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Prudent_Jurist

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Real Property Woes

Post by Prudent_Jurist » Thu Jan 13, 2022 9:22 am

First time taker sitting for February in CA. Curious if anyone has any suggestions or tips and tricks for real property. Specifically, I’m having issues internalizing all of the different present possessory estates, present and future interests, and rules re: covenants/equitable servitudes in such a way that the facts (essay or MBE) trigger the rules. Other stuff like mortgages and landlord-tenant is fine.

I’m using Barbri and have AdaptiBar for added practice. Every other subject so far I’ve clicked with enough to do well on practice sets, but property seems to be my Achilles heel.

germlegal

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Re: Real Property Woes

Post by germlegal » Fri Jan 14, 2022 3:08 pm

Specifically, I’m having issues internalizing all of the different present possessory estates, present and future interests, and rules re: covenants/equitable servitudes in such a way that the facts (essay or MBE) trigger the rules. Other stuff like mortgages and landlord-tenant is fine.
Flushing out the material here may be helpful. I'm not an expert or Prof, so correct my statements as needed. So there are present possessory interests, which are of course different from future interests which may or may not vest (become possessory) down the road.

Fee Simple ("to A" or "to A and her heirs" or any language saying FSA) This is ALL of the land. It's basically the best thing you can get. Yeah you know this.
Fee Simple Determinable (To A for so long as, while, during, etc... So long as the status quo continues - if things stay the way they are now - the recipient continues to have possession. It's important to characterize this FSD properly, because if the status quo ceases to exist - title automatically reverts to the Grantor. This is called the possibility of reverter. If you have a FSD, the possibility of reverter is always paired with the FSD.
Fee Simple Subject to Condition Subsequent The language here are things like "but if X happens." If some event occurs in the future, the Grantor will obtain the power of termination (i.e. right of re-entry). The key here is that the right of re-entry must be exercised by the Grantor; it is NOT automatic like the possibility of reverter above. (This can make a difference in adverse possession cases, where it's important to determine who has title at what time.) Also be on the lookout for RAP problems with this type of conveyance, because the condition (for example: "if an Independent is ever elected as President, then to A's heirs") could be something that might not happen within 21 years of the conveyance.

Those are really the main possessory interests. An executory interest is one held by some 3rd party. For example, this is a FSD subject to executory interest: To A so long as A continues to do community service, but if A stops doing community service, then to B. You can see that B has an executory interest.

Future Interests...they can be sure to vest (indefeasible) or capable of being destroyed (defeasible).

Vested remainder: To A for life, then to B. B has a vested remainder in fee simple absolute. A will certainly die at some point, so B is sure to take!
Contingent remainder: To A, but if A dies before B, then to B. There's a possibility that B will never get anything, his future interest is contingent on surviving A.

Which other types of present/future interests do you want to discuss?

germlegal

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Re: Real Property Woes

Post by germlegal » Fri Jan 14, 2022 3:43 pm

covenants/equitable servitudes in such a way that the facts (essay or MBE) trigger the rules. Other stuff like mortgages and landlord-tenant is fine

Covenant is in writing and pertains to the land. Typically there is some type of agreement between neighbors, grantor-grantee. The land is transferred to some other party who violates the covenant. This is the general fact pattern that triggers covenants/equitable servitudes.

ES allows injunctive relief. Covenant is money damages. I think you can argue for either one, depending on which remedy is sought. Remember the common development scheme - that almost always involves a negative equitable servitude. A successor is bound to the restriction b/c he should have noticed that all of the parcels in the development are subject to a restriction (they are all one-story, they are all residential single family homes, they all have a lawn in front, etc...)

In order for a successor in interest to be bound by the burden imposed by a restrictive covenant (e.g. you cannot park a car in your driveway, you cannot grow a tree higher than 10 feet), these criteria must be met. I use the pneumonic "WITHN" which stands for Writing, Intent, Touch and Concern, Horizontal & Vertical privity, Notice.

Writing - the covenant must be in writing
Intent - the contracting parties must have intended that the burden be imposed on successors in interest, as evidenced by the written covenant
Touch and Concern - the covenant must affect the property owner's use and enjoyment of the land in some way
Horizontal privity - the covenanting parties must have had a relationship such as Grantor-Grantee or Landlord-Tenant, and the covenant was contained in their agreement.
Vertical Privity - there was a voluntary transfer of the land from the original owner to the successor in interest (i.e. not by adverse possession)
Notice - the burdened party must have had notice of the covenant

For the benefit to run, "WITV" is all that's required. Horizontal privity is NOT required for the benefit to run. Often times, horizontal privity will be lacking such that a covenant burden will not be found, but you can still argue for an equitable servitude (injunctive relief) which does not require horizontal privity.

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