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Pick the area the applies to the fact situation and apply the appropriate checklist. I. Land Acquisition: In issue whenever two or more people are claiming ownership of the same parcel. a. Adverse Possession i. Did the adverse possessor occupy the land in an open and notorious fashion? ii. Did the adverse possessor have the necessary hostile intent? iii. Was the adverse possessor on the land for the appropriate period? iv. Was the true owner under a disability at the time of the adverse possessor’s entry? v. Are there any problems with the scope of the possession or the rights of the parties? b. Land Sale Contract i. Pre-closing issues 1. Has a valid contract to sell land been formed? 2. If a loss to the property occurred after the contract was formed, who bears the risk of loss? 3. Are there any issues of marketable title? ii. Post-closing issues 1. What is the effect of the merger doctrine? 2. What type of deed was issued? 3. If a warranty deed was issued, is there a violation of a covenant of title? iii. Conveyancing 1. Was a valid deed issued? 2. Was the deed delivered to the grantee? 3. Did the grantor exhibit an intent to deliver? 4. What presumption regarding delivery should apply? a. If this was an escrow situation: b. Were there any conditions attached to the delivery c. What is the effect of the relation back doctrine? d. Does the estoppel theory apply? e. Does the common law presumption (“first in time is first in right”) apply? iv. Recording act 1. What type of recording act is involved? 2. Is the claimant protected by the recording act? 3. Is the transaction covered by the recording act? 4. Can the subsequent claimant satisfy the requirements of the recording act? v. Security Interests 1. What type of security interest is involved? 2. What are the rights and priorities of the parties? 3. What is the effect of any transfer of interest? Land Use: In issue whenever a party is claiming the right to use another’s land or dictate how the land is to be used. a. Easements
Was an easement created by implication? 3. Was there a destruction of the servient estate? 5. Does the restriction touch and concern the dominant and servient estates? ii. c. Is the covenant intended to run with the land?* 1. f. Does the restriction burden the servient estate? iii. Is the easement in gross? 3. e. How does a license differ from an easement? iii. Have the current land owners taken their estates with notice of the restriction? 2. i. Is the easement appurtenant? 2. Definition ii. Does the restriction benefit the dominant estate? iv. Was the restriction part of a common scheme or plan? . What is the remedy available for breach of the equitable servitude? Implied Reciprocal Servitude i. Is the license revocable or irrevocable? Covenants i. Was there a merger of the dominant and servient estates? 2.b. Was there an easement by implied grant or reservation? 4. Are there any limitations of what the owner of the servient estate can do with the land? iii. Does the restriction benefit the dominant estate? iv. Was an easement created expressly? 2. Did the easement holder abandon the easement? 4. Definition ii. Creation 1. How does a profit differ from an easement? Licenses: i. Was there an easement created by necessity? 5. Is there vertical privity? v. Termination 1. Does the restriction touch and concern the dominant and servient estates? ii. d. Has the easement been terminated by the actions of the owner of the servient estate? Profits: i. Does the restriction burden the servient estate? iii. Is there horizontal privity? b. Have the current land owners taken their estates with notice of the restriction? vi. Are there any limitations on the use of the easement? 4. Was an easement created by prescription? ii. Was there a sale of the servient estate to a bona fide purchaser? 6. What is the remedy available for breach of the covenant? Equitable Servitude i. Does privity exist? a. Scope 1. Is the restriction intended to run with the land? * v. Was there a severance of the easement from the dominant estate? 3.
Is there a prohibition on transfers contained in the lease? Estates & Future Interests: Issue is present possessory (present interest) interest in land or possessory in the future (future interest). Was it a fee simple on condition subsequent? 5. Was it a fee simple defeasible? 3. Is this a periodic tenancy? iii. Can the tenant remove the improvements upon leaving the premises? b. Was the grantee given a life estate? 1.ii. What type of tenancy is involved? i. a. Is this a tenancy by will? iv. Has the tenant committed waste? a. How much rent is owed? ii. . Is this a tenancy at sufferance? b. Did the current owner of the servient estate take with notice of the restriction? III. Is the transferee an assignee? c. a. Can the landlord use force to retake premises? 2. a. Does the tenant have any defenses to the payment of rent? 1. Is the transferee in privity with the landlord? b. Was there a surrender of the premises? 4. Was it a fee simple absolute? 2. Did the landlord fail to deliver possession? 2. Is the transferee a sub-lessee? d. A. Transfer by landlord: Who is entitled to rent due? 2. Landlord-Tenant: Issue involves rights and responsibilities from a property relationship between a landlord and tenant. SEE “LANDLORD TENANT DETAILS” iv. Is the landlord seeking to retake possession from the tenant? 1. Was it a fee tail? ii. Transfer by tenant. Was it a fee simple determinable? 4. Present possessory estates. Does the trade fixtures doctrine apply? v. i. Is this a tenancy for years? ii. Who is the measuring life? IV. Was the grantee given a fee estate? 1. Is there a duty to repair the premises? 2. Was the tenant evicted from the premises? 3. Was it a fee simple subject to an executory limitation? 6. Is there a problem with the condition of the premises? 1. Has the tenant improved the premises? a. Has the landlord followed statutory requirements to retake the premises? 3. Does the tenant owe rent? i. Has either the landlord or tenant transferred their interests in the premises? 1. Were the premises destroyed? 5. Are there any applicable warranties or contract defenses? iii.
What are the rights and duties of the cotenants? 1. Was it the right of entry/power of termination? ii. Special rules. Was it subject to a condition subsequent? c. Is the interest covered by the rule? 2. Was it absolutely vested? b. Was it a remainder? 1. Was the grantee given a limited term estate? b. Was it subject to open? 2. Concurrent estates. Is there a right to share in profits produced by the estate? 3. Is there an exception? c. Is there a valid restraint on alienation? iii. Was it an executory interest? iv. Was it a reversion? 1.2. Was it a vested remainder? a. Is the life estate defeasible? iii. Future estates. has the interest been severed? ii. Has the grantee committed waste? ii. Was it a possibility of reverter? 2. Is there an obligation to pay for improvements to the estate? . If possible. Was the future interest initially created in the grantor? 1. Does the rule against perpetuities apply? 1. i. Was a tenancy by the entireties properly created? a. Was a concurrent estate properly created? 1. Was a tenancy in common properly created? 3. Was the future interest initially created in the grantee? 1. Is there a right to possession of the estate? 2. i. Are there any restrictions on the transferability of such an interest? iii. i. Was a joint tenancy created? 2. Who is liable for the expenses of operating the estate? 4. Was it a contingent remainder? a.
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