Thursday, April 24, 2008

Adverse Possession

To obtain land through adverse possession, a party must for the length of the statutory period:
1) have actual physical possession or occupancy of the land;
2) maintain that possession continuously and without interruption;
3) exclude others from possession;
4) have "hostile" possession (be there without permission); and
5) maintain "open and notorious" possession.

Easements - Creation

Express Grant
Must be in writing and signed by holder of servient ten. unless <1 year (typically) to be outside SOF.

Express Reservation
G conveys but reserves right to continue using for special purpose

Easement implied if:

  • Prior to division of single tract,
  • An apparent and continuous use exists on servient part,
  • That is reasonably necessary for enjoyment of dominant part, and
  • Parties intended the use to continue after division of the land.

Easements implied without existing use
  • Subdivision Plat - Plat map shows streets leading to lots: buyers have implied easements to use the streets.
  • Profit a pendre

Easement by necessity
Landowner sells portion of tract, depriving one lot of access to road/utility. Servient parcel owner may locate the easement.


Think: adverse possession
  • Open and notorious
  • Adverse (w/o permission)
  • Continuous and uninterrupted
  • Statutory period

Wednesday, April 23, 2008

RP Outline

VI. Conveyancing
A. Land Sales Contracts
1. Statute of Frauds
(a) Doctrine of Part Performance
2. Doctrine of Equitable Conversion
3. Marketable Title
4. Time of Performance
5. Tender of Performance
6. Remedies for Breach
7. Seller's Liability for Defects
8. Brokers

Covenants that Run with the Land


Easements - In General

An easement is a right to use another's land but without the right to possess or enjoy the land. Presumed to be of perpetual duration.

Affirmative v. Negative
Most are affirmative (right to make use of another's land). Negative easements (which compel possessor of servient tenement to refrain) are only for: light, air, lateral and subjacent support and flow of artificial stream.

Easement Appurtenant
Benefits easement holder in his physical use/enjoyment of another's land. Need 2 tracts: the dominant and the subservient. Benefit passes with dominant land -- regardless of mention in conveyance. Burden also passes with subservient land, unless BFP without notice.

Easement in Gross
Right to use servient tenement without possessing land. Example: PG&E has easement in gross to install utility poles. Transferrable if for economic use, not if for personal use.

See also:
Easements - Creation
Easements - Termination

Tuesday, April 22, 2008

Doctine of Equitable Conversion

Once a contract is signed and each party is entitled to specific performance, equity regards the buyer as the owner of the real property. The seller's interest - the right to the proceeds of sale - is personal property. Seller has bare legal title and thus right of possession until closing.

Risk of Loss

If property is destroyed before closing, risk of loss is on buyer. (Majority rule.) Or: risk of loss on seller unless buyer has legal title or possession at time of destruction. (Uniform Risk Act.)
Insurance: It's unjust enrichment for seller to receive insurance payment and recover purchase price from buyer. Buyer credited for insurance payment.


Deceased seller's interest passes as personal property; buyer's interest passes as real property.