Attack

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, invalid acknowledgements
□ Improperly indexed
 Title insurance
□ Obligations
 Duty to defend
 Duty to indemnify
□ Covered risks
 Title held by someone else
 Defect, lien, 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
 ○
 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, frequency, intensity
 Tech change
○ Terminating
 Abandonment
 Prescription
 Estoppel
 Merger
 Misuse
 Release
 Condemnation
• Land use restrictions
○ Real covenants
 Burden
 Benefit
 Remedy - 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 - injunction
○ Nuisance
 Public
 Private
 Remedies
□ Injunction
□ Permanent damages
• Land use regulation
○ Judicial review standard
 Rational basis test
 Strict scrutiny
○ Nonconforming use
 Uses
□ New

Outline Page 3
 
□ 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, commerce, 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