH BOTH TITLE AND POSSESSION |
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Term
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Definition
| property that the true owner intentionally and voluntarily relinquished with the intent not to own the ocject any longer; he must not have transferred the rights to the object to another |
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Term
| Abandonment (Termination of Covenants and Equitable Servitudes) |
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Definition
| requires 1)intent to abandon, 2) an act of abandonment. Both of these are required for individuals for personal covenants or a high number of landowners for common schemes. Common schemes can be abandoned (which is usually proven through considerable/ substancial change in the neighborhood) |
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Term
| Abandonment (termination of easement) |
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Definition
| requires 1) intent to abadon the easement, which is VERY HARD TO PROVE 2) subsequent nonuse. Non-use of easement coupled with OTHER ACTIONS WHICH INDICATE AN INTENT TO ABANDON (NB building non-temporary sturcture which prevents use is insufficient) |
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Term
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Definition
| a complied summary of all the publicly-recorded documents affecting the land in question |
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Term
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Definition
| the bailee must accept the delivered property; this doesn not have to be actual acceptance but constructive acceptance also works |
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Term
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Definition
| When a grantor goes before an officer designated by statute (normally a notary) and validates that the deed is an executed instrustument in complaiance with local statutes; ACKNOWLEDGEMENT ONLY NECESSARY WHEN EXPRESSLY STATED IN STATUTE. When required this entitles the deed to recordation AND requires other proof of execution |
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Term
| Acquiesence (Termination of Covenants and Equitable Servitudes) |
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Definition
| when a benefitted owner allows/ takes no action against multiple & repeated violations of a covenant can be estopped from enforcement of the covenants b/c of the prior lack of enforcement; acquiesence DOES NOT CARRY OVER in cases of multiple covenants, so acquiesence of one cov will not terminate a different cov that has been enforced |
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Term
| Actual (1st AP Requirment) |
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Definition
| Possession is actual & Exclusive if there is an actual possession with an actual use & enjoyment of the land which an ‘average owner’ of such land would use and exercise this property |
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Term
| Actual delivery (bailment) |
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Definition
| bailor physically hands the property over to the bailee |
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Term
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Definition
| subsequent purchasor/ or purchasor's agent had actual notice/ knowledge of a prior claim |
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Term
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Definition
| exclusive physical control of the thing combined with a manifested intent to exclusively control/possess the thing on the possessor’s own account and in his own name; it is sufficient to intend to control the item yourself without intending to keep the item forever |
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Term
| Actual Use (Prescriptive easement) |
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Definition
| requires necessiary physical presence on the land, must be affirmative easement & use; claimant cannot compell his neighor to remove a structure for light & airb/c this is an implied negative easement |
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Term
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Definition
| item is essencial to the functionality of a system on the property (ex. Oil burder to heating) |
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Term
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Definition
| a person who is not the legal owner of the property, who may have entered as a trespassor, who uses the property for enough year to become the owner of the property. This defeats all the rights of the true/rightful owner EVEN IF OWNER HAS LEGAL OR RECORD TITL |
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Term
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Definition
| When the period of SoL has run the presumption is that the person in possession has the right to possession which cannot be overcome by the former owner; the party in possession has an enforceable right to possession superior to everyone as the TRUE OWBER; in court the owner/ defendant must please this case by SoL running as an affirmative defense |
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Term
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Definition
| a covenant that requires the owner of the burnened estate to perform some act/ pay money; these include the duty to maintain or repair |
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Term
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Definition
| the easement grants the easement holder the right to enter onto the servient tenement for a specific purpose (ex. Use part of land to park) |
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Term
| Affirmative/ valuntary waste |
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Definition
| this occurs when the life tenant actively changes the property's use/ condition, usually which substancially decreases the property value |
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Term
| Alianable/ Assignable/ Transferrable peropety |
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Definition
| property which the owner can sell or give it away during the owners lifetime (throug inter vivos transfer) |
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Term
| Alternative Contingent Remainder |
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Definition
| one of the two named persons (who is not the grantor) takes to the exclusion of the other person based on whether or not the condition precedence occurs; if the condition OCCURS one party gets possession, if the event FAILS TO OCCUR the other party gains possession. THIS CANNOT OCCUR IS A PARTY'S REMAINDER IS VESTED |
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Term
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Definition
| the ability of cotenant who incurred expenses that are neccissary for collecting the rent revenue for the property (if the rent is shared by the cotenants); this does not force contribution from others if expenses EXCEED REVENUES; he may be able to offset repairs or improvements ONLY TO THE AMOUNT THAT IS TRACABLE TO THE AMOUNT OF RENT RECIEVED( ie neccissary expenses if no rent increase, or the rational cost to increase rent rates) |
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Term
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Definition
| attachment to the property, usually the determinative factor for fixtures; can be either actual or constructive |
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Term
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Definition
| demand and refusal may be required |
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Term
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Definition
| title passes ONLY AFTER SoL has run |
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Term
| AP SoL and FS subject to CS |
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Definition
| statute of limitations does not begin to run untill owner of reentry excercises his right; a minority of states begin SoL to run as soon as the condition occurs |
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Term
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Definition
| easement can be sold, gifted, devised, inherited, or otherwise conveyed; assignability is dependant on several factors, most important being is easement IN GROSS or APPURTENANT |
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Term
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Definition
| the conveyance by a lessee of the entire remaining balance of his estate for years |
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Term
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Definition
| if tenant transfers entire interest to another VP is maintained |
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Term
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Definition
| the act of witnessing an instrument in writing at the request of the party signing the doc & signing the instrument as a witness |
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Term
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Definition
| person whom the bailor transfers his property to; this person is held strictly liable for failure to redeliver |
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Term
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Definition
| bailement requires a delivery of posession; without this delivery there is no bailment. 3 types of delivery 1) actual delivery 2) constructive delivery, 3) symbolic delivery |
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Term
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Definition
| the transfer and delivery by an owner or prior possessor (bailor) of posession of personal property to another (bailee): 1) the purpose of holding posession is for safekeeping/repair/transportation/ some other purpose more limited than dealing with the item as the bailor would, and 2) thr return of the object/ chattel in the same or substancially undamaged condition is assumed |
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Term
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Definition
| the property owner who transfers his property to another through a bailment |
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Term
| Bargain and sale deed (statute of uses) |
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Definition
| this raises a use in the grantee by reason of his payment to the grantor of a valuable pencuniary consideration, which was executed by the statute of uses and vested the corresponding legal estate in the grantee |
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Term
| Benefits that Touch and Concern the Land |
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Definition
| must be analyzed seperately from burden t/c; the benefit must run with the land ex. Mainting property values of NEIGHBORING/ adjacent parcels |
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Term
| Benefitted Estate (Real Covenant/ Equitable Servitude) |
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Definition
| the property whose owner benefits from a covenant or servitude |
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Term
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Definition
| A bona fide purchaser of stolen goods is not protected against the claim of the owner UNLESS the SoL has run on the owner. The risk is on the purchaser (since a secret, not open & notorious, holding of the property is presumed for stolen goods and running of SoL is unlikely) |
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Term
| Bigalo test for common scheme |
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Definition
| does common scheme force owner to do or refrain from doing things on property? |
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Term
| Bigalow test (real covenant/ equitable servitude) |
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Definition
| To do or refrain from doing a physical act on the leased premises: For the burden of a covenant to run, the covenant must directly affect the nature or quality or value of the thing demised or the mode of enjoying it by taking away from the promisor rights and privileges he or she would otherwise have as O of the land, absent the covenant. For benefit to run, it must benefit p/e by beneficially affecting both the nature or value of the p/e’s interest in the land or mode of enjoying it. |
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Term
| Burden running with land, even when benefit is personal |
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Definition
| in most juris allow burden to run even when benefit is personal by 3 approaches: 1) burden running despite personal nature, 2) the covenant WILL NOT RUN inless the covenant T/C BOTH BURDENED AND BENEFITTED LAND, 3) covenant will not run as real covenant T/C both burd and benefitted land, ES is enforced (even personal benefit) so long as the BURDEN T/C BURDENED LAND (last rational is used when the original party is seeking to enforce the covenant) |
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Term
| Burdens that Touch and Concern the Land (Real Covenant and Equitable Servitudes) |
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Definition
| covenants that restrict use usually constitute t/c; covenants to pay money are insufficient to satisfy t/c unless this monetary payment is a contractual obligation in which money is spent to maintain the property/ a common area (homeowners association payments or insurance payments where repayment SPECIFICALLY GOES TO RUBILDING DESTROYED AREAS) |
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Term
| Burened Estate (Real Covenant/ Equitable Servitude) |
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Definition
| the property whose owner is BOUND by a covenant to act/ bound not to act |
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Term
| Burton Test (real covenant/ equitable servitude) |
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Definition
| (to pay money or to do something elsewhere than on land): The burden of the promise must benefit the promisor as owner of the burdened estate in land. |
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Term
| Burton test for common scheme |
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Definition
| Does the owner have to pay money to do something or pay to refrain from doing this SOMEWHERE ELSE than the land in question (considerations for courts determination 1) close proximity 2) common use) |
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Term
| Can a single person be bound as a promisee and promisor? |
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Definition
| YES, under a covenant a person can receive the benefit and maintain the burden of the same covenant (think residential use only cov agreement, benefit they use land burden only use land for residency) |
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Term
| Carrying charges payment by cotenant |
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Definition
| if no Tenant is using the land with the responsibility to pay the CARRYING CHARGES (Insurance/ Taxes/ Interest), if a single cotenant pays he can seek contribution; all cotenatnts HAVE AN OBLIGATORY DUTY TO PAY insurance/ taxes/ interests; IF PAYING COTENANT IS ONLY PERSON USING THE PROPERTY CONTRIBUTION IS NOT REQUIRED |
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Term
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Definition
| a gift made when the donor has an apprehension/ expectation of his own death and delivers the item with the intention that possession/ ownership starts immediately after he dies NOT AT THE TIME OF THE TRANSFER' gift is revocable if donor recover from the illness/ situation that brough fear of death |
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Term
| Changed conditions (Termination of Covenants and Equitable Servitudes) |
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Definition
| covenant in a subdivision can be found uneforcable because the cahnges in circumstances that the benefit is substancially effected and does not justify the burden. 2 types 1) changes within the subdivision, 2) changes outside the subdivision |
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Term
| Changes OUTSIDE the subdivision |
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Definition
| courts reluctant to eliminate the covenant upon the property b/c this will follow the DOMINO THEORY that each sucessive outer rung of houses will use this change to eliminate the cov |
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Term
| Changes within the subdivision (Change of conditions, (Termination of Covenants and Equitable Servitudes)) |
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Definition
| substancial changes either cancel the covenant or make it unenforceable |
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Term
| neighbor builds upon another’s land (AP) |
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Definition
| the court is likely to make the encroached sell this land to the encroacher if this building is erected without notice/ dispute of land prior to building’s completion |
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Term
| Disability Statutes for AP |
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Definition
| Extend the period of statute of limitations for a period of time after limitation ends; can be as short as 2-5 yrs, MD extends limitations a few years after disability ends, some jurisd extends to point where statute of limitations begins running when disability ends |
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Term
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Definition
| Ap must be using the land with the intent to claim against everyone including the true owner, and intent to exclude everyone including true owner. (NB Some jurisdictions require that AP enter with belief that he was actual/ true owner of the land [color of title]) |
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Term
| Claim of Right (Prescriptive easement) |
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Definition
| this is hostile and adverse use; claimant uses another's property without regard tp the owners rights and without permission. Personal hostility not required, cannot enter land with permission. A gate or invalid deed could satisfy entrance w/o permission depending on the circumstance, if the use is WAY beyond peritted then the claimnant could have grounds that he used w/o permission----> courts use rebuttable presumption to determine permission (details EE pg. 486). |
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Term
| Class closing by RULE OF CONVIENCE (VR subject to open) |
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Definition
| a class closes whenevr any member can demand possession or distribution; this cannot occur before the termination of the preceeding LE or preceeding term for years or untill divestment condition occurs in FSS Executory Limitaion. (Note class members idenified within the class can still share interest even if they have not satisfied condition precedent at time member demands possession) |
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Term
| Class that closes biologically/ naturally (VR subject to open) |
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Definition
| this is a class that closes b/c no one else can be born into the group |
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Term
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Definition
| a person enters into color of title when he claims ownership pursuant to a written document/ deed that proports to transfer property to the person & document is deffective (usually done through a fualty deed or sherriff's tax sale deed either of which was defective); this can signifigantly shorten the SoL period for AP. AT END OF AP PERDIOD AP GAINS OWNERSHIP OVER EVERYTHING DESCRIBED IN THE TITLE |
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Term
| Commercial easements in gross |
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Definition
| further moneymaking opportunity (not for the grantee's own personal enjoyment or pleasure); usually assignable, and only made unassignable by specific circumstances. (think purchasing phone company/ Railroad/ water company; without assignability the purchased companies lines cannot be used and the company could not operate). If assignable USUALLY inheritable. |
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Term
| Common Identifiers for FS subject to CS |
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Definition
| "provided that" "but if" "on the condition that" "provided, however" |
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Term
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Definition
| this gives owners in a subdivision standing to sue & enforce the BENEFIT NOT THE BURDEN of the covenant b/c this benefit is appurtenant to the land is not personal to the developer; this standing is justified by a mutuality of both benefits and burdens |
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Term
| Common Scheme- Beginning time |
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Definition
| this scheme begins with the sale of first lot with the common scheme language within the deed; if lots in the subdivision have been sold w/o the scheme language w/I the deed the lots are not held to the commonscheme & convenat is not applied retroactively |
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Term
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Definition
| "to A (words of purchase) for life/ natural life/ during her lifetime/ the term of her life/ as long as she may live (words of limitation) |
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Term
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Definition
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Term
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Definition
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Term
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Definition
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Term
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Definition
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Term
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Definition
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Term
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Definition
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Term
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Definition
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Term
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Definition
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Term
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Definition
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Term
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Definition
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Term
| Common words that denote FSD |
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Definition
| "so long as" "during" "while" "unless" "until" |
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Term
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Definition
| 2 or more persons have concurrent interest in the land; these tenants have equal rights to possession or enjoyrment, and whomever is in actual possession is not holding hostily the rights of the concurring tenants |
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Term
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Definition
| an event/ condition that must occur/ fail to occur (depending on express terms) BEFORE an interest becomes vested (in case of remianders) or possessory (for EI) |
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Term
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Definition
| the occurance/ nonoccurance of an event that can cut short an estate |
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Term
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Definition
| a condition whose occurance or nonoccurance will terminate the estate; if this occurs the estate holders interest ends and property EITHER 1) reverts to orginal grantor, or 2) passes to 3rd party |
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Term
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Definition
| usually not necissary nor need be stated for passage of title (Except for Baraign and sale deed); consideration is usually customarily recited in the deed, and lack of consideration precludes the grantee from protection of the recording acts/ may preclude grantee from equitable relief for a defectivly executed deed & may render executory covenants/ other obligations unenforceable |
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Term
| Construction possession (animals) |
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Definition
| animals caught in a TRAP OR NET belong to the person who owns and has set the trap/ net. SETTING THE TRAP IS CONSTRUCTIVE POSSESSION OF THE ENSNARED ANIMALS |
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Term
| Constructive acceptance (bailment) |
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Definition
| when a person comes into posession of an object by mistake/ takes possession of an object when it is lost/left by the owner |
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Term
| Constructive legal possession |
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Definition
| what actual legal possessor has after someone else acquires custody, but not actual legal possession of the thing |
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Term
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Definition
| possession of the personal property is acquired and retained under circumstances in which the recipient should keep it safely/ return the item to the owner at a later time |
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Term
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Definition
| when a bailor gives the keys to a heavy bulky object (safe deposit box, car, house…) to the bailee; this transfers control of the object WITHOUT ACTUALLY DELIVERING THE OBJECT |
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Term
| Constructive delivery (gift) |
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Definition
| the property itself is not transferred but something giving acces & controll over the item is (ex. Keys to a house or car) |
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Term
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Definition
| notice or knowledge that a purchasor can gains by searching the deed records; a person is deemed/ assumed to know all info in the documents legally recorded in the deeds record; EVEN IF THE PURCHASOR DD NOT SEARCH THIS OFFICE. Constructive Notice is usually asserted by seller in instances when purchasore did not search the records (b/c if purchasor HAD SEARCHED the records this would be ACTUAL NOTICE |
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Term
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Definition
| the owner is either unascertained OR the right to ther current/ future posession of the property is subject to a contingency/ CP |
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Term
| Continuous and Open Right (prescriptive easement) |
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Definition
| claimant uses easement with great frequency/ all the time (can be seasonal, or when required (think fire escapes)); this use has not been abandoned. NB a change of easement location can constitute abandonment if first location not included in 2nd easement |
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Term
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Definition
| the possessor must use ther property as the true owner under the circumstances; this focuses on the time on the property and intent to return. A AP can leave property if the circumstances allow it and retain continuous possession if he has intent to retun, which allows him to eject subsequent AP's who entered onto the land. Abandonment of the property restarts SoL even if another AP does not enter |
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Term
| Contribution by cotenants |
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Definition
| an action by cotenant in which one contenant demands others pay their pro rata share of EXPENSES PAID by the single cotenant ; only occurs if cotenants do not agree to pay voluntarily |
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Term
| Contribution for repairs/ maintenance by cotenants |
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Definition
| cotenant will not receive contribution for repairs EVEN NECCISSARY REPAIRS (courts figure this would be very time consuming/ resource depleating process) |
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Term
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Definition
| using anothers property in a manner inconsitent wiwth the rights of the true owner/ rightful possessor. an owner may allege conversion and sue the wrongdoer in trover; |
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Term
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Definition
| a conveyance of land will include annual crops unless a reversation/ provision in the deed states otherwise |
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Term
| Correlative rights doctrine (percolating water) |
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Definition
| minority of states have rule that allocates % of ownership to land acrage owned in which the resource rests (NO EQUALITY AMOUNG # OF OWNERS) |
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Term
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Definition
| very difficult; CT must give clear notice to the other cotenants that he is claiming AP, usually written notice is preferred but OUSTER + ACTS INCONSISTENT WITH CONNCURRENT OWNERSHIP may work |
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Term
| Court's view on exclsuive easements |
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Definition
| presumption that EEiG are not intended, to prove this easement exists there must be CLEAR/ EXPRESS language in grant. |
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Term
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Definition
| a promise to do or not do an act |
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Term
| Covenant against future assurances |
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Definition
| requires the grantor to execute any document/ perform any action needed to cure a defect or encumbrance in the conveyance to the grantee, but this requires a demand by grantee for grantor to take action |
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Term
| Covenant of warranty and quiet enjoyment |
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Definition
| the grantor covenants to defend against and compensate the grantee for any lawful claims made against the title that might arise; but grantee must be sued/ ousted/ eveicted before he has an actionable cause of action --- this assures that no one will interefears with grantees right of posession |
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Term
| covenant to stand siezed of uses (statute of uses) |
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Definition
| this raises a use only in a grantee RELATED BY BLOOD OR MARRIAGE to the grantor, & use being raised in consideration for such relationship, which was executed by the statute of uses, thus vesting the corresponding legal estate in the grantee |
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Term
| Creation of common schemes |
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Definition
| these occur when developer/ lot owner SOLD THE FIRST LOT (not moment of subjudgation) and language of the scheme must be apparent within this first deed; if not in first deed not common scheme no matter how many subsequent deeds contain the Common Scheme restrictions. |
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Term
| Creation of particular interests in a deed |
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Definition
| CERTAIN INTERESTS cannot be created UNLESS SPECIFIC WORDS ARE USED IN THE DEED FOR THEIR CREATION; although many interest can be created WITHOUT the use of technical language |
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Term
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Definition
| Special Statues passed in many states which provide that after the passage of some number of years instruments that lack seals/ acknowledgements or other recording requirements are deemed to have been properly recorded |
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Term
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Definition
| exclusive physical dominion and control of a thing, there being no intent to exclusively control the thing on the possessor’s own account or in his own name |
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Term
| Deed containing both Habendum and Granting Clause |
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Definition
| the habendeum MAY BE used to limit/ lessen/ enlarge/ explain/ vary/ qualift the Granting clause, the habendum CANNOT TOTALLY CONTRADICT the estate granted by GC. IF Habendum proports to cut down estate of GC and no other indicators are contained in the deed to reveal grantors intent, GC CONTROLS. |
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Term
| Deed w/o seal in J requiring seal |
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Definition
| the validity of a DEED AT LAW 1) if lacks the required seal but is otherwise valid may grant equitable interest in specifically performable K to correct seal; 2) the word seal or initial LS will satisfy seal; 3) many courts will just take the intent to seal as sufficiency of seal |
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Term
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Definition
| a deed that contains no covenants about the title conveyed, but purports to transfer a FS or a disginated lesser estate (Very uncommon) |
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Term
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Definition
| deed that proport to convey a specfic quality of title (FSA..) but have no covenants of title |
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Term
| Deed's requirement to acknowledge parties |
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Definition
| to be an effective conveyance the deed must IDENTIFY AT LEAST two parties ( grantor/ grantee); if other parties are involved these additional parties must be identified |
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Term
| Descendable/ Inheritable property |
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Definition
| property that can pass by the states intestancy statute to heirs IF the owner dies WITHOUT A WILL |
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Term
| Destructibility of Contingent Remainders |
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Definition
| CR will fail if the contingency on which it is limited does not in fact occur at or before the actual termination of the preceding particular freehold estate. This has been eliminated in most jurisdictions, still applicable a few; recent cases have applied this rule b/c it was in effect at the time of conveyance (The law that was in effect when the conveyance was passed governs) |
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Term
| Devisable (property/ estate) |
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Definition
| property that the owner can transfer ownership AT WILL |
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Term
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Definition
| transferance of property by will after a persons death; THIS IS NOT A GIFT |
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Term
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Definition
| if the owner is either: a minor, mentally incompetant, or imprisioned on the date that the SoL runs out; AP may only bring action against the owner AFTER the removal of this disability within a period permitted by local ordinance |
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Term
| Divisibility & Apportionment (Easement Appurtenant) |
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Definition
| EA are always DIVISIBLE and APPORTIONABLE. the holder of the easement who subdivides and sells parcels of DT TRANSFERS the easment to EACH PARCEL. Each divided parcel is the DT and the owner enjoys the easement rights over ST UNTILL # of easements overburdens the ST. |
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Term
| Divisibility & Apportionment (Easement in Gross) |
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Definition
| IF not assignable then not apportionable (personal EiG); however COMMERCIAL easements in gross are usually assignable so they are apportionable -- utilatimatedetermination of this assignability concerns if the easement is Exclsuive or Nonexclsuive |
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Term
| Doctrine of Worthier Title |
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Definition
| when a conveyance or devise to a persin, with R or EI to the grantor's heir's/ next of kin, no future interest is created to the heirs; grantor retains a reversionary interest which grantor can transfer or sell; this has been abolished in 30 jurisdictions and only serves as demonstrating a grantors intent |
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Term
| Doctrine of Worthier Title (brummy) |
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Definition
| Where there is an inter vivos conveyance of land or personal property, within a limitation in remainder or as an executory interest to the heirs (land) or next of kin (personality) of the grantor as such, which , conveyances effectively creates an interest in other than such “remainder” (remainder/ EI) – limitation in “remainder” will be construed to create a reversion in the grantor. |
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Term
| Doctrine of Worthier Title Characteristics |
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Definition
| 1) Rule of construction, 2) Abolished in 30 J’s, 3) Must be inter vivos, 4) applies only to Land or personal property, 5)Must be a limitation of a remainder or an executory interest |
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Term
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Definition
| parcel that recieves benefits from the easement; it is the owners who use is benefitted, not the land itself; ONLY APPLIES TO EASEMENT APPURTENANT b/c in gross has no Dominant tenement since specific person recieves the benefit NOT THE OWNER OF THE PARCEL |
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Term
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Definition
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Term
| Duration of Fee Tail/ Fee Simple Conditional |
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Definition
| untill ORGINIAL GRANTEE'S linage dies out |
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Term
| Duration of implied easment of necessity |
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Definition
| the easement exists for only the time that the acess is obstructed/ this route is a necessity; if a new route is built or become available the easement terminates immediately |
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Term
| Duration of Life Estates/ Term for Life |
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Definition
| For the life of the grantee |
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Term
| Duration of Term of Years |
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Definition
| fixed period set in transfer/ will (measured by years/ months/ days depening on express terms of the decree) |
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Term
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Definition
| a nonpossessory interest one person has to use land in the possession of another, this is a nonexclusive right. ONE CANNOT CREATE AN EASEMENT IN HIS OWN PROPERTY |
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Term
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Definition
| an easement implicity conved with the property, with the potential to continue indefinitely, that BENEFITS THE OWNER/ POSSESSOR of a particular land |
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Term
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Definition
| easment runs with the land; whoever possesses the DT (by purchase/ gift/ devise/ inheritance) has the right to use the easement over the ST. THIS IS IMPLIED, EVEN IF THE DEED MAKES NO SPECIFIC MENTION, and the PERSON who is conveyaning the DT to another LOSES HER RIGHT to use the easement. The easement still remians. |
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Term
|
Definition
| easment runs with the land; whoever possesses the DT (by purchase/ gift/ devise/ inheritance) has the right to use the easement over the ST. THIS IS IMPLIED, EVEN IF THE DEED MAKES NO SPECIFIC MENTION, and the PERSON who is conveyaning the DT to another LOSES HER RIGHT to use the easement. The easement still remians. |
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Term
|
Definition
| easment runs with the land; whoever possesses the DT (by purchase/ gift/ devise/ inheritance) has the right to use the easement over the ST. THIS IS IMPLIED, EVEN IF THE DEED MAKES NO SPECIFIC MENTION, and the PERSON who is conveyaning the DT to another LOSES HER RIGHT to use the easement. The easement still remians. |
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Term
|
Definition
| easment runs with the land; whoever possesses the DT (by purchase/ gift/ devise/ inheritance) has the right to use the easement over the ST. THIS IS IMPLIED, EVEN IF THE DEED MAKES NO SPECIFIC MENTION, and the PERSON who is conveyaning the DT to another LOSES HER RIGHT to use the easement. The easement still remians. |
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Term
|
Definition
| easment runs with the land; whoever possesses the DT (by purchase/ gift/ devise/ inheritance) has the right to use the easement over the ST. THIS IS IMPLIED, EVEN IF THE DEED MAKES NO SPECIFIC MENTION, and the PERSON who is conveyaning the DT to another LOSES HER RIGHT to use the easement. The easement still remians. |
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|
Term
|
Definition
| easment runs with the land; whoever possesses the DT (by purchase/ gift/ devise/ inheritance) has the right to use the easement over the ST. THIS IS IMPLIED, EVEN IF THE DEED MAKES NO SPECIFIC MENTION, and the PERSON who is conveyaning the DT to another LOSES HER RIGHT to use the easement. The easement still remians. |
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Term
|
Definition
| easment runs with the land; whoever possesses the DT (by purchase/ gift/ devise/ inheritance) has the right to use the easement over the ST. THIS IS IMPLIED, EVEN IF THE DEED MAKES NO SPECIFIC MENTION, and the PERSON who is conveyaning the DT to another LOSES HER RIGHT to use the easement. The easement still remians. |
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Term
| Easement implied by prior use/ grant |
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Definition
| aka Quasi easement, this happens when the use of the land is put into jeapoardy because a subsequent sale of part of the land divided the parcel; the buyer & seller must not have discussed this use during the sale |
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Term
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Definition
| a personal easement that BENEFITS A PERSON; not assignable & automatically ends at holder's death |
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Term
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Definition
| benefits a PERSON or MONEYMAKING VENTURE, ownership of a particular parcel of land is not required. Assignability for EiG is complex, based on if easement is for commercial or personal use |
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Term
| Easement in gross vs. appurtenant |
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Definition
| courts have constructional prefence for Appurtenant; THE EXPRESS GRANT MUST CLEARLY ESTABLISH THE EASEMENT IS MADE IN GROSS/ the sorrounding circumstnaces can also establish in gross |
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Term
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Definition
| the income from the property is insufficient to pay the expenses the T has a duty to pay; property use does not pay for the upkeep. T can bring action to sell & buy the property in this event |
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Term
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Definition
| legal action to remove a trespassor |
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Term
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Definition
| right of FORMER TENANT(per personal represenative) to enter upon the property to cultivate, harvest, and remove crops planted by this tenant prior ro the termination of the lease/ estate |
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Term
| Eminent Domain (Termination of Easement) |
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Definition
| if the government takes a land by eminent domain this action extinguishes the easement, but the easement holder will be compensated |
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Term
|
Definition
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Term
|
Definition
| a security transaction which fails to satisfy the requirements for the creation of a legal mortgage, BUT is treated nonetheless as a mortgage in equity and is enforceable as such ONLY IN EQUITY (ex. Defectively executed legal mortages, specifically enforceable promise to give legal mortgage |
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Term
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Definition
| the mortgagors right to redeem his land after the mortgagors default on his debt (mortagor's compliance in full with the terms of the mortage grants the remedy at law in ejectment to enforce his right of reentry of power of termination); common misue of this term is a reference to the excess of the value of the mortgaged land over the amount owed by mortgagee |
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Term
| Error in recording (due to recorder's office personell) |
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Definition
| modern trend is to treat the instruments as if unrecorded, b/c people cannot search for these records and constructive notice isn't possible |
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Term
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Definition
| if a wild animal, captured and held in private ownership, escapes and resumes its naturual liberty, the former owner loses his property right to it; this animal is UNOWNED & first to capture this animal becomes the new owner |
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Term
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Definition
| an interest in land that will or may become possessory |
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Term
| Estoppel (Termination of Covenants and Equitable Servitudes) |
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Definition
| an action that can reasonably induce reliance by the BURDENED OWNER, which results in substancial injury to the burdened owner, constitutes an estoppel of right to enforce the covenant |
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Term
| Estoppel (Termination of Easements) |
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Definition
| substancial change of material position by continuance of easment |
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Term
| evidenciary standard for donative intent |
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Definition
| clear and convincing evidence |
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Term
| Exception (contained in a deed) |
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Definition
| a clause in a deed/ other conveyance by which the grantor excepts something OUT OF THAT WHICH HE GRANTS BY THE DEED OR OTHER CONVEYANCE. This withdraws from the conveyance a specified part of the land which would have otherwise been conveyed by generality of the deed. |
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Term
| Exception (results when contained within a deed) |
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Definition
| the grantor retains something he owned prior to making the conveyance, this always is a thing (or right) in being at the time of the conveyance |
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Term
| Exclsuive & continuous (4th AP Req) |
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Definition
| possession must be exclusive to the AP (except for tacking); continuous is necissary for SoL to run and any interrupted periods restart the clock |
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Term
| Exclsuive easement in gross |
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Definition
| commercial EIG where the easement holder has the SOLE RIGHT to use the easement; this owner has the sole right to AUTHORIZE OTHERS to use the easment, ST owner cannot allow others to use the easement, and the # permitted to use the easement limited to amount of easement users that do not overburden the ST/ constitute misuse of the easement |
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Term
| Exclsuive statutes for conveyance that fails to meet local conveyancing statute |
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Definition
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Term
| Exclsuive use (Prescriptive easement) |
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Definition
| only imposed by A SMALL MINORITY OF JURISDICTIONS; claimants use of the land must be readily distinguishable from owner, or ST owner must not use property in a way that would interfere with claimants use of the easement |
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Term
|
Definition
| AP holds the land to the exclusion of the true owner; cannot occur by 2 AP-ers with equal legal rights, an AP with superior right has the opportunity to eject the other ap & SoL runs from time AP ORIGINALLY occupied the property. If persons are acting in concert they can become co-owners in the land |
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Term
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Definition
| a future interest, held by a third party transferee (i.e. someone other than the grantee), which either cuts off another's interest or begins after the natural termination of a preceding estate. |
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Term
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Definition
| easement created that must be creates by AN WRITTEN INSTUMENT SIGNED BY GRANTOR under seal; usually grantor sells part of his land and grants purchasor an easment over G's retained land/ Servient Tenement; if this express easment fails for any reason (like violation of SoF) then this becomes A LICENSE or SPECIFICALLY PERFORMABLE Kit does not terminate |
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Term
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Definition
| an interest which has its origins in the principles, rules and remedies developed by the courts of equity; which is enforcable in equity, but not at law |
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Term
| Express interest conveyed in deed |
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Definition
| to be a valid deed, the document must contain language granting the INTEREST IN THE LAND WHICH IS INTENDED TO BE CONVEYED. The granting clause is the principle source for determining thes estate/ interest being conveyed. [Note courts generally resolve all doubts AGAINST the grantor, so deed passes ALL INTEREST HELD BY GRANTOR unless a contrary intent is definitively shown |
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Term
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Definition
| the possibility of acquiring property by will/ intestacy |
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Term
|
Definition
| the ending of grantees bloodline in a FSC/Fee Tail |
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Term
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Definition
| complete ownership in property that lasts untill the end of time; if death occurs to owner without will title passes onto the heirs |
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Term
|
Definition
| an estate that would be FSA but for a provision in the transfer document that states the estate shall AUTOMATICALLY END on the happening of an event/ nonevent. The duration may be infitite but for the condition |
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Term
| Fee Simple Determinable (short summary) |
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Definition
| a present possessory estate followed by a possibility of reverter in the grantor;; only original grantor/ OG heirs have future interest |
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Term
|
Definition
| Only Maine, Mass, RI, and DE still permit Fee Tail estates; a person can break this estate by conveying his interest into FSA to a 3rd party. ALL OTHER STATES HAVE ABOLISHED THIS TYPE OF ESTATE |
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Term
|
Definition
| the transfer of possessory estate of freehold in land by livery of seisin; either through 1) livery in deed, or 2) livery in law; this is FS Estate |
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Term
| Final settlement of sale by cotenants |
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Definition
| when cotenants sell the property, a co-tenant who has expended money can received the amount he has not been reimbursed for taxes/interest/ mortgage principle/ repairs/ maintanace/ insurance/ neccissary common expenses; cotenant will collect amount for improvements only by the increase in sale price this improvement adds & amount paid for the improvement is irrelevant; any time managing/ selling property is not reimbursed (unless specific agreement by cotenants says otherwise |
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Term
| Finder of Lost Property- General rule |
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Definition
| Finder entitled to posession (except against the true owner and ANY PRIOR RIGHTFUL POSSESSORS); if property is catagorized as lost the one who reduces it to posession becomes its finder. Posession is 1) physical control and 2) intent to assume dominion over the object. This intent may either be manifested by an effort to keep others away (gate/ roping off area) or may be implied (item discovered on the land of the owner) |
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Term
|
Definition
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|
Term
| Finder of MISLAID property |
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Definition
| the finder of mislaid property does not acquire the right to possession; the OWNER of the locus in quo becomes entitled to possess the mislaid property against all the world except the true owner. (Mislaid property is that which has been intentionally placed where found and thereafter forgotten, when the true owner realizes where he has mislaid his property he will return to that location to retrieve his propertyl in an effort to return property to its owner the right of possession is given to the owner of the locus in quo and not the finder) |
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Term
|
Definition
| collusive legal proceedings brought to effect transfers of interests in land which were otherwise non-transferrable; the primary use of this tactic was to bar entails ( enable the holder of Fee Tail to convey a FSA |
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|
Term
| First-in-time, first-in-right |
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Definition
| the chronologically first possessor has a better right to title than any subsequent posessor |
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Term
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Definition
| personal property that has been permanently attached to real propert BUT it could be removed;once the thing is attached to the land it is converted from personal property to real property; this becomes an accessory to the land & passes with ownership of the land |
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Term
|
Definition
| a cotenenat may have stutrorily enabled right to purchase the property but will be acting within fiduciary obligations, other cotenants CAN REMAIN COTENANTS BY CONTRIBUTING THEIR SHARE OF THE AMOUNT PAID IN FORECLOSURE; if the cotenant chooses/ cannot contribute AFTER A REASONABLE TIME then they loose their possessory interest. If single co tenant contributes then he has sole possession & will own the property (in a minority of states bidding cotenants all have oppetunity to own, so winning cotenant/ bidder has ownership) |
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Term
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Definition
| property owned by person in LE will be forfitted to person holding remainder if comitted crime on the land; this destroys CR |
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Term
| Forfieture for Misuse (termination of easement) |
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Definition
| this is only imposed for egregious cases of misuse, courts commonly grant injunctions stopping the misuse of the easement |
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Term
| Formal requirments for execution of a deed |
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Definition
| this MUST BE instrument in writing signed by grantor/ his agent; also local laws may require to be formally valid and effective conveyance it must be sealed, attested, acknowledged |
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Term
| Found Item: Employer-Employee |
|
Definition
| an employee who finds an articlein the course of his employement should surrender the right of possession to his employer. Within the employer-employee relationship the basic concept is that the employer has the right to direct the employee in his activities. On this basis, if the employee found the article by virture of an act specifically directed by the employer, the employer should acquire the rights of possession in the article |
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Term
| Found/ Mislaid property- duty of due care |
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Definition
| the posessor must keep the gods with due care (b/c he is a gratuitous bailee); if he does not take care he can be found guilty of negligence |
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|
Term
| Found/ Mislaid property- Duty to find owner |
|
Definition
| if the person have knowledge of the true owner or have reasonable means of discovering the true owner, this person is obligated to do so; if not he is guilty of larceny & can be held liable for tortous conversion) |
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Term
| Found/ Mislaid Property- Extent of obligations of the finder |
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Definition
| finder's obligations of due care and discovering the true owner persist untill a sufficient time passes for the true owner to be deemed to have abandoned the goods (this depends on the character of the goods & the circumstances of the case) OR until SoL runs out |
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|
Term
| Fraudulent Concealment (AP) |
|
Definition
| when an owner fraudulently conceals himself after the SoL runs and action accrues (in order to avoid service) the statue is held untill concealment ends |
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|
Term
| Freehold estates (3/4 types) |
|
Definition
| 1) Fee Simple, 2) Fee Tail (Fee Simple Conditional) 3) Life Estate or Estate for Years |
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|
Term
|
Definition
| crops that are present on land because of specific cultivation (argicultural production, flowers); personal property |
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|
Term
|
Definition
| crops that grow spontaneously on the land (trees, bushes, grasses); title over this passes with the land b/c they are REAL PROPERTY |
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|
Term
| FSA 3 important qualities |
|
Definition
| 1) freely divisible, 2) freely descendable, 3) freely alienable |
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|
Term
| FS subject to Condition Subsequent |
|
Definition
| tranferance that gives grantee the potential to hold property forever, but COULD lose possession if the condition occurs; possession ONLY ENDS once the grantor assersts his right of rentry. The only person who can retake the land is grantor, and grantee continues to own the property UNTILL RIGHT OF REENTRY IS USED; only original grantor/ OG heirs have FI |
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|
Term
| FS subject to Executory Limitation |
|
Definition
| a present possessory estate with either reverter/ right of reentry AND FI GOES TO A 3RD PARTY not the grantor |
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|
Term
|
Definition
| A series of life estates which passes from member to member/ heir untill the family line ended; when the line ends the property REVERTED back to grantor |
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|
Term
|
Definition
| FSD- grant AUTOMATICALLY ENDS upon the occurance of the condition; FS subject to CS- grant ONLY ENDS when grantor EXCERCISES HIS RIGHT OF REENTRY |
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|
Term
|
Definition
| a presently owned interest in a specific thing which entitles the owner thereof TO FUTURE possession or enjoyment of the specific thing; this is not but will/ may become a present interest. (note the future is in reference to the use and enjoyment of the thing; all property interest have a present existence) |
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|
Term
| Future Interest in Term of Years Estate |
|
Definition
| if granter regains ownership of property after the time end--- reversion, if 3 party takes possession after time ends --- REMAINDER |
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|
Term
|
Definition
| a noncontractual, gratuitous transfer of property; made without legal consideration (if consideration exists this is a CONTRACTUAL SALE) |
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|
Term
| Good Faith/Bona Fide purchaser |
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Definition
| a person who buys personal/ real property HONESTLY and WITHOUT NOTICE of any conflicting claim on the property. It doesn't matter if the purchaser is nigligent; BFP must act in good faith/ without notice of the improper title. A BFP must pay ACTUAL VALUABLE CONSIDERATION (no IOUS, no gifts) to the fair price, a price is fair so long as it does not shock the consicious and make the purchase seem illigitimate |
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Term
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Definition
| the transfer by an instrument in writing under seal of an interest in land INCAPABLE OF TRANSFER BY FEOFFMENT; any interest in land OTHER than a possessory estate in freehold (so incorporeal interest in land/ FI/ Right belonging to another) |
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Term
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Definition
| this is an index for chain of title that lists grantees alphabetically by name; the search through this index begins with the current owner of the parcel (a prudent searcher would look for similair name b/c of recording error) |
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Term
| Grantee's Requirement of Identification w/I deed |
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Definition
| the grantee (a person/ partnership/ corporation) must be IN EXISTENCE as a legal entity at the time of the transfer & must be clearly named/ identified within the deed; legal title will NOT PASS WITHOUT CLEARLY IDENTIFIED grantee |
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Term
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Definition
| the clause in a deed which contains the language granting the interest in land which is intended to be conveyed; this is required in express language to form a valid deed |
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Term
| Granting clause requirement in deed |
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Definition
| an effective coveyance by deed must have (language describing the land being conveyed and BOTH language expressing the GRANTORS INTENT to convey the land and language GRANTING THE INTEREST in the land being conveyed; which is satisfied by the granting clause |
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Term
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Definition
| index for chain of title that lists only the land. A search through a grantor index MUST BE DONE AFTER SEARCH OF GRANTEE INDEX because grantor index search begins with the root of title and the search persuist untill current owner |
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Term
| Grantors Requirement of Identification w/I deed |
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Definition
| the grantor (a person/ partnership/ corporation) must be IN LEGAL EXISTENCE as a legal entity at the time of the transfer & must be clearly named/ identified within the deed; older courts required the grantor to be identified, modern courts hold ALL WHO SIGN THE DEED ARE PARTIES TO IT. |
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Term
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Definition
| "to have and to hold" clause used primarily to delimit the estates conveyed. Usually this is pretition of prior refences in the deed to the grantee & prior statements in the deed of the estate conveyed |
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Term
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Definition
| if a wild animal escapes, and through wandering about without restraint, PERIODICALLY RETURNS to its owners home, or if it is still pursued by its owner/ other means to recapture the animal STILL IN PERSUIT the owner retains title |
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Term
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Definition
| people who should take one's REAL property upon death without will, this right does not exist untill death |
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Term
| Horizontal privity (real covenant/ equitable servitude) |
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Definition
| relationship between the original parties of the agreement for the covenant to run; both of the covenanting parties must have CONTINUING INTEREST in the affected physical land at the time covenant is created (ALWAYS met in LL & T cases, this privity lasts as long as the lease term) |
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Term
| Hostile & Adverse (3rd AP Req |
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Definition
| possession must not be by CONSENT and not in subordination (leasee) to the rights of the true owner |
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Term
| Hostile & Adverse (majority of jurisdictions) |
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Definition
| AP uses rge occupied property withou the true owners permission & inconsitent with rights of the true owner; entrace CANNOT BE DONE WITH OWNERS PERMISSION (lessee who holds over cannot be AP unless some element that breaks lease goes unacted like not paying rent/ using land in unintended or restricted way) |
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Term
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Definition
| use of land in a way inconsistent with the true owner; hostility focuses on possession being nonpermisssive |
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Term
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Definition
| property is done by the commonlaw system, case precedence and not statutes determine property regulations |
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Term
| How rights of personal property areacquired/ lost |
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Definition
| occupancy, Adverse possession, accession, judgement, gift; or when the chattel is lost, mislaid or abandoned |
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Term
| Implied easement by Necessity |
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Definition
| an easement implied for ingress & egress which establishes a right of way into a landlocked property (landlocking is so disaterous for property value that courts assume the parties COULD NOT HAVE INTENDED THE LANDLOCKING TO OCCUR) |
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Term
| Implied Easements, 2 types |
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Definition
| non written easements that court only allow under two circumstances: 1) Implied from prior use, 2) Implied by necessity |
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Term
| Improvement by a single cotenant |
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Definition
| cotenants cannot seek contributions for improvements, even properly made improvements (b/c no one has duty to improve the land) |
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Term
| Improvement, Maintenance and repair (easements) |
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Definition
| holder has the right to improve the easement that promote the use of the easemenyt, within the scope of the easement and do not burden/ interfere with ST owners use or enjoyment of the land; and the holder has the duty to maintain/ repair the easement and any improvements (multiple users must split the costs); the terms of the repair agreements do NOT AFFECT THE EASMENT ITSELF unless express terms say otherwise; the holder is liable for any injury that may result from negligent repairs/ slip& falls/ damage to ST |
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Term
| Indefeasibly vested remainders |
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Definition
| a remainder with NO CONDITION SUBSEQUENT and is NOT a class gift subject to open. "to A for life, remainder to B and his heirs" b has vested R in FSA, his R is certain to become possessory |
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Term
| Intangible personal property |
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Definition
| assets that cannot be touched or seen but have value nonetheless (ex. Stocks, patents, K rights, debts…) |
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Term
| Intensity of Use (easement) |
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Definition
| express terms of use controll, but when not specifically mentioned the use is limited to reasonable use that does not overburden the ST; courts determine this by the parties presumed intent in the grant with the assumption that this use may EVOLVE FOR REASONABLY FORESEEABLE changes in surrounding area/ society; holders use is limited to authorized purposes of the easement |
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Term
| Intent to bind (real covenant/ equitable servitude) |
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Definition
| the burden must be directly shown to run with the land, intent to bind subsequent purchasers usually ascertainable from the deed that sets forth the document; express terms in deed are clear indicators of intent ("heirs and assigns", "covenant is appurtenant""covenant shall run"), the burden is established expressly but benefit is inferred if PROMISEE OWNS NEIGHBORING PROPERTY (if no nearby property this is a personal grant) |
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Term
| Intnent to examine (finder of property |
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Definition
| (very limited jurisdiction hold) finding something and then a 3rd party takes the item, which prevents the finder from examining the item; this interference before examination is possible is the critical factor |
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Term
| Intent to convey- operative words |
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Definition
| in every jurisdiction it is essencial to the validity of a deed that ot contain language expressing GRANTORS INTENT TO CONVEY. Absent a statute rendeing compliance with this requirment sufficient, if such intent can BE GATHERED FROM THE INSTRUMENT AS A WHOLE (such statutes exist in 'but a few' jurisdictions) the intent to convey MUST BE EXPRESSED THROUGH OPERATIVE WORDS or the deed is ineffective [Note: if intent is apparnet by the entirety of the instrument & consideration was given, grantee is entitled to equitable relief by reformation which makes deed legal title] |
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Term
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Definition
| a gift between living persons |
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Term
| Irrevocable license 3 elements |
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Definition
| 1) owner of the servient tenement consents to Dominant tenement holder's use of ST, 2) ST owner knows/ should know that DT owner's position will materially change b/c he believes the use will not be revoked 3) DT holder reasonable & substancially changes his position by investing in improvements or actual improvement of the DT or ST; the reliance must be justifiable and any reliance that could be avoided by verifying the license will not be held irrevocable. CHARACTER OF THE TRANSACTION OR RELATIONSHIP OF PARTIES IS A MAJOR CONSIDERATION OF THE COURT |
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Term
| Irrevocable license 4 instantces |
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Definition
| a normal license can be made irrevocable through an 1) estoppel claim, this is indetical/ indistinguishable from an easement |
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Term
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Definition
| the owner of real property possesses all that which lies beneath the surface of his land. If one find an article buried beneath the surface, the right of possession belongs to the owner of the property not the finder. (based on theory of constructive possession) |
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Term
| Item Found in Private Place |
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Definition
| For the finder to be deprived of his possessory right in the lost article the place of discovery must be HIGHLY PRIVATE. This is usually applied to places where the public is not invited (homes) |
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Term
| Item found in Public Place |
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Definition
| if the place of discovery is open to the public, then the finder becomes entitled to the right of possession. The mere fact that the place of discovery is PRIVATELY OWNED is not sufficient to render it a highly private locus |
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Term
| Joint Tenancy with a right of survivorship- 6 traits |
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Definition
| 1) Must have the four unities of: Time, title, possession, and interest. 2)Each person owns an equal undivided factional interest and an equal right to possession and enjoyment, created at the same time by the same interest, 3) When the first tenant dies, his share automatically accrues to the joint tenant by right of survivorship, 4) The only person with an FSA and an inheritable interest is the survivor, 5)JT is severable during life. Transferee becomes TIC, 6) Cannot be disposed of by will. (Note: Preferred t common law, but today many J’s have abolished presumption and state that any conveyance to two or more people will create a TIC. (MD 2-117)) |
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Term
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Definition
| a judgment & sale of an JT interest will sever JT wRS; the docketing of the lein/ debt will not cause severance b/c the JT's possessorry rights are not disturbed until sherriff executes collection |
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Term
| Laches (Termination of Covenants and Equitable Servitudes) |
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Definition
| a benefitted owner waits to bring injunctioin against covenant violation that the burdened owner is unduly harmed by this delay (DELAY MUST BE UNREASONABLY LONG under the circumstances); this doesn't terminate the covenant just prohits THIS ENFORCEMENT FOR THE BREACH, subsequent actions of enforcement are permitted for subsequent breaches (this defense is a variation of estoppel) |
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Term
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Definition
| the rights and obligations of neighboring landowners relating to the removal or changing of soil on the supporting property; this is highly dependant on if the land is developed with structures/ other improvements on the land or if the land is in its natural state; natural land- person who causes land to shift or move away from natural state (mining, removal of all the topsoil) is held responsible; improvements NEGLIGENCE STANDARD to foreseeable neglect |
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Term
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Definition
| a grant or a contract transferring the right to exclusive possession for an agreed (potentially indefinite) period of time. LESSOR RETAINS A REVERSION |
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Term
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Definition
| owner of land leases it to another for a short period of time and , IMMEDIATELY THEREAFTER releases his reversion to the lessee, & two estates owned by the lessee merge into FSA; |
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Term
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Definition
| leases of land for a term of years, doesn't matter of length/ duration; classified as personal property as CHATTELS |
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Term
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Definition
| Short term and long term leases by one of the contenants does not sever the unity of interest b/c this interest will expire when he dies anyway; to be sure ALWAYS HAVE ALL REMAINING JT EXECUTE A LEASE WHEN IT'S UNDER JT w RS |
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Term
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Definition
| an interest which has its origins in the principles, rules and remedies developed and enforced by the courts of law; which is ENFORCEABLE BOTH AT LAW AND (GENERALLY) IN EQUITY |
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Term
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Definition
| (enforceable at law and equity) a conveyance of a recognized estate in land on condition subsequent, the condition being that the conveyance shall be VOID IF A STATED SUM OF MONEY IS PAID AT A STATED TIME, the purpose of the conveyance is to give the grantee security for the payment of a sum of money, NOT GIVE THE GRANTEE ENJOYMENT OF TH LAND. |
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Term
| Lein states v. Title States (JT w RS) |
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Definition
| TITLE STATES: Lender gets legal title as security which includes right of possession, mortgage is a conveyance of legal title; LIEN STATES: Lender gets security interest and borrower keeps legal and equitable title, mortgage would not give title and does not sever JT. (if lender have ALL JT SIGN THE MORTGAGE) |
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Term
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Definition
| landowner permits another person to use his property & this permission is REVOCABLE AT ANY TIME; this requires no writing/ consideration and can be implied from costum or conduct when user stays within the tradition terms of the conduct/custom. Licensee has immunity from trespass on the land. (ex. person invited to swim in a pool, entertainment tickets) |
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Term
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Definition
| 1) mortgagor has the legal title to the mortaged land, 2) mortgagee has only legal lien upon land (to secure mortage debt) & has no right of possession either before or after default |
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Term
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Definition
| 1) mortgagor considered owner of the mortaged land, 2) mortgagee considered has only legal lien upon land (to secure mortage debt) |
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Term
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Definition
| owner owns the property for life who has seisin; it is not divisable nor descendable but can be transferred inter vivos and the transferrance ends when LE owner dies |
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Term
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Definition
| grantor delivers a thing symbolic of the land to the grantee, while both were on the land, and grantor concurrently used words that indicated: intent to convey, the character of the estate to be conveyed, and the subject matter of the conveyance |
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Term
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Definition
| the grantor stated to the grantee (while both were IN SIGHT of the land BUT NOT ON IT), that he conveyed the land to the grantee an the grantee should take possession of the land, the grantee entering into possession of the land during the life of the grantor. |
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Term
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Definition
| must be identified & described at the easement's inception; express grant will concretely define the location of the easement, and if location is unspecified general use of the land can establish location (in some jurisdictions an express grant that does not contain location is invalid); re-location of an easement is MISUSE |
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Term
| Location of implied easement by necessity |
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Definition
| usually owner of ST has the first opportunity to locate the easement, but if this location is unreasonable (driveway through a livingroom) or the ST owner takes too long than DT holder can determine the location; after location is established this easement can be moved ONLY BY THE CONSENT OF BOTH PARTIES |
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Term
| locative description (metes and bounds) |
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Definition
| a description used for the purpose of locating a point or a line |
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Term
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Definition
| owner of the premisis or the lessee |
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Term
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Definition
| owner has ACCIDENTALLY AND INVOLUNTARILY parted with his possession and does not know where to find it; central to this determination is WHERE THE ITEM IS FOUND --- from the place of finding would a resonable person know that the owner had accidentally and involuntarily parted with possession and not know where to find the item (big stack of money found on the floor) |
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Term
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Definition
| property that the true owner unintentionally and unkowingly dropped/ lost; this property belongs to the finder |
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Term
| lost/ mislaid vs. abandoned |
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Definition
| lost/ mislaid- is the owner of the chattel INVOLUNTARILY parts with posession of the goods; Abandoned- the former owner MUST HAVE VOLUNTARILY given up and relenquished his ownership in the chattel |
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Term
| Lost/ Mislaid/ Abandoned Property |
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Definition
| title to lost/ mislaid/ abandoned property persists with the original owner despite the new loss/ mislaid status; owner loses title when he abandons the property |
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Term
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Definition
| if a marked animal escapes and resumes its natural liberty modern courts allow title to be retained if 1) the animal is marked 2) owner excercises all possible efforts to recapture the animal |
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Term
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Definition
| (20 states have enacted) to promote more efficient title searches, in MT the grantee must serach back grantee index to the first title recorded before the MT years specification ( which ranges from 20-50 years) b/c the title recorded before this time is considered root title |
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Term
| Merger (Termination of Covenants and Equitable Servitudes) |
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Definition
| cov terminates once a landowner acquires exlcusive ownership of both the benefitted and the burdened property, and no one else uses this property |
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Term
| Merger (termination of easement) |
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Definition
| once a person gains concurrent ownership of both DT and ST, so estates MERGE and easement dissolves. The easement does not reappear if he severs the estates at a later date, a written agreement/ clause in deed at time of purchase is required. |
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Term
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Definition
| if a person holding a vested LE acquires the next vested estate in the same property, the two estates merge into 1 . (ex person has VLE and acquires VR in same property they merge into a larger estate which in this case is FSA) CL DESTROYS A CR THAT SEPERATES THE TWO VESTED ESTATES (see EE pg 168-9) |
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Term
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Definition
| a discription THAT MUST COMMENSE at an identifiable point and be by CONTINUOUS LINES, one line proceeding where the other line ends, where the FINAL LINE returns to the point of THE BEGINNING; if this description does not close deed fails as a conveyance |
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Term
| Metes and Bounds (2 types) |
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Definition
| 1) description by natural/ artificial boundaries ( streams/ roads/ fence…), 2) courses and distances |
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Term
| Metes and Bounds deed that does not close |
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Definition
| if the description does not close (either expressly or by construction) the deed fails as a conveyance; modern courts are liberal in constructing descriptions in order to avoid invalidity to the extent that COURTS HAVE SUPPLIED A LINE BY IMPLICATION (which closes the description) |
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Term
| Minimum requirements for an effective conveyance in land |
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Definition
| 1) must be in writing, 2) instrument must be effectively executed, 3) instrument must contain language showing the conveying intent, 4) instrument must idenify both grantor and grantee, 5) the item being conveyed must be identifiable by the language of the instrument 6) the language must demonstrate the extent of the conveyors interest or estate being conveyed |
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Term
| misdelivery of bailed object |
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Definition
| bailee is stricly liable in tort for negligence, unless special statute or law says otherwise; he is strictly liable even without fault (some states have replaced with presumption of negligence) |
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Term
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Definition
| it can be reasonable determined (b/c of the place where item was found) that the item was INTENTIONALLY PLACED there and THEREAFTER FORGOTTEN (a briefcase on a desk) |
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Term
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Definition
| property the true owner intentionally placed in a given location and then left, or intentionally left intending to return for the item later; ownership goes to owner of the locus in qyo- premisis owner or lessee) untill the true owner can be located |
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Term
| Modern Statutes for conveyances to be effectively made |
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Definition
| A conveyance of land that is excercised with the proper formalities & in the manner percribed is effective as a conveyance even though it does not comply either with the requirements for commonlaw conveyance or with the requirments for a conyeance under Statutes of uses |
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Term
| Monuments (metes and bounds descrip) |
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Definition
| natuaral or artificial objects used for the purpose of marking a line or a point; it is the center line/ point of a monument that is the location of the linr/ point of the boundry UNLESS this monument is "extensive in character" (building, tract of land, stream) in which the line DOES NOT RUN TO CENTER of the monument but THE NEAREST POINT |
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Term
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Definition
| A security interest in a property |
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Term
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Definition
| an interest in land which provides, and is created to provide, security for the performance for the duty of the payment of a debt |
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Term
| Mortgage Principles of cotenants |
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Definition
| Cotenant CANNOT SEEK contribution for mortage payments from others if payment made BEFORE DUE DATE; contenant CAN SEEK CONTRIBUTION for mortage payments PAST DUE/ OR ON DUE DATE |
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Term
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Definition
| the right to PREVENT another person from making certain uses of his or her land (this is similair to restrictive covenant); use term IMPLIED COVENANT |
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Term
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Definition
| gives the easement holder the right to prevent the possessor of the servient estate from doing some act on SERVIENT ESTATE; the nature/ scope of the negative easment MUST BE PRECISELY DEFINIED in the deed that creates the easement US courts only look to water easements/ view easments/ solar easement (view sun for solar energy)/ conservation easement (given to charity to conserve/ protect the land) |
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Term
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Definition
| people who will take PERSONAL property upon death without will |
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Term
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Definition
| an interest that entitles the owner NEITHER to pressent possession of the specific thing NOE to possession of the specific thin at any time in the future |
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Term
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Definition
| a thing which legal relations exist with respect to a thing |
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Term
| Nonexclsuive easement in gross |
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Definition
| easement holder has the right to use the easement, but ST owner (or other eclusive easement holder) can AUTHORIZE OTHERS to use the easement, the holder of the nonexclusive easement HAS NO POWER TO PREVENT THIS GRANT TO OTHERS |
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Term
| Notice requirment for Equitable Servitudes |
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Definition
| successor owner of the burdened property have notice of covenant actual/constructive/ ability to learn of covenant through inquiry (public records) |
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Term
| Notice rquirment for common schemes (equitable servitudes) |
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Definition
| State recording statutes require that a purchasor must be given notice of the cmmon scheme through terms of a deed (some jurisdicttions split on: direct filing at county records, only some deeds in community contain language of the commonplan, or uniformity of development constitutes extrinsic proof of the plan) |
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Term
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Definition
| a subsequent BFP or creditor for value previals over prior claimants if subsequent purchasor acquires the interest without notice of the prior claim. A Subsequent BFP prevails IMMEDIATELY UPON CLOSING w/o the need to record first ( there is no requirement to record, this record only serverse to protect the interest against a subsequent purchasor |
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Term
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Definition
| when two or more people/groups inherit or share the exclsuive right to an easment they must act with one voice; each owner has right to veto any action that involves the easement/ profit; if this gets out of hand & overburdens the land ST can enjoin the use |
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Term
| Open & Notorious (2nd AP Requirement) |
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Definition
| there must be some visible ACT OF DOMINION OR USE on the part of the posessor that is inconsistent with the absolute right of property to the owner (which would give a reaonable owner notice of the AP's presence); when theives are AP a secret holding is presumed, but a finder of lost/ mislaid property is presumed to hold openly |
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Term
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Definition
| Ap's use of property is visible & apparent to give notice to the true owner if the owner checked his land for someone asserting AP; if the true owner has actual knowlegde of the AP's claim O&N is met |
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Term
| Open and Notorious (Prescriptive easement |
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Definition
| use must be so open and visibile that landowner knows/ should notice. NB something observable on the estate gives constructive notice (Utility Line, roadway), and in residences indicators of uderground utilities (manhole, gas gauge) provides this notice) |
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Term
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Definition
| life tenant may mine & remove minerals (and keep the profits) if grantor had opened the mine/ began mining & removal before he granted this LE -->this is based on the presumption that grantor intended tenant to use the property as it had been previously used. IF no mining before T took possession then mining not allowed without express consent by owner |
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Term
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Definition
| an original party to the agreement creating the covenant; this party can enforce the covenant (if other party is bound) b/c benefit is personal to the promisee or appurtenant to the promisee;;s party |
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Term
| Original promisor (real covenant and equitable servitude |
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Definition
| an original party to the agreement creating the covenant, ALWAYS bound by the covenant b/c a) burden is personal, or b) burden is appurtenant to the promisor's land |
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Term
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Definition
| in co tenant situations, this occurs when the occupying T directly acts to prevent other co-tenants from using the property, before actions can be brought against co-tenant in possession non-possessory co-tenants must make a demand for access to the property & possessor MUST DENY ACCESS IN REFUTE OF THIS DEMAND |
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Term
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Definition
| term when court cannot equally partition the property, so a cotenant who recieves a more valuable parcel must pay cotenants with lower parcel value |
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Term
| Owner out of Jurisdiction (AP) |
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Definition
| when the owner, who is a RESIDENT of the jurisdiction, is outside the jurisdiction the staute is held untill the owner returns to the jurisdiction |
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Term
| Owners right to lateral and subadjacent support |
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Definition
| the rights & obligations between owners of neighboring property not to bring harm/ distress to neighbors property |
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Term
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Definition
| a thing capable of ownership but not owned, belongs to the person who acquires actual or constructive DOMINION AND CONTROL over it and has the INTENT to assert ownership |
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Term
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Definition
| wild animals in their natural state are UNOWNED; once they are possessed by a person they are owned. First person to have DOMINION AND CONTROL becomes the owner |
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Term
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Definition
| statutory in nature; 2 kinds 1) partition in Kind, 2) partition in sale |
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Term
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Definition
| court requires that the property is sold and the cotenants split the proceeds of the sale; courts disfavor this and only apply it when partitioning in kind is not possible (small tracts like single family houses) and can approve a sale even if a minor owns partial interest; some states allow cotenant to purchase parcel subject to FMV price paid and HEAVY judicial scrutiny, others do not allow. Express terms that reject partition by sale are invalid UNLESS LIMITED TO A SHORT & REASONABLE TIME (ex. divorce preceedings) |
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Term
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Definition
| court divides property into equal parcels of value and each cotenat recieves a separate parcel; if courts cannot equally divide the proporty into parcels of equal value the court can order monetary payment from one cotenant to another to equalize the value. IF FEWER THAN ALL COTENANTS WANT PARTITION, the cotenant seeking it gains a seperate parcel and the other cotenants continue owning rest of the property as co-tenants |
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Term
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Definition
| groundwater that is NOT IN A CHANNEL (think oil/ natural gas reserves); |
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Term
| Permissive statutes for conveyance that fails to meet local conveyancing statute |
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Definition
| the attempted conveyance may be upheld as a commonlaw coneyance (Feoffment); or if Statute of Uses is in effect in the j this would be a CONVEYANCE OPERATING UNDER THE STATUTE OF USES |
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Term
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Definition
| Property holder/ tenant fails to prevent some harm coming to the property; this applies to lack of repair that results in damages (troublesome pipe which T refuses to replace floods land, owner can bring suit & recover) |
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Term
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Definition
| everything that is not land, tangible/ corporeal physical property is something that can be possessed; or intangible property than are forms of rights of action; movable property; anything that is not real property, it can become personal property by severance |
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Term
| Personal/Noncommercial easements in gross |
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Definition
| easement given to grantee for personal enjoyment/ pleasure. NOT ASSIGNABLE, only way for personal easement in gross to become assignable is the document that creates the easement has express terms stipulating that the easment is assignable |
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Term
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Definition
| persuit does not constitute the exercise of dominion and control to give possessory rights. HOWEVER when the animal is MORTALLY WOUNDED and actual possession is practically inevitable, the hunter gains a VESTED property right in the animal which cannot be divested by anothers act (even if this intervening act is killing the animal) |
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Term
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Definition
| the controlling or holding of personal property, with or without a claim of ownership |
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Term
| Possession in Fact (de Facto possession)- |
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Definition
| exclusive physical control or detention of a thing |
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Term
| Interest which MAY become possessory |
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Definition
| is an interest which will/ may entitle the ownere thereof to possession of the specific thins at some time in the future |
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Term
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Definition
| an interest which entitles the owner thereof to present possession of the specific thing; a |
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Term
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Definition
| a right to make a limited use of another persons land |
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Term
| Possessor as Quasi- Bailee |
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Definition
| his title is good as against all the world, except the true owner; hee can even sue to have the property returned if it was wrongfully taken from him (ex. Lost ring belongs to O found by X & X lost it then found by Y. X can recover possession from Y/ anyone else EXCEPT O) |
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Term
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Definition
| the chance that the property may return to the grantor if the condition subsequent occurred; applies to all defeasable estates |
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Term
| Prescription (termination of easement) |
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Definition
| ST can reacquire easement by blocking easment for the prescriptive period; the ST owner must prove that this use of the property was inconsitent with the continuation of the easement, (slight alterations to land, or impermanent structures will not do MUST BE MAJOR/ PERMANENT change that makes prescriptive use impossible) |
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Term
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Definition
| a person can obtain a perscriptive easment through long-continued adverse use; much like AP requirements but no intent to own, just intent to use. ONLY AFFIRMATIVE EASEMENTS CAN GAIN a prescriptive easement |
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Term
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Definition
| a presently owned interest in a specific thing which entutles the owner thereof to immediate present possession and beneficial enjoyment of that specific thing |
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Term
| Priorities (in order) for conflicting terms, when survey described by metes and bounds |
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Definition
| 1) Natural monuments, 2) Artificial Monuments, 3) Maps/ plats/ field notes, 4) courses 5) distances 6) description by name, 7) description by quantity *a locative description will prvail over a description whose purpose is only directory/ identification |
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Term
| Priorities (in order) for conflicting terms, when survey made and MARKED on the ground & marks are IDENTIFIABLE |
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Definition
| Monumented line of survey controll over maps/ plats/ field notes |
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Term
| Priorities (in order) for conflicting terms, when survey made and MARKED on the ground & marks are NOT IDENTIFIABLE |
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Definition
| Plat or field notes prevail; NB if plat and field notes conflict PLATS controll field notes, both of which controll over courses and distances |
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Term
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Definition
| an act/ condition on the defendants land that SUBSTANCIALY AND UNREASONABLY interferes with plaintiff's use and enjoyment of HIS LAND.; usually an intangible invasion (smell/ light/ sound/ vibration) b/c PHYSICAL INVASION IS TRESPASS |
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Term
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Definition
| a presently existing aggregate of rights, privaledges, powers, immunities, duties, and obligations with regard to a spefic thing which exists only in a particular person, and which is good against an indefinitely large number of persons |
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Term
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Definition
| occurs by K of sale, gift, will or other means of inheritance (intestate succession) of singular right to possess the original possessors item |
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Term
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Definition
| the two parties within the contract are principles to the agreement |
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Term
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Definition
| Applies to real covenants only |
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Term
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Definition
| the right to enter another's land (w/o liability for trespass) and remove minerals/ timber/ other natural resources upon the land (like hunting/fishing or removal of soil); PROIT INTEREST HAS AN EASMENT TO VENTURE ONTO THE PROPERTY TO ENJOY THE PROFIT INTERESTS |
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Term
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Definition
| measured by the life of ___; ex. LE pur autre vie---> life estate measured by the life of X |
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Term
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Definition
| buyers, mortgagees, lessees or anyone else who gives value for any interest in a property. Not included are people who receive interest through gift/ charity/ or inheritance. NB for creditors the court will demand SOME NEW VALUE TO BE GIVEN TO A MORTGAGE to consitute purchasor, if the land is used as collateral for an existing debt the motrgagor is not a purchasor (but giving debtor extra time to pay for this collatoralization may constitute additional value) |
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Term
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Definition
| the first person to record wins, EVEN IF he knew about a previously unrecorded conveyance ---- allmost all state legislatures reject PURE RACE STATUES because of the bad faith element when someone knows of another conveyance but can still win title |
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Term
| Purpose for the easement ends (termination of the easement) |
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Definition
| most often used for easements implied by necessity, and the easement ends as soon as another way to enter ther property arises |
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Term
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Definition
| the owner of one tract of land uses one part of the land to the benefit of the other part of the land, this may become an easement if he sells one of the tracts/ divides the land but requires continuous use of both tracks to continue this activity |
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Term
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Definition
| a deed without warranty which is derived from the common-law release; this has no specific quality of title nor specific covenants of tit.e/ basically deed saying I'll give you whatever I have |
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Term
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Definition
| when two or more persons hold competing claims to a property, the first person to record prevails --- jurisdictions use these because they foster certainity of title & promote recording |
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Term
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Definition
| Subsequent BFP/ creditor WHO RECORDS FIRST previals against a PRIOR UNRECORDED interest so long as purchasor DID NOT HAVE NOTICE of the preceeding interest at any point before closing of the sale (purchasor is allowed to know at time of recording the document) |
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Term
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Definition
| covenants that run with the land; a successor in title may be susbtituted for the predecessor in the right to enforce the obligations of the covenant. |
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Term
| Real Covenant/ Equitable Servitude SIMILIARITIES |
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Definition
| they are both INTEREST IN LAND either agreements, promises, or deed provisions that relate to the real property and that bind or benefit any subsequent owners of the respective properties SOLELY BECAUSE THEY OWN THE PROPERTY. This grant must satisfy Statute of Frauds by either a written agreement, or equitable estopple by partial performance. Intent to bind and Touch & Concern are required for both |
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Term
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Definition
| land and interests in land; property that can be recovered in specie by a real action |
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Term
| Reasonable use doctrie (of percolating water) |
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Definition
| American rule, percolating water must be used solely on the overlying land if use of the resource elsewhere would cause hardship to other landowners who have ACCESS TO THE COMMON POOL |
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Term
| Recision (Termination of Covenants and Equitable Servitudes) |
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Definition
| landowners can sign a document rescinding the covenant so that the cov no longer binds the property; this is effective only if all bound landowners join in this release (common for developers when all purchasers in subdivision agree that covenant is innappropriate) |
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Term
| Recording act (termination of Real Cov or Equitable Servitude) |
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Definition
| after recording of covenant, a subsequent BFP of property who takes the land without actual/ constructive notice and no ability to inquiry is not bound to the cov/ equitable servitude |
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Term
| Recording Acts (termination of easement) |
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Definition
| a subsequent BFP/ purchaser at forclosure who obtains title without actual, constructive, or notice through inquiry of the esistence of the easement is NOT BOUND. THESE PEOPLE ARE BOUND IF THE EASEMENT WAS RECORDED BEFORE THECURRENT DEED OR MORTAGE |
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Term
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Definition
| Idea that person can have a relatively better claim to title than another person, but can also in some cases have an inferior right |
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Term
| Release (termination of easement) |
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Definition
| a written transferance of part or all the easement by holder of the easment (usually through a deed) to the ST owner) |
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Term
| release (under lease and release) |
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Definition
| any conveyance by a reversioner or remainderman of his interest to thr owner of the present possessory estate |
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Term
| Release(Termination of Covenants and Equitable Servitudes) |
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Definition
| owners of the BENEFITTED property can grant a written release to the burdened property owner; this release must satisfy SoF and be recorded with the land records. If two or more lots are benefitted ALL BENEFFITTED LOT OWNERS MUST JOIN/ SIGN THIS RELEASE |
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Term
| Relief for private nusisance |
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Definition
| usually injunctive relief is delievered after the balancing of the utility of the nusance determines nusiance is unreasonable & defendant can reduce/ avoid the harmship; injunction avoided if this act is a PUBLIC NECESSITY |
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Term
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Definition
| the future interest in a LE owned by a 3rd party that is not the grantor, the interest is tranfered when the prior interest ends naturally. This remainder MUST BE GRANTED to the 3rd party IN THE SAME DOCUMENT that creates the LE/Fee Tail/ Term of years |
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Term
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Definition
| FI in the 3rd party MUST become possessory IMMEDIATELY ON THE NATURAL TERMINATION OF THE PRIOR ESTATE/ POSSESSOR |
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Term
| 4 requirements for remainder |
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Definition
| 1) Same time, 2)interest in someone other than grantor, 3) natural termination of prior estate, 4) no built-in-time gap.; if not than Life Estate |
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Term
| Remedies for equitable servitude |
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Definition
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Term
| Remedies for real covenants |
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Definition
| breach allows either monetary damages or injunctive relief |
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Term
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Definition
| An action to recover the chattel itself (A bailed car to B, A asks for car back and B refused so A may sue for replevin of the car) |
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Term
| Requirements for Implied Easements |
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Definition
| For an easement to arise by implied grant or implied reservation, it must have existed and been enjoyed as an apparent, continuous, and necessary quasi-easement prior to the conveyance that caused it to arise by severing a quasi-dominant tenement from a quasi-servient tenement |
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Term
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Definition
| must be an instrument 1)in writing, 2)executed in accordance with the statutory formalities required by local law, 3) language must describe the land being conveyed, 4) must specifically state interest being conveyed, 5) intent to convey; 6) all reservations/ restrictions/ exceptions for title; 7) it must be delivered to and accepted by grantee 8) must describe any consideration paid |
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Term
| Reservation (contained in deed) |
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Definition
| a clause in a deed/ other instrument of conveyance by which the grantor creates, and reserves to himself, some right/interest/profit in the estate granted, which reserved right had no existence as such prior to this instrument reserving it (ex. Easement) |
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Term
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Definition
| a thing that is always not in being at the time of the convyance which granor reserves the reight to himself |
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Term
| Reservation v. Exception (in fee) |
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Definition
| to be valid in fee the reservation requires the use of words of inheritance b/c reservation is a transfer from grantee to grantor; an Exception does not require words of inheritance b/c it is a retention by grantor of something he already owns |
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Term
| Reservation v. Exception (incorporeal interest in land) |
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Definition
| exception results in retention by grantor of CORPOREAL interest IN LAND; a reservation results in retention by grantor of an INCORPOREAL INTEREST IN THE LAND (ex. An easement) |
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Term
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Definition
| covenant that restricts or prohibits the uses that can be made of the burdened property; ex. No residences, no animals on property, no sale of alcohol, THE WALL CANNOT FALL INTO DISREPAIR |
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Term
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Definition
| Words that are ineffective as operative words in deeds |
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Term
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Definition
| grantors future interest to receive possession of the land when a certain event occurs/ this reversion follows the NATURAL TERMINATION of the preceeding estate. Grantor must have transferred an interest to another person LESS THAN the interest he owns. (in LE this is death of possessor, Fee Tail- family bloodline ends, Term of years- ends naturally at a designated time) |
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Term
| right of possession of surface water (riparian) |
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Definition
| For riparian states (states that have plenty of water) each person who posesses land next to this water source has REASONABLE USE; some restrict the water to reaonable use on parcel that abut the water source |
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Term
| Right of possession of surfact water (where water is scarce) |
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Definition
| Water use in desert/ dry areas is based on PRIOR APPROPRIATION; the first person to make a beneficial use of the water gains a vested right to continue that use |
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Term
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Definition
| grantors FI that follows a FS subject to CS; this requires a condition precedent |
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Term
| Rights of possession for percolating water |
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Definition
| owner of property at one time had an absolute right to take/ withdraw percolating water & can use the resource at will |
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Term
| Rights of possession of finder or owner of the locus in quo |
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Definition
| this person becomes the title owner of the property, he acquires the right of possession as against the whole world EXCEPT THE TRUE OWNER |
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Term
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Definition
| the document by which the federal or state government granted the land to a private person; this may be a judicial proceeding (ex. Judgement awarding AP) or some other form of transfer document. Jurisdiction put the burden upon the latest person in chain of title to ensure this remains unbroken. |
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Term
| Rule against perpetuities |
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Definition
| forbids some future interests (traditionally contingent remainders and executory interests) that may not vest within the time permitted which is usually 21 yrs; In essence, the rule prevents a person from putting qualifications and criteria in his will that will continue to control or affect the distribution of assets long after he or she has died |
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Term
| Rule against perpetuities |
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Definition
| UMD LAW NOT STUDY Since MD Hasn't passed it yet; return and review for the bar |
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Term
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Definition
| ABOLISHED IN 40 STATESwhen a devise or conveyance transfers a freehold estate to a person and in the same instrument also transfers a R to the SAME PERSONS HEIRS/ HEIRS TO HIS BODY, and either both estates are legal or both are equitable; the first-named freeholder holds the freehold estate and R either for life/ FSA/ Fee tail, the heirs get nothing but the grant "to A for life, remainder to A's heirs" |
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Term
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Definition
| accepted suppositions that can be rebutted by evidence; they are not laws |
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Term
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Definition
| the remote/ subsequent purchaser must have a possessory interest in the property b/c possession allows controll of use (or courts assume this) |
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Term
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Definition
| successor must receive ENTIRE ESTATE OR OWNERSHIP INTEREST from original promisor; LANDLORDS can never grant VP b/c they always retain theright of reentry |
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Term
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Definition
| the extent of use an easement holder may make of a ST; the holder's use cannot exceed this scope, usually use limited to reasonable enjoyment of the DT and not unreasonably burdensime to the ST |
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Term
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Definition
| Cl- seal was essential, & seal still essential in some j's to this day. In many j seal is not a requirement for deed to be valid, just need signature of grantor/ agent. |
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Term
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Definition
| possession (either actual or constructive) claiming a possessory estate of freehold in the land; someone must always hold seisin |
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Term
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Definition
| A warranty that the grantor/ possessor has legal rights to the estate convyed/ possessed |
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Term
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Definition
| property burdened by the easement |
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Term
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Definition
| property burdened by the easement |
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Term
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Definition
| property burdened by the easement |
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Term
|
Definition
| Words that are ineffective as operative words in deeds |
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Term
| Shifting Executory interest |
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Definition
| A third party interest in an estate in land created by the conditions of a grant WITHIN THE CONVEYANCING DOCUMENT wherein the grantor gives the land to a second party, but with the occurrence of a condition divesting the second party of the land in favor of the third party. (Ex. J gives land "to M, but if H graduates from school, to H". H has an shifting executory interest because his graduation from school divests M of ownership) |
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Term
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Definition
| Words that are ineffective as operative words in deeds |
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Term
| Signature (Deed requirement) |
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Definition
| CL- signing not essential if the instrument was under seal b/c seal took place of signature; Modern- signature of grantor/ agent is essencial; in some j grantor/ agent must subscribe the deed ( sign at the end of the doc) |
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Term
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Definition
| a deed in which covenants of title only warrant against acts done by the IMMEDIATE GRANTOR of the deed itself, or those under him (ie the covenant is not violated if some earlier owner in chain of title than the present grantor impaired the title) |
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Term
| Specifically performable K (easement) |
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Definition
| expenditure must be viewed as consideration which made ORAL K enforcable & expenditures constitute partial performance |
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Term
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Definition
| a structure placed on A DEFENDANTS OWN LAND for the sole purpose of depriving neighboring landowner/ possesser the use of laight & air or blocking the view; such action is a PRIVATE NUISANCE |
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Term
| Sprining executory interest |
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Definition
| An interest in an estate in land created by the conditions of a grant wherein the grantor cuts short the grantor's own interest in the property in favor of the grantee, contingent upon the occurrence of a specific condition. (Ex. J gives land "to H, if H graduates from school". J has an SPRINGING executory interest because H's graduation from school divests J of ownership) |
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Term
| ST owner's power for exclusive/ noneclusive Easements in Gross |
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Definition
| ST owner has the power to decide HOW MANY PEOPLE/ COMMERCIAL GROUPS can use the easment |
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Term
| standard of proof for causa mortis gifts |
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Definition
| clear and convincing evidence |
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Term
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Definition
| a party in the deed that is not a grantor, grantee or any spouse; neither a reservation or an exception cannot be made to the strange of the deed because these are not words of grant |
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Term
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Definition
| a person who briefly takes legal title for the sole purpose of rec-conveying the property back to the grantor (usually a member of attorney's office like secretary/ paralegal) |
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Term
| Strict Necessity (implied easements) |
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Definition
| most courts determine this to mean access to easement is necissary for the enjoyment of the parcel, or use reasonable necessity; some require absoolute necessity. A parcel landlocked by navigable water and access to the public (at the court's descretion) can quality for an implied easement) |
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Term
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Definition
| when easement holder removes minerals/ water etc buried under the topsoil that causes the land to subside; either the topsoil can collapse in through removal of minerals or collapse caused by removal of underground water but only if the neighbors removal of this water was MALICIOUS |
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Term
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Definition
| the conveyance by a lessee LESS THAN THE ENTIRE remaining balance of his estate for years |
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Term
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Definition
| NO, a sublease retains possibility of reverter and as such does not transfer his entire interetst |
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Term
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Definition
| a succession to another's right or claim, it places ownership in one other than the person originally holding the claim; usually done through trover |
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Term
| subsequent owners (real covenant/ equitable servitude) |
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Definition
| parties not to the original agreement but now own/ subsequently owned the property that may be benefitted or burdened by the covienet began by previous owner since the covenant runs with the land. |
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Term
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Definition
| the conveyance in writing by the owner of a present possessory estate of his interest to the reversioner or remainderman |
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Term
| Symbolic delivery (bailment) |
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Definition
| bailor gives the bailee a thing symbolizing the object of the bailment (usually transferrence by use of a written instrument) |
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Term
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Definition
| the thing delivered as a gift stands in place of the actaul object (ex. Photo of a car, that is being shipped out; groupon purchase of an item/ reciept of the purchase) |
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Term
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Definition
| successive possessors of the property may "tack"/ combine their respective periods of AP AS LONG AS THE POSSESSORS ARE IN PRIVITY |
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Term
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Definition
| a first AP grants subsequent AP the time 1st used the property to 2nd time to run SoL; THIS MUST HAVE PRIVITY |
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Term
| Tangible personal property |
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Definition
| property of a physical nature that can been seen & touched. (ex. Cars, books paintings…) |
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Term
| Tenancy by the entireties |
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Definition
| 1) Conveyance to two people who, at the time of conveyance, are husband and wife. 2) Not severable & NEITHER H OR W CAN UNILATERALLY TRANSFER THEIR INTEREST DURING LIFE 3)the married couple must own the property as an undivided unit not with equal shares 4) surviving member gains possession of the unit Both H and W would have to join in conveyance. (ex. H takes loan and gives home as collateral. If wife didn’t sign or H forges and Wsurvives, bank is out of luck.) |
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Term
| Tenancy in common- 4 key traits |
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Definition
| 1) Each person owns a fractional interest (as part of an undivided interest), 2) Each person has an equal right to possession and enjoyment, 3) Interests are assignable/ devisable or inheritable at death, 4) Doesn’t need to be created at the same time and by the same instrument. |
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Term
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Definition
| each co-tenant has an equal right to possess the whole property and to share equally the rents, and appreciation of lands value; each tenant has an undivided interest which grants seisin to each holder and the right to possess the whole parcel. Usually the % of gains or burdens from the land are distributed by cotenants according to % of ownership |
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Term
| Tenancy in Common vs. Joint Tenancy with Right of Survivorship |
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Definition
| TIC Prefferred in most states, unless otherwise stated by local statutes |
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Term
| Term of Years/ Tenancy for years |
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Definition
| a lease for a fixed period of time |
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Term
| Termination By terms of the Covenant (Termination of Covenants and Equitable Servitudes) |
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Definition
| deed/ common covenant restriction contains express terms that state when the covenant AUTOMATICALLY terminates |
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Term
| Termination of Covenants and Equitable Servitudes (12 ways) |
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Definition
| 1) by terms of the covenant, 2) merger, 3) release, 4) recision, 5) Unclean Hands, 6) acquiescience, 7) Abandonment, 8) Laches, 9) Estoppel, 10) Changed condition, 11) Recording Acts, 12) Eminent Domain |
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Term
|
Definition
| how or when the estate ends |
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Term
| Terms of the grant (termination of easement) |
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Definition
| the easement expires AUTOMATICALLY due to the express terms of the grant; this could expire because of a set expiration date, a term of years or a condition (ex. Easement for ingress and egress as long as grantee continues mining operations or alternative roadway becomes available) |
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|
Term
| Time Requirment (perscriptive Easements) |
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Definition
| usually the same length as the local SoL |
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|
Term
| Title for abandoned property |
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Definition
| 2 requirements: 1) actual/ construictive dominion and control over the thing, and 2) an intent to assert ownership over it |
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Term
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Definition
| mortgagee has legal title to the mortgaged land subject to the complete defeasance of the condition subsequent (the repayment of the debt); mortgagor has equitable interest in the land known as EQUITY OF REDEMPTION, and is the legal owner of the mortgaged land against all owners except the mortgagee |
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Term
|
Definition
| mortgagor is considered the owner of the land, mortgagee only has a lein upon the land (which only protects m-ee's security in the land) |
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Term
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Definition
| AP SoL will not run against the original owner; usually done for disability, minors, imprisonment, outside of jurisdiction; tacking ends and SoL continues to run once Owner's condition is normalized; disability ust have existed on the date of AP's entry upon the land & no combination of impariments (15 year old who is sentanced to prison at 19, tacking ends 21 when he reaches majority) |
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|
Term
| Tolling of the Statute (AP) |
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Definition
| the time for special conditions (disability, Defendant out of jurisdiction, fraudualent concealment) to be met are NOT countined to run the SoL; if the SoL has run and the special conditions develop the AP must wait untill the owner has returned to normalcy |
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Term
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Definition
| all documents affecting a parcel of land are indexed on a page for that parcel; the parcel searcher must find the parcel's page b/c it contains a summary of all the documents affecting the parcel |
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Term
| transferrance of land "assuming" the mortgage |
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Definition
| grantee is personally liable for the mortgagors debt and personally liable for outsatnding debt if forclosure sale of land is insufficient to cover debt obligations |
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Term
| transferrance of land "subject to" the mortgage |
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Definition
| grantee must accept land interest with this mortgage; mortgagor NOT GRANTEE is personally liable for the repayment, but failure to repay can result in loss of mortgage land |
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Term
|
Definition
| an action to recover MONEY DAMAGES incurred b/c of dispossession of the item |
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Term
|
Definition
| a trespassor who kills game ON ANOTHER LAND forfeits his/ her TITLE in favor of the landowner. The landowner is not regarded as the owner of all wild animals found on his property, this is meant to discourage trespassing |
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Term
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Definition
| tresspasser-finders are generally not allowed to have possessory rights in lost property. Ownership falls onto the property owner where the item is found. |
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Term
|
Definition
| an action to recover THE VALUE OF THE CHATTEL along with DAMAGES FOR DISPOSSESSION; this is a forced sale b/c the person compensated loses his right of possession to the item |
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Term
|
Definition
| 1) vested remainders 2) contingent remainders 3) vested R subject to divestment 4) vestsed R subject to open |
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Term
| Unascertained v. ascertained |
|
Definition
| this deals with: if the person is directly/ concretely identified. Named individuals ARE ALWAYS ASCERTAINED, indiv not named but given extensive description usually ascertained (highly depednant on level of inquiry to identify the person), unnamed & poorly described usually unascertained, unborn baby ALMOST ALWAYS UNASCERTAINED |
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|
Term
| Unclean Hands (Termination of Covenants and Equitable Servitudes) |
|
Definition
| an owner cannot enforce a covenant if this owner violates the terms of the covenant |
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Term
|
Definition
| Groundwater that flows in a channel; this has the same posession rights/ characteristics as above surface waterways |
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Term
|
Definition
| A JT can secretly sever a JT by transferring the interest to a 3rd party |
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|
Term
| Unity of Interest (JT w RS) |
|
Definition
| Each JT must own EQUAL SHARES of the same estate |
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|
Term
| Unity of Possession (JT w RS) |
|
Definition
| Each JT has right to possession of the WHOLE PROPERTY |
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Term
|
Definition
| JT interest must VEST AT THE SAME TIME |
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|
Term
|
Definition
| one cannot have actual legal possession of something he/she doesn’t know that he physically possess (or knows that the item exists) |
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|
Term
| Exception to unconcious possession: EXPECTABILITY RULE |
|
Definition
| the person acquires the legal possession of the reasonably expectable contents of that conveyance |
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Term
|
Definition
| JT must acquire title in the same deed/will |
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|
Term
| US courts holding on Negative Easments |
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Definition
| US courts are reluctant to enforce Negative Easment because they want to foster bargained for exchanges; only look to water easements/ view easments/ solar easement (view sun for solar energy)/ conservation easement (given to charity to conserve/ protect the land) |
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Term
| Vertical Privity (real covenant/ equitable servitude) |
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Definition
| promisee must receive the original promisor's ENTIRE estate/ interest, either through a direct transfer or reciept through persons in chain of title; |
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Term
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Definition
| when one person in the class is identified/ ascertained the class is vested; a class that is vested but can have more people added to the class later is treated as a contingent remainder untill the class CLOSES (all persons in the class are ascertained) |
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Term
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Definition
| (1) the remainder is given to a presently existing and ascertained person, and (2) it is not subject to a condition precedent. A vested remainder may be indefeasibly vested, meaning that it is certain to become possessory in the future, and cannot be divested. An example, O conveys to "A for life, then to B and B's heirs." B has an "indefeasibly vested remainder" certain to become possessory upon termination of A's life estate. B or B's heirs will clearly be entitled to possession upon A’s death. A vested remainder may not be certain to become possessory. An example of this: O conveys "to A for life, then to A's children." A has one child, B, so B has a vested remainder because B is ascertainable. But, A may have no other children in his life, and B could die before A, so the vested remainder is not certain to become possessory. Instead B is said to have a vested interest subject to partial (more children) and complete divestment (if B dies). |
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Term
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Definition
| 1) owned by an ascertained person/ persons (a person who can be named or identified), and 2) not subject to condition precedent. This becomes possessory on the natural termination of the immediately preceeding estate |
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Term
| Vested remainder subject to open |
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Definition
| R that belongs to a class of beneficiaries identified by descriptions not by name, where that class can expand (a class gift). A common example is a grant from O "to A's children", where A is a man: the class of A's children can't be closed until approximately thirty eight weeks after A dies, so any children alive at the time of the grant are vested subject to open. This interest is also sometimes referred to as being vested subject to partial divestment b/c each additional class member removes interest from other members of the clas. |
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Term
| Vested remainders subject to Divestment |
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Definition
| if something could occur that would divest the remainder of an interest. For example "From O to A for life, then to B, but if A stops growing corn, then to C": B would have a vested remainder subject to divestment because he could be divested of his interest by an act of A before the interest becomes possessory. |
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Term
| Vested vs. Contignent remainders |
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Definition
| 1) PI ALWAYS VESTED 2) ALL FI in THE GRANTOR VESTED 3)FI in 3rd parties ---- either vested or contingent |
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Term
| Violation of statute (wild animal) |
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Definition
| one who violates a statute (ex. Failure to have a hunting license) forfeits his title to animals caught/ injured |
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Term
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Definition
| no title; this usually occurs when a person attempts to transfer better title/ a greater interest in a property rights that he possesses |
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Term
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Definition
| title transferred by true owner under fraudulent/ misleading conditions & true owner has option to rescind the tranaction and get the property back; NOTE A BFP WILL ALWAYS GAIN POSSESSION EVEN IN CASES OF VOIDABLE TITLE |
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Term
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Definition
| Words that are ineffective as operative words in deeds |
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Term
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Definition
| a deed that contains the covenants of seisin and warranty; this proports to convey a specific quality of title (FSA…) and also covenants assuring that is the title being conveyed |
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Term
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Definition
| possessory life tenant permanenty impairs the property's condition/ value to the detriment of the future holders; future holders can collect damages or bring injuctive relief to stop the waste; "to a --- WITHOUT IMPEACHMENT FOR WASTE" gives land holder immunity from suit by FI holder |
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Term
| Ways one can gain actual notice |
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Definition
| personal observations, a document in the deed record, or hearing about the priovous purchaosr from coversations (involving or not involving the transaction itself) |
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Term
| WE DID NOT COVER CHPT 14 Martial property |
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Definition
| return for review for the bar |
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Term
| Wild animal- mortal wounding |
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Definition
| hunter has right of posession if he is in close persuit after inflicting such a wound. His claim is superior to others who may interject at a later timr |
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Term
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Definition
| technical terminology for when a FSC/Fee Tail line ends/ dies out |
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Term
| Words of inheritance (subclass of limitations) |
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Definition
| words that indicate the INETEREST an heir inherets at grantors death |
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Term
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Definition
| words that indicat the kind of interest the grantee recieves |
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Term
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Definition
| these words indicate who the grantee of the interest in the land is; may be done by dee or by will |
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Term
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Definition
| properity is abandoned if collected (piles of horseshit give notice of effort done to collect horseshit) |
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Term
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Definition
| druck trappin is unfair interference b/c malicious intent to harm neighbor and no intent to trap/ use ducks |
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Term
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Definition
| "fox in hand" not needed for possession, killing give automatic possession b/c "depriving animal of natural liberty" |
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Term
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Definition
| custom is permissble to prove possess & party on notice (harpooned whale --- custom using personalized harpoons) |
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Term
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Definition
| bans Malicious or willful destruction |
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Term
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Definition
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Term
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Definition
| no control over lost/ mislaid/ delivered by mistake property |
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Term
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Definition
| their beats subsequent theif (log cutters have better claim than mill operators) |
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Term
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Definition
| impermissible use/ bad faith use can permit recovery byond value of the good (egg washer awarded damages more than the machine's value b/c bad faith) |
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Term
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Definition
| innocent purchaser of property from a wrongdoer must first be informed of defect in title & have opportunity to deliver property to the true owner b/c liable for wrongful conversion (german stolen paintings) |
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Term
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Definition
| possession is prima facie evidence; first finder beats subsequent finder (logs adrift in lake belong to first finder, not subsequent possessor) |
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Term
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Definition
| no possession without knowledge of the item (no possession of box containing 2 lbs. of pot) |
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Term
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Definition
| things attached to land are part of real property, belong to owner (comet embedded in land belonds to LL) |
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Term
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Definition
| finder of abandoned property is rightful owner (chimney sweep finds jewel) |
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Term
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Definition
| whoever holds mislaid property has inferior claim than 1) true owner 2) property/ shop owner (found wallet property of barber) |
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Term
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Definition
| landowner's property rights over goods are partially extinguished by work done to transform the goods (logs into barrel hoops, TRANFORMATION IN GOOD FAITH) |
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Term
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Definition
| What's being chased belongs to the finder, the landowner possesses things attache to the land (Fisher chased bees, stewart owned land of the beehive/ honey) |
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Term
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Definition
| he statute of limitations for the recovery of chattels begins at the time of conversion. The time of conversion is defined to be the time at which the actual possessor acts to exclude ("demand and exclude") the rights of the true owner. (Song owners waited too long to demand parties not use songs, so lost property rights) |
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Term
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Definition
| A promise to make a gift is unenforcable, equivalent to unenforceable contract, needs delivery & acceptance = father promised colts to son but never delivered |
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Term
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Definition
| Will Formalities 1) in writing, 2) signed by the testator ( or another for him) in his presence and by express direction, 3) 2+ witnesses present |
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Term
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Definition
| Holographic/ handwritten will -- armed servicemen only |
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Term
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Definition
| Will creator has responsibility to ensure will created according to formal requirements (GA bank owner had bank employees sign the will out of his sight) |
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Term
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Definition
| order of distribution of net intestate estate |
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Term
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Definition
| Shares of surviving spouse (1/2) |
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Term
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Definition
| Distribution of surviving issue (priority to all except surviving spouse) |
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Term
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Definition
| distribution w/ no surviving issue (siblings of deceased, 2) parents, 3) grandparents, 4) great grandparents, 5) step children, 6) eschat to the state Board of Education) |
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Term
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Definition
| Warranty of title -- 1) transfers good title, 2) no SI or leins 3) warranty of Title can be modified by express terms of the contract |
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Term
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Definition
| Power to transfer -- 1) party can only sell the interest HE HAS THE POWER TO TRANSFER, 2) permits transfer of voidable title, 3) transfer occurs despite decieved of purchaser's true identity/ dishonored check/ cash sale/ lacenous fraud, 3) merchants have power to transfer to 3rd party baileees done in ordinary course of business |
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Term
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Definition
| transferor with VOIDABLE title can transfer good title to a GOOD FAITH purchaser; if PURCHASERS HAD ACTUAL BELIEF IN THE BUYER (jewlery store didn't have good faith when bought rolex from 3rd party --- deal was too good & insufficient action to check seller's title) |
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Term
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Definition
| merchants who deal in goods can give good title for sale of goods; Buyers have good title even if seller had bad credit, places onus on wholesellers not to conduct business with bum merchants |
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Term
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Definition
| Warehouse duty of care --- warehouse liable for damages for "reasonable careful person" (neligence standard) NOT AUTOMATICALLY LIABLE for damages while in possession |
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Term
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Definition
| Carrier's duty of care -- damages determined by "reasonably careful person" (negligence standard); limit or exclaim damages through express term in BILL OF LADING, cannot exceed liability amount in transportation agreement |
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Term
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Definition
| A bailment is created when the owner of a chattel gives 1) custody and 2) control over the chattel to another to hold until the owner requests delivery (bailment created when the property was left in parking garage) |
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Term
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Definition
| 3rd parties can rely on impressions or statements conveyed from the ostensible owner; ostensible owners have burden to provide notice of ownership to 3rd parties (auto shop with mechanic's lein can recover from car dealer -- this is a common lein) |
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Term
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Definition
| SP can seek self help to recover PERSONAL PROPERTY if actions do not breach the peace (car repossession epossession was accomplished without any incident which might have provoked violence) |
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Term
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Definition
| (MD code) owner has to deliver TITLE if he/she transfers interest (UNLESS retains perfected SI) -- this is convenience, nonexclusive |
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Term
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Definition
| (MD Code) registration is required, and is a separate doc from car title |
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Term
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Definition
| (MD Code) Attaches lein to property; SI on title is CONCLUSIVE NOTICE to 3rd parties, if SI is unperfected SI rights not guaranteed |
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Term
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Definition
| Specific statutes trump general UCC code. Car ownership passes when 1) owner executes assignment of warranty of title (on back of certificate of title) w/ name & address of transferee; 2) actual/ constructive delivery of the car; 3) certificate of title delivered to transferee |
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Term
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Definition
| Bills of sale/ other outstanding debts are equivalent to cash consideration (P is GF purchaser of land with CLEAR TITLE b/c no knowledge the land sale is fraudulent) |
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Term
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Definition
| Good Faith for Negotiation instrument holder/ purchasers require: 1) for value, 2) in good faith, 3) without notice of -overdue/ dishonored/ default outstanding debt or unauthorized SIGNATURE ON DOC OR susbequent claim to recoup |
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Term
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Definition
| Good faith purchaser takes property right to claim the instrument; FULL PROPERTY RIGHT -- cuts off any notice challenges |
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Term
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Definition
| Negotiation --- transfer of possession either voluntary or involuntary, of neogtiable instrument by 3rd party who is the holder; REQUIRES HOLDER'S SIGNATURE if instrument is payable to the identified party |
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Term
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Definition
| 3 defenses for NI 1) infancy, 2) durress/ lack of legal capacity/ illegality of the transaction, 3) fraud which conduced signing, 4) discharg through insolvancy |
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Term
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Definition
| Doc of title-- include bill of lading or any bailees reciept ---must 1) be issued by the bailee, and 2) state & describe items its covers |
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Term
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Definition
| trustees have legal duty of loyalty -- prevents T from accepting employment/ conducting business from 3rd part that is self dealing against trustee (Trustee of Famous Painter Liquidated inherentance of paintings to museums well below market value & despite beneficiary's objections |
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Term
| Broadway National Bank v. Adams |
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Definition
| income of a trust fund created for the benefit of another cannot be reached by attachment, either at law or in equity, before it is paid to the beneficiary (bank tried to collect from grantor) |
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Term
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Definition
| Liability of corp will fall on individual owner it demonstrated that the operated used his control for personal gain ( taxicab owner used "corporations as a piggy bank" & liability shield) |
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Term
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Definition
| No scrutiny for actions that satisfy business judgement rule (Coop board properly evicted douche tenant after unanonmous vote to evict) |
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Term
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Definition
| to establish a conversion, Plaintiff must establish an actual interference with his ownership or right of possession, if Plaintiff has neither title nor possession, he may not maintain an action for conversion. (Cancr patient did not intend to maintain possession of cancerous blood cells after their removal) |
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Term
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Definition
| Patents usuallly physical property is superior right to resale (b/c EXHAUSTION - once the owner buys the patented item exhausten precludes resale) --- if use w/o infrindgement is impossible, patent is invalidated |
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Term
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Definition
| Tm protects a specific product, "generick mark" is one that is known to denote a GENERAL TYPE of good or product category |
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Term
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Definition
| Enforcement of copyright protection is balanced against enforcement costs that limit public creativity and new ideas ( rejct infringement claim of playright based on ethnic stereotypes) |
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Term
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Definition
| Copyright does not prevent imitation, only statutes can prevent this (dress design cannot be copyright protected) |
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Term
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Definition
| The United States has exclusive title to land because of the discovery and conquest of America by Europeans. Thus, when title originally comes from the United States, that title has priority over any conveyance of land by an Indian tribe. For all parcels of land in America, the chain of title begins with the United States government. (Indians do not possess title, they cannot convey title to others) |
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Term
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Definition
| An american that finds a mineral depoist on uninhabited/ unclaimed island & takes PEACABLY, gives notice veriefied by afffidafied containing coordinates, has the exclusve right to occupy land and take guano |
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Term
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Definition
| it does not take actual harm to a person’s property for actual harm to occur when someone intentional trespasses upon that land. Egregious acts allow punitive damages exceeding nominal damage, even if no actual damage, because right to exclude others is fundamental (trailer deliveror violated owners express prohibition to use land for delivery) |
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Term
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Definition
| Homeowner/renter with less than 5 rooms for guest occupancy CAN DISCRIMINATE in choice BUT CANNOT DISCRIMINATE in public ads |
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Term
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Definition
| Private property owners can keep out whomever/ whatever they want, unless they serve public calling/ are a common carrier (Horse track allowed to keep out ticketholder, ticket merely a license to enter) |
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Term
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Definition
| Injuctive relief only granted for REPEATED trespassor ONLY IF this will have the desired effect on tresppaor & knowledge of trespass but continued to trespass (Fox hunting club trespassed on Dr.'s land and the club's dog bit the wife) |
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Term
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Definition
| WHEN NO POSSIBILITY OF SETTLEMENT strict property rule when dealing with encroachments; Trespass remedied in two ways: 1) permanent tresspass & compensate in damages, or 2) remove offending building/ structure (D built a wall and later discovered it went onto P land, an unintentional intrusion, must be removed) |
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Term
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Definition
| Balance of hardship tests ONLY used for good faith trespassers (slight underground encroachment caused by improper land record) |
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Term
| Producers Lumber v. Olney |
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Definition
| If the building upon the land of another was done in good faith the court will issue equitable relief. When a person erects upon the land of another without knowledge or consent the building belongs to the owner of the land, the builder is without remedy. IF the builder trespasses onto the land and destroys the building he commits waste. (developer destroyed house on another's land after settlement stalled) |
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Term
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Definition
| Nuisance cases of balancing interest between owner and other party, landowners can use land in any way proper that does not harm other landowners (drilling well ok, court denies claim by neighor who wanted but couldn’t install a septic system) |
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Term
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Definition
| subsequent purchasers can be responsible for previous use of property, provided sufficient notice of prior use (Ground contamination from parcel's previous owners) |
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Term
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Definition
| purchaser/ occupier can tack on previous land possessor's time of occupancy (deeds to summer beachhouse misrecorded long ago, subsequent parcel owners had good faith under COLOR OF TITLE since land deeds were improperly recorded) |
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Term
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Definition
| Bad faith adverse possessers will not gain title (neighbor who cleared rat infested field not given title b/c bad faith since she knew it was neighbor's land) |
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Term
| Coffin v. Left hand ditch |
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Definition
| Priority of apporpriation all exhaustion of resource (Def build many dams upstream, diverted stream entirely ) |
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Term
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Definition
| Reasonable use of flow judged on case by case basis, can right to control flow so long as it does not impact downstream users (Upstream mill vs. downstream mill) |
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Term
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Definition
| right to use land is not right to total contro, only control/ own that which the owner can use (Landowner under plane landing runway) |
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Term
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Definition
| subsequent transmissing along a close frequency isn't a nuisnace or tresspass if it is 1) minor and 2) harmless (Radio Station airs on frequency very close to old, popular station) |
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Term
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Definition
| Rule of construction of an ambigupus will favors conveyance of FSA ("to have the home to live in and NOT TO BE SOLD" conveyed FSA, not LE) |
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Term
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Definition
| Restrictions on alienability of FS conveyances fail, but restrictions on right to use are upheld (conveyance in FS CS which discontinued use of parcel as lodge would revert, use restriction kept but court severed sale restriction) |
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Term
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Definition
| A life tenant may not demolish his inherited building against the wishes of the remaindermen even if the property would be more valuable if demolished, action would constitute waste. (4 mansions can't be destroyed to erect APT) |
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Term
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Definition
| (MD Code) FSA assumed, unless specific words of inherentance present in conveyance |
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Term
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Definition
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Term
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Definition
| (MD code) 30 years for AP SoL |
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Term
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Definition
| Creating an interest in 3rd parties that could take effect at an indefinite point in the future will be striken by rule against perpetuities (Grant to city for use as a library, indefinite reverter not upheld) |
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Term
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Definition
| Unless Instrument is explictly clear to create JT, statues will controll ambiguous grants to create TiC (Ambiguous will to 4 children, state statue trumped extrinsic evidence) |
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Term
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Definition
| Partition by sale involves wieghing the interest of all interestholders, partition by sale permitted if the division of the land is impractical or impossible (2 parties owned TiC, partition by sale would force sale of home and end home business) |
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Term
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Definition
| Tenant may collect share of rents and profits from common property if he had been ousted, can recover cost of NECESSARY REPAIRS in court judgement (2 TiC, one kept the other's cows from grazing on the land which prevented party from excercising use rights) |
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Term
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Definition
| (MD Code) All JT requires "property granted is to be held in Joint Tenancy" |
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Term
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Definition
| A valid, properly executed mortgage destroys JT & becomes TiC b/c it transfers title (Mortgage didn't attach, therefore JT still valid/ didn't violate rule against transferability) |
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Term
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Definition
| Tenant's duty to pay rent not conditional on actual enjoyment of the land (English army invaded & T still had to pay rent) |
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Term
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Definition
| Warranty of commercialability does not apply for commercial tenants who use use for bsuienss purposes, parties have to agree or amend terms of the lease which can create contractual guarantees for specific purposes (T who leased land tainted by lead paint, all cows died but not warranty) |
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Term
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Definition
| Impleid warrant of habitability allows residents ability to stay in residence and withold rent till LL corrects issues (DC slum apts) |
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Term
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Definition
| LL has duty to mitigate damages after eviction, all Apts are not uniques and should be displayed equally (Dumped by fiance, can no longer afford rent) |
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Term
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Definition
| NO allowance for force/ violance for self help; JUDICIAL PROCESS Preferred (LL tried to force out bad restaurant through self help, court requires judicial eviction) |
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Term
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Definition
| LL cannot assign or divide own wrong --- Wrongful eviction, including partial eviction, by LL from part of the premises suspents duty to pay rent (Building brick wall blocked a shed and constituted constructed eviction) |
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Term
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Definition
| For Constructive eviction LL must have the power to take action against the offender & fix the issue, but LL FAILS TO FIX PROBLEM (Residential aprt made inhospitable by ground floor club) |
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Term
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Definition
| Security Deposits do not run with the land b/c they are a personal covenant & don not touch & concern the land (Tenant cannot collect SD from subsequent LL, despite terms of K which conveyed intent to run) |
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Term
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Definition
| An assignment transfres all interest, SUBSTANCE OF THE AGREEMENT CONTROLS successor Ts; T that pays LL directly is likely an assignment (go cart operator assigned lease, court disregarded Agreements wording & claim of sublease) |
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Term
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Definition
| (MD Code) A Transfer is ONLY effective if: 1) in writing, 2) signed by transferor |
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Term
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Definition
| (MD Code) transfer term must exceed 1 yr |
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Term
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Definition
| Delivery of the deed must pass/ complete before owners death, deed must leave owners possession before death (no delivery for deed taken out of safety deposit box after transferor's death) |
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Term
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Definition
| Without inconsistency between language of the deed and its effects on the groun parol evidence not allowed; extrinsic evidence is to explain latent ambiguity or identify directional points NOT CONTRADICT THE DEED (deed did not reflect angled street,language of the deed controlled) |
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Term
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Definition
| Warranty of title not automatically breached by encumberance, when encumerance is open and notrious or in chain of title buyer offset this by paying less (GA home subject to flooding b/c Encumberance allowed a dam) |
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Term
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Definition
| Liability for T continues through end of closing (Uninsured building damaged by hailstorm during sale leaseback negotiation) |
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Term
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Definition
| A forged deed and void title and passes nothing (signature on blank piece of paper transferred to deed is FORGERY) |
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Term
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Definition
| (MD Code) every deed must be recorded; doesn't allow inheritance/freeholds or estate more than 7 yrs |
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Term
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Definition
| (MD code) default for uncertain conveyances, these CAN BE RECORDED |
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Term
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Definition
| (MD Code) first in time is first in right, unless subsequent grantee has 1) accepted delivery (in GF w/o notice & given value for purchase ) 2) recorded deed |
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Term
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Definition
| Subsequent purchaser has the burden of proof that 1) no notice of prior transfer, and 2) valuable consideration (subseuent purchase by nephews -- who recorded deed -- not upheld b/c they knew of uncle holding title by not recording) |
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Term
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Definition
| For conditional land sales K the lendor is required to provide specific, clear notice that he will forclose if not paid on time; CANNOT do any actions that constitute waiver(Forfiture overruled despite K language, mortagee missing one of 8 annual payments, proper method is judicial sale) |
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Term
| Murphy v. Finanicial Development Corp |
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Definition
| Lender has FD to minimize the harm to the lender, not determined by actions of the bank but about perverse effects 1) insufficient notice, and 2) improper dealing with 3rd parties(private sale by mortagor in bad faith b/c 1) insufficient notice of sale 2) found buyer willing to give 27K more THAT DAY) |
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Term
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Definition
| Liscence is a right revocable at any time (race track/ private operator allowed to bar entery to tickethold b/c this is a license) |
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Term
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Definition
| Injunctive reflief for negative easement not given interfering with sight/ sound water of own land (hotel cannot get injunction to prevent building that will block sunlight) |
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Term
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Definition
| 1. If use does not serve the easement’s express purpose, it becomes an unauthorized presence, whether or not there is any noticeable burden on the servient estate (Easement for power lines does not allow subsequent cable installation "evoluntionary, not revolutionary changes permitted") |
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Term
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Definition
| licensee spends money to improve the property and licensor is aware of this, license essentially becomes a grant through estoppel (cannot estop easement for ingress/egress travel after building drivaway and house) |
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Term
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Definition
| Reciprocal negative easement - Land deeds with agreements not to take action in order to benefit entire neighborhood are uphold if 1) purchaser had notice and 2) agreement is present in chain of title (neighborhood w/ covenant not to build the garden) |
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Term
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Definition
| Implied negative reciprocal servitudes - buyer has notice of easemen in prior deeds or through universal development plan of the neighborhood/ community (Gas station not allowed in Detroit suburb w/ universal development) |
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Term
| Neoposit Property Owners Association |
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Definition
| 1. promises do not have to directly benefit the land to run, indirect benefits that benefits land run b/c they touch & concern ($4 homeowner fee that benefits entire neighborhood runs with the land) |
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Term
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Definition
| Zoning laws are constitutional (sewage treatment plant not allowed in residential neighborhood) |
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Term
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Definition
| Vague zoning codes that "capture neighborhood feel" are invalid, NOTICE PROBLEM (clear defined zoning laws provide clear notice to all) |
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Term
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Definition
| zoning restrictions of unrelated nonfamily tenants is constitutional |
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Term
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Definition
| Zoning that restricted tenancy to immediate family (didn't allow great stepchild) unconstitutional |
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Term
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Definition
| Racial/ class zoning unconstitutional |
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Term
| Detwieler v. zoning hearing |
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Definition
| Area variance—relax local zoning restrictions to fit the parcel in order to deny the landowner same rights and use as neighboring property owners (variance granted for rectangural lot in zoning law for square lost which required houses have strict dimensional bordered) |
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Term
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Definition
| STATES cannot impair contractual obligations (school charter); FEDS CAN |
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Term
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Definition
| Eminent Domain -- restraiin injurious use of property owner; state authority to enact police regulations includes, but is not limited to, such doctrines as" use your own as not to injure another's property, "and that the legislature has broad authority to exercise this power." (Boston wharf siezed & dock removed under police power) |
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Term
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Definition
| Regulatory taking -- taking is more readily found when the government has physically invaded the property than when interference arises from some public program adjusting the benefits and burdens of economic life to promote the common good(Air development regulating the prohibited building tall skyscraper atop Penn Central NOT A TAKING) |
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Term
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Definition
| Public use --- urban blight/ temporary redovelopment for is permissible public use AS LONG AS THERE IS A PAPERTRAIL to demonstrate good faith & honest belief that taking would benefit the market (Conn takes bad area for use as pfizer, permissible taking) |
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