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.

Land Sales Contracts - Liquidated Damages

A seller is entitled to keep a buyer's deposit as liquidated damages following the buyer's breach of the contract, as long as that deposit was 10% of the sale price or less.

Restrictive Covenants

An agreement included in a deed to real property that the buyer (grantee) will be limited as to the future use of the property.

Example: no fence may be built on the property except of dark wood and not more than six feet high, no tennis court or swimming pool may be constructed within 30 feet of the property line, and no structure can be built within 20 feet of the frontage street.

Commonly these covenants are written so that they can be enforced by the grantor and other owners in the subdivision, so that future owners will be bound by the covenant (called "covenant running with the land" if enforceable against future owners).

All restrictive covenants based on race were declared unconstitutional in 1949 and if they still show on deeds are null and void.

Marketable Title

A seller is required to provide marketable title on the closing date. To be considered marketable, the title must be free of encumbrances, such as mortgages, restrictive covenants and easements. Where the contract does not state that "time is of the essence," then the seller is required to provide marketable title within a reasonable time after the scheduled closing date. If the seller is able to do so, the buyer has no grounds for refusing to perform and the seller may sue for damages or specific performance.

Equitable Servitudes - Creation and Enforcement

An equitable servitude is a covenant that, regardless of whether it runs with the land at law, equity will will enforce against the assignees of the burdened land who have notice of the covenant.

The remedy: injunction against violation of the covenant.

Generally, equitable servitudes are created by covenants contained in a writing that satisfies the Statute of Frauds. Exception: negative equitable servitudes may be implied.

Implied servitudes

Equitable servitudes or negative covenants may be implied where a developer divides land into parcels and some lots contain negative covenants and some do not.

  1. Common scheme (may be evidenced by recorded plat, general pattern of prior restrictions or by oral representations (to early buyers that all lots will be bound)
  2. notice of the covenants:
    • actual notice - direct knowledge of covenants in prior deeds
    • inquiry notice - neighborhood appears to conform to common restrictions
    • record notice - if prior deeds are in grantee's chain of title, he has constructive notice of content

An equitable servitude in a deed is only enforceable where a party can establish:
1) intent for the restriction to be enforceable by subsequent grantees;
2) that the subsequent grantee had notice of the servitude; and
3) the restriction touches and concerns the land.

Benefit runs with land if original parties so intended.

Privity not required