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Tuesday, May 04, 2010 6:12 PM
CONCURRENT OWNERSHIP AND MARIAL PROPERTY • Estates ○ Tenancy in common ○ Joint tenancy Severance □ Lien theory □ Title theory Partition ○ Tenancy by entirety Rights of creditors Partition • Marital property ○ Systems Separate property □ During, divorce, death Community property □ During, divorce, death ○ Educational degrees ○ Premarital agreements ○ Unmarried couples REAL ESTATE TRANSFERS • Purchase contract ○ SOF Equitable estoppel Part performance ○ Standards of title Marketable title Insurable title Record title ○ Equitable conversion ○ Duty to disclose • Closing ○ Deed Types □ General warranty □ Special □ Quitclaim Delivery □ Death escrow □ Rebuttable presumptions ○ Mortgage Lien theory Title theory Intermediate theory Deed of trust Foreclosures □ Judicial
Outline Page 1
□ Judicial □ Non judicial □ Process Deficiency judgment Setting aside sale □ Mortgage priorities Installment land contract ○ Remedies Specific performance Damages Rescission ○ Title assurance Title covenants □ Present Seisin Right to convey Against encumbrances □ Future Warranty Quiet enjoyment Future assurances Title opinion based on public record □ Mechanics of recording Acknowledgement □ Constructive notice □ Forged. fraud. or encumbrance Title unmarketable Insured has no right of access ○ Recording acts First in time BFP □ Jurisdictions Race Notice Race/notice □ Shelter rule Types of notice □ Actual □ Record/constructive □ Inquiry Possession of land From a reference in a recorded document PRIVATE LAND USE PLANNING • Easements ○ Characteristics Appurtenant or in gross Outline Page 2 . invalid acknowledgements □ Improperly indexed Title insurance □ Obligations Duty to defend Duty to indemnify □ Covered risks Title held by someone else Defect. lien.
○ ○ Appurtenant or in gross Affirmative or negative Types Express □ By grant or reservation □ License □ Profit Implied □ Prior existing use □ Necessity □ Prescriptive □ Irrevocable license (by estoppel) Interpretation Manner. intensity Tech change Terminating Abandonment Prescription Estoppel Merger Misuse Release Condemnation use restrictions Real covenants Burden Benefit Remedy .injunction Nuisance Public Private Remedies □ Injunction □ Permanent damages use regulation Judicial review standard Rational basis test Strict scrutiny Nonconforming use Uses □ New Outline Page 3 ○ ○ • Land ○ ○ ○ • Land ○ ○ . frequency.damages Equitable servitudes Burden Benefit Common interest community □ Presumption of validity □ Judicial review Reasonableness standard Business judgment rule (minority) □ Defenses Unreasonableness Abandonment Changed conditions Remedy .
commerce.○ ○ ○ ○ □ New □ Partly built Vested rights □ Existing use Terminating uses □ Destroyed □ Nuisance □ Abandoned (voluntary) □ Eminent domain □ Amortization Escaping zoning ordinance Zoning amendments Spot zoning Variances □ Area □ Use Aesthetic regulation Structures Signs Family zoning Rational basis test when family is defined as by blood Strict scrutiny when family more narrowly defined Growth control Rational basis □ Must be modified to include all of those significantly affected (outsiders) Exclusionary zoning □ Against low income housing □ Some rejected some allowed ENVIRONMENTAL LAW • Waters and wetlands ○ Public trust doctrine Areas included □ Navigable waters and related lands Activities protected □ Fishing. navigation. swimming. hunting etc ○ Clean water act Discharge Pollutant • Land surface ○ CERCLA SL for cleaning up hazardous substances □ Current owner/operator □ Owner/operator at time of disposal □ Who arranged for disposal or treatment □ Transporter of substance Defenses □ Third party □ Innocent buyer ○ Endangered species act Cannot take endangered species □ Harm Includes destroying or modifying habitat • Atmosphere Outline Page 4 .
• Atmosphere ○ Clean air act EPA must regulate air pollutant from a new motor vehicle which causes air pollution which endagers public health or welfare EMINENT DOMAIN • Nor shall private property ○ All possessory estates and other interests may be condemned • Be taken ○ Permanent physical occupation • For public use ○ Rationally related to conceivable public purpose ○ Narrow view ○ Broad view ○ Kelo Private individuals can incidentally benefit as long as primary motivation is for public benefit • Without just compensation ○ FMV ○ No consequential damages TAKINGS • Penn central balancing test • Categorical tests ○ Permanent physical occupation ○ Loss of all economically beneficial or productive use ○ Exaction Essential nexus AND Rough proportionality Outline Page 5 .