Property Law: Week 10 Lecture Notes Covenants and Equitable Servitudes, Real Estate Contracts, Marketable Title, and Disclosures

Covenants running with the land

Unified term for both real covenants and equitable servitudes in modern jurisprudence, allowing for money damages or injunctive relief.

Real Covenant

A promise in a deed requiring privity and touch and concern, traditionally pursued through money damages.

Equitable Servitude

A restriction on property use that does not require privity but depends on the subsequent purchaser's notice.

Tulk v. Moxhay

Landmark case establishing notice requirement for equitable servitudes.

Neponsit Property Owners' Association v. Emigrant Industrial Savings Bank

Case establishing affirmative covenants to pay property maintenance fees 'touch and concern' the property.

Negative Reciprocal Servitude

A restriction that can be enforced even if not explicitly stated in deeds, if the owner had notice of a common development plan.

Sanborn v. MacLean

Case affirming the enforcement of negative reciprocal servitudes when a common plan exists.

Expiration by Limitation

A method of covenant termination where an explicit time limit is stated.

Merger

Covenants can be extinguished when the burdened and benefited properties come under the same ownership.

Release

Formal written agreement by beneficiaries to release the burdened parcel from a covenant.

Acquiescence and Abandonment

When beneficiaries allow widespread violation of covenants, leading to abandonment.

Estoppel

A defense to enforce a covenant that relies on the burdened party's detrimental reliance on a representation of non-enforcement.

Operation of Law & Laches

Terminating a covenant due to delayed enforcement or statutory time limits.

Common Interest Communities

Types of residential developments including condominiums and planned unit developments governed by certain laws.

Davis-Stirling Act

California law governing operational and financial requirements for common interest developments.

CC&Rs

Covenants, conditions, and restrictions that are presumptively valid and enforceable.

Nahrstedt v. Lakeside Village Condominium Association

Case that upheld strict enforcement of CC&Rs banning pets for predictability in community rules.

Business Judgment Rule

Legal doctrine allowing HOA boards to manage communities without court interference unless there is a breach of duty.

Fair Housing Act (FHA)

Federal law prohibiting discriminatory practices in housing, including sexually segregated amenities.

Real Estate Brokers and Agency

Brokers owe fiduciary duty primarily to the seller to maximize sale price.

Open Listing

A real estate listing where multiple agents can sell and only the procuring agent earns a commission.

Exclusive Agency

A listing agreement granting one broker exclusivity but allows the seller to sell without paying a commission.

Exclusive Right to Sell

The broker earns a commission regardless of how the buyer is procured.

Commission Earning

Brokers traditionally earn commissions when they produce a buyer that is ready, willing, and able.

Fixtures vs. Personal Property

Fixtures are permanently attached to real property, while personal property is movable and requires negotiation to include.

Earnest Money

A deposit made by the buyer to demonstrate commitment to purchase a property.

Inspection & Contingencies

Provisions allowing buyers to evaluate property condition and secure financing before purchase.

Time of the Essence

Contract clause emphasizing deadlines and timely performance as material to the contract.

Statute of Frauds

Legal requirement that real estate contracts be in writing, signed, and contain specific terms.

Hickey v. Green

Case establishing detrimental reliance as an exception to the Statute of Frauds.

Part Performance Exception

Allows enforcement of oral contracts if the buyer has taken significant actions like possession or improvements.

Marketable Title

The condition that title must be free of defects and encumbrances at the time of closing.

Lohmeyer v. Bower

Case ruling that violations of zoning laws can render title unmarketable.

Adverse Possession

Title acquired through possession over a statutory period, which is unmarketable until confirmed by a quiet title action.

Doctrine of Equitable Conversion

Treats buyer as equitable owner upon contract execution, transferring risk of loss to buyer before closing.

Caveat Emptor

Traditional doctrine meaning 'let the buyer beware,' implying no duty on the seller to disclose defects.

Stambovsky v. Ackley

Case exempting sellers from caveat emptor for undisclosed psychological defects affecting property value.

Johnson v. Davis

Case imposing a modern duty on sellers to disclose material defects not readily observable.