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210 Cards in this Set

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Present Estates: Fee Simple Absolute formation language and estate characteristics
formation language: "to A"
- absolute ownership of potentially infinite duration
- freely devisable (passable by will)
- descendible (pass by statutes of intestacy)
- alienable (transferable during holder's lifetime)
- no future interest; can endure forever
Present Estates: Fee Tail formation language and estate characteristics
formation language: " to A and the heirs of his body"
- pass directly to lineal blood descendent no matter what (virtually abolished in US)
- today, this probably creates a fee simple absolute
-Future interest in O = reversion; future interest in someone else=remainder
Present Estates: Defeasible Fee General principles
- mere words of hope/intention are insufficient to create defeasible fee
- courts will not find defeasible fee absent clear durational language
- an absolute restraint on alienation is void; must have reasonable time limit and purpose
Defeasible Fees: Fee Simple Determinable formation language & characteristics
formation: "to A for so long as" or "to A during" or "to A until"
- devisable (pass by will)
- descendible (pass by intestacy law)
- alienable (transferable during holder's lifetime)
- always subject to the condition future interest
- possibility of reverter FSDPOR
Which estate? "To A" or "To A and his heirs"
fee simple absolute
Which estate? "To A and the heirs of his body"
fee tail
Which estate? " To A so long as" or "To A until"
Fee Simple Determinable (FSDPOR)
Which estate? "To A but if X event happens, grantor reserves the right to reenter and retake"
Fee Simple subject to condition subsequent
Which estate? "To A but if X event occurs, then to B"
Fee simple subject to an executory limitation
Which estate? "To A for life" or "To A for the life of B"
life estate
Defeasible Fee: Fee Simple subject to condition subsequent language & characteristics
"to A but if X event occurs, grantor reserves right to reenter and retake"

- devisable, alienable, descendible
- NOT automatically terminated but can be cut short if condition occurs
future interests:
- right of reentry synonymous w/ power of termination
Defeasible Fee: Fee Simple subject to executory limitation language & characteristics
"to A but if X event occurs then to B"
- alienable, devisable, descendible
- automatic forfeiture upon broken condition future interest:
- shifting executory interest
Life Estate
"to A for life" or "To A for life of B"
- must be measured in explicit life time terms and never years

- devisable, descendible, alienable
- entitled to ordinary use and profit from land
- must not commit waste (must maintain the property)

future interests:
- reversion in grantor; if held by 3rd party, it's a remainder
3 Types of Waste
voluntary/affirmative: overt conduct that causes drop in value (willful acts of destruction natural resources: must not consume or exploit on property unless an exception applies
*prior use (but no new mines)
* reasonable repair
* granted right expressly
* exploitation (only suitable use)

- permissive waste/neglect: land is allowed to fall into disrepair or there is pattern of neglect
-ameliorative waste: acts that will enhance property value absent consent from all future interests
Life estate measured by a life other than grantee’s
Life estate pur autre vie
Future Interest Retained by Grantor
- possibility of reverter (only fee simple determinable)
- right of entry (only fee simple subject to condition subsequent)
- reversion (arises where grantor transfers a lesser estate than she starts with; other than fee simple dterm or fee simple subject to condition subseq)
Future Interest Retained by a Transferee: Remainder
- remainder: future interest created by a grantee that is capable of becoming possessory upon NATURAL expiration of preceding estate (e.g. life estate)
- always accompanies preceding estate w/known fixed duration (so never defeasible fees)
Future Interests Retained by Transferee: Contingent Remainders
created in unascertained person OR subject to condition precedent or both
- unascertained: unborn or living person's heirs
What is the rule of destructibility of contingent remainders?
Contingent remainder was destroyed if still contingent when previous estate ended, e.g O conveys to A for life and if B has reached age of 21 to B. If A died before B turned 21, B’s contingent remainder would be destroyed and it would go to O in fee simple absolute

NOT THE RULE NOW. NOW, if A dies before B turns 21, goes to O or O’s heirs subject to B’s SPRINGING EXECUTORY INTEREST
What is the rule in shelley’s case?
Conveying to A for life, then to A’s heirs merged into a fee simple absolute
*RULE OF LAW (grantor’s intent didn’t control)

NOW, virtually abolished. This would now be A with life estate, A’s heirs as contingent remainder & O as reversion since A could die without heirs
What is the doctrine of worthier title?
Aka rule against remainder in grantor’s heirs. O conveys “To A for life, then to O’s heirs”
*RULE OF CONSTRUCTION (grantor intent controlled)

Doct of worthier title=A has life estate; O has reversion
MA does NOT have doctrine of worthier title so result would be A has life estate; O’s heirs have contingent remainder.
Future Interest Retained by a Transferee: Vested Remainders, generally
- created in ascertained person and NO CONDITION PRECEDENT
- 3 types
* indefeasibly vested remainder
* vested remainder subject to complete defeasance
* vested remainder subject to open
Future Interests Retained by Transferee:

Vested Remainder: Indefeasibly vested remainder
- holder of this remainder is certain to acquire estate in future with NO STRINGS attached

"to A for life, remainder B" where if B predeceases A, B interest passes by will
Future Interests Retained by Transferee:

Vested Remainder Subject to Complete Defeasance
- taking not subject to condition precedent but right to possession could be cut short because of CONDITION SUBSEQUENT

e.g. “To A for life, remainder to B, provided however, that if B dies under the age of 25, to C” A is alive. B is 20.
A has life estate; B has vested remainder subject to complete defeasance
C has shifting executor interest. O has a reversion because possible that C/C’s heirs won’t be around if B dies before age 25.

- if conditional language appears before language creating remainder, it is condition precedent e.g. “To A for life, and if B has reached age of 25, to B”
Here A has life estate; B has contingent remainder (subj to condition precedent); O has reversion. If A dies and B is <25, O gets it “subject to B’s springing executory interest”
Future Interests Retained by Transferee:

Vested Remainder Subject to Open
- remainder is vested in a group of takers at least one of whom is qualified to take
- each class member's share is subject to partial diminution bc addn'l takers can still join
- class has closed whenever any member can demand possession
- womb rule: child of B in the womb at A's death will become member of class
Future Interest Generally Defined
remainder: future interest that accompanies a preceding estate w/known fixed duration
* vested remainder: created in ascertained person and no condition precedent
* contingent: unascertained or condition precedent
*executory interest: future interest that cuts short interest of another person *springing: cuts short grantor or his heirs
*shifting: cuts short someone else
What does B have? “To A and her heirs, but if B returns from Canada sometime next year, to B and his heirs.”
B has shifting executory interest
What do A & B have? “To A, but if A uses the land for nonresidential purposes at any time during the next 20 years, to B”
B has shifting executory interest
A has fee simple subject to B’s shifting executory interest
What do A and O have? “To A, if and when he marries.” A is unmarried.
A has a springing executory interest
O has a fee simple subject to A’s springing executory interest
What do A & O have? “To A, if and when he becomes a lawyer”
A has springing executory interest
O has fee simple subject to A’s springing executory interest
*not a RAP violation bec we will know by end of A’s life
Rule Against Perpetuities: the rule
- certain kinds of future interest are void if there is ANY possibility that the given interest may vest more than 21 years after death of measuring life

Rule Against Perpetuity: what does it potentially apply to
- C: contingent remainder
- E: executory interests
- O: certain vested remainders subject to Open
Rule Against Perpetuity does not apply to what:
- any future interest in O, the grantor
- indefeasibly vested remainder
- vested remainders subject to complete defeasance
Rule Against Perpetuity Questions to Ask
- What conditions precedent to vesting of suspect future interest
- Find Measuring Life
- Will we know w/certainty within 21 years of the death of measuring life if future interest holders can take?
Rule Against Perpetuity 2 bright line rules
- a gift to an open class that is conditioned on members surviving to an age beyond 21 violates RAP
- many shifting executory interests violate RAP, particularly those w/no limit on the time w/n which it must vest
BUT charity to charity exception
What do the parties have? O conveys “To A for life, then to the first of her children to reach the age of 30.” A is 70, her only child B is 29.
This is a violation of RAP despite how improbable it would be that B would die tomorrow and A would have another child, then promptly die (before he was 9)

So, A has a life estate and B has NOTHING. O has a reversion
What do the parties have? “To A and his heirs so long as the land is used for farming, and if land ceases to be so used, to B and his heirs.”
A has a fee simple determinable
O has a possibility of reverter
B has nothing because the executory interest violates RAP
What do the parties have? “To A and his heirs, but if the land ceases to be used for farm purposes, to B and his heirs”
Because B’s executory interest violates RAP
And structure of conditional clause “but if…” means we can’t make a grammatically correct sentence with the condition at all
What do the parties have? “To the American Red Cross, so long as the premises are used for Red Cross purposes, and if they cease to be so used, then to the YMCA”
Red cross has fee simple subject to YMCA’s shifting executory interest
YMCA has shifting executory interest

Rule Against Perpetuity Reform: Wait & See Doctrine
- validity of any suspect future interest is determined on basis of the facts as they now exist at the END of measuring life
What is Uniform Statutory Rule Against Perpetuities (USRAP)?
Codifies common law RAP and provides for an ALTERNATIVE 90 year vesting period
Both “wait & see” and USRAP embrace what other two doctrines?
-reduction of any offensive age contingency to 21 years
-cy pres doctrine (“as near as possible”) if a disposition violates the rule, ct may reform in a way that most closely matches grantor’s intent while complying with RAP
Joint Tenancy: Definition & Characteristics
- 2 or more own w/right of survivorship
- right of survivorship: on death, share goes automatically to survivor
- alienable but NOT devisable or descendible
Joint Tenancy: Creation
Title-same instrument
Identical shares
Possession of whole

- DISFAVORED, so grantor must clearly express right of survivorship
- use of strawman to convey if it violates T-TIP
How can a joint tenancy be terminated?
-Sale (sale of interest during lifetime severs even without others knowledge/consent, in equity even entering into contract to sale)
-Partition (voluntary, partition in kind, or forced sale)
-Mortgage (if TITLE theory of mortgage like MA; does NOT sever where state follows a lien theory of mortgage)
Joint Tenancy: Unilateral Severance & Sale
severance and sale:
JT can sell or transfer her interest during her lifetime w/o the knowledge and consent of other JT
* one tenant severs the JT as to seller's interest-->buyer becomes tenant in common
* if more than 2 JT, JT remains intact as between the other non-transferring tenants
Joint Tenancy: Severance and Partition SPaM
- by voluntary agreement
- partition in kind: court action for physical division
- forced sale: court action to sell land, divide proceeds proportionally if w/n best interest of all parties
Joint Tenancy: Severance and Mortgage SPaM
- minority: if one JT executes mortgage or lien on his share, this severs JT as to that now encumbered share (MASS RULE=Title theory)
- majority: JT execution of mortgage on his interest does not sever JT (lien theory)
Tenancy by the Entirety: Definition & characteristics
-tenancy between married partners with right of survivorship
-in most states that recognize, arises presumptively, but NOT IN MA – requires clear statement, otherwise = tenancy in common
-creditors of only one spouse can’t touch tenancy & no unilateral transfer to a 3rd party
In MA: may encumber debtor spouse’s share but cant touch other spouse’s share or defeat right of survivorship
Tenancy in Common: Definition & Characteristics
- 2 or more own w/no right of survivorship
- each co-tenant owns an individual part and has a right to possess the whole - each interest is descendible, devisable and alienable

Tenancy in Common: Rights & Duties of Co-Tenants
- if one co-tenant wrongfully excludes another CT from possession, he has committed wrongful ouster
- absent ouster, one CT is not liable to other CT for rent
- CT who leases all or part of premises must account to other CT and share any rent
- absent ouster, one CT in exclusive possession for statutory adverse possession period may not acquire title to exclusion of others
-each co-tenant responsible for his/her fair share of carrying costs (taxes, mortgage interest, reasonable & necessary repairs) on his or her undivided share
-NO rt to contribution for “improvements” (though improver gets credit/liability for any improvements at partition)
-no CT can commit waste
-Like JTs, CTs can bring actions for partition
Tenancy in Common: Rights & Duties of Co-Tenants: Care & Fees
- carrying costs: each CT is responsible for his fair share of carrying costs based on individual share (taxes, interest payments)
- repairing CT enjoys right of contribution for necessary repairs, provide she told other CT of need
- no right of contribution for improvements during life of co-tenancy
* at partition, improving CT is entitled to receive a credit equal to any increase in value
* improving CT also bears full liability for any drop in value
- CT must not commit waste (voluntary, permissive, ameliorative)
Landlord-Tenant Law: Tenancy for Years: Duration & Termination
duration: lease for fixed period of time (termination date known)
* if greater than 1 year, must be in writing

termination: no notice required, date stated at onset
Landlord-Tenant Law: Periodic Tenancy: Duration
- lease continues for successive intervals til L or T give proper notice to terminate - can be created expressly - or by implication:
* land is leased w/no mention of duration but provision is made for payment at set intervals
* an oral term of years (not ok under S/F), measured by way rent is tendered
* holdover in residential lease that is accepted by L, measured by way rent is tendered
Landlord-Tenant Law: Periodic Tenancy Termination
- requires notice, usually written, at least equal to length of period itself unless otherwise agreed
- must end at conclusion of natural lease period

e.g. wk-to-wk = 1 wk; month-to-month = 1 month
EXCEPT year to year or greater, req 6 mos.
Landlord-Tenant Law: Tenancy at Will Duration
- tenancy for no fixed duration
- unless parties expressly agree to tenancy at will, regular payment creates implied periodic tenancy
Landlord-Tenant Law: Tenancy at Will: Termination
- may be terminated by either party at any time w/reasonable demand to vacate typically needed
Landlord-Tenant Law: Tenancy at Sufferance
- created when T has wrongfully heldover past expiration of lease - lasts only until either L evicts or decides to hold T to a new tenancy
Tenant Duties: T Liability to 3rd Parties
- T is responsible for keeping the premises in reasonably good repair
- T is liable for injuries sustained to 3rd party guests, even if L promised to make all repairs ( T may seek indemnification from L)
Tenant Duties: T Duty to Repair when lease is silent
standard: maintain premises and make ordinary repair
- T must not commit waste(voluntary, permissive, ameliorative), incl removal of fixtures which constitute permissive waste

* fixture is a once moveable chattel that by virtue of its annexation to property, objectively shows an intent to permanently improve realty (heating system, custom storm windows)
* fixtures typically pass w/ownership of land but any express agreements will control
What is the rule of fixtures?
Tenant cannot remove “fixtures” even if she installed them. Constitutes voluntary waste.

* fixture is a once moveable chattel that by virtue of its annexation to property, OBJECTIVELY shows an intent to permanently improve realty (heating system, custom storm windows)
* fixtures typically pass w/ownership of land but any express agreements will control

How to tell if fixture:
If no agreement, T may remove chattel that she has installed so long as REMOVAL DOES NOT CAUSE SUBSTANTIAL HARM to the premises
Tenant Duties: T Duty to Repair express covenant in lease by T
- historically, T liable for any loss even force of nature
-now maj view= T off the hook & T may terminate lease when destruction is not T's fault
Tenant Duties: T Duty to Pay Rent Breach while in Possession
L can:
- evict through courts: still entitled to rent from T until T vacates (T becomes tenant in sufferance)
- continue relationship & sue for rent

- self help is NOT AN OPTION and will result in civil and criminal liability (changing locks, removing property)
-In MA, landlord engaging in self help = treble damages or 3 mos rent plus attys fees
Tenant Duties: T Duty to Pay Rent Breaches and is out of Possession
L Can (SIR)
S- surrender: choose to treat T abandonment as surrender
* T has shown by words or actions that she wants to give up lease
* if unexpired term is greater than 1 year, surrender must be in writing
I- Ignore abandonment and hold T responsible for upaid rent (only avail in minority of states)
R- Relet premises on T behalf and hold him liable for any deficiency
* L must try to mitigate
Landlord Duties: Duty to Delivery Possession
Majority (English) rule : L puts T into physical possession of premises
* if at start of lease, prior tenant is still in possession, L has breached
Minority (Amer) rule: requires only transfer of legal possession
Landlord Duties: Implied Covenant of Quiet Enjoyment
-applies to residential & commercial
- T has right to quiet use & enjoyment of premises w/o interference from L
Landlord Duties: Implied Covenant of Quiet Enjoyment; elements of Breach by Constructive Eviction
Constructive Eviction = SING
- substantial interference due to L action or failure to act
- Notice: T must give L notice of problem and L must fail to respond meaningfully
- Goodbye: T must vacate w/n reas time after L fails to fix problem
Landlord Duties: Implied Covenant of Quiet Enjoyment Acts of Other Tenants
- L generally not liable, except:
* L must not permit a nuisance
* L must control common areas
Landlord Duties: Implied Warranty of Habitability (non-waivable)
std: premises must be fit for basic human dwelling
T entitlement when warranty is breached = MR3
* move out and terminate lease
* repair and deduct from future rent
* reduce or withhold all rent until court determines fair rental value (must place w/h rent in escrow)
*remain in possession, pay rent and affirmatively seek money damages
Landlord Duties: Retaliatory Eviction
- if T lawfully reports L for housing code violations, L is barred from penalizing T

IN MA, presumption of retaliation if eviction w/in 6 mo of T’s complaint
Assignment & Sublease: General
- T may freely transfer his interest in whole (assignment) or in part (sublease) absent some prohibition in lease
- once L consents to one transfer by T, L waives right to object to future transfers unless L expressly reserves that right
Assignments & Subleases the assignment and privity
- L & T2 are in privity of estate (liable to each other for all the covenants in the orig lease that run w/land)
- L & T2 are not in privity of contract (unless T2 assumed all promises)
- L and T1 are no longer in privity of estate but remain in privity of contract (L and T1 are secondarily liable to each other)
- L can always proceed against direct wrongdoer and against T1
Assignments & Subleases the sublease and privity
- L and T2 are neither in privity of contract nor privity of estate
- T2 is responsible to T1 and vice versa
- original relationship between L and T1 remains
L duty to make premises safe
Caveat Lessee: Let Tenant Beware L duty to make premises safe
L under no duty to make premises safe, except: (CLAPS)
- common areas must be maintained
- latent defects: L must WARN T of hidden defects that L knows about or should know about (duty to warn, not repair)
- assumption of repair: L who voluntarily makes repairs must complete them w/reas care
- public use rule: L who leases public space is liable for any defects on the premises where L should know bc of nature of defect and length of lease that T will not repair
- short term lease of furnished dwelling: L is liable for any defect on site which proximately injures T
Servitudes: Easements: Defined
- grant of non-possessory interest that entitles holder to some form of use or enjoyment of another's land
Servitudes: Easements Affirmative or Negative
- most are affirmative: right to do something on land
- negative easements entitle holder to prevent servient landowner from doing something that would otherwise be permissible: [LASS]
* light
* air
* support
* stream water from artificial flow (some states add scenic view)

- neg easements can only be created EXPRESSLY and in WRITING signed by grantor
Servitudes: Easements Appurtenant to land or held in gross
- appurtenant: benefits holder in his physical use or enjoyment of property
* takes 2 parcels of land: dominant tenement derives benefit and servient tenement bears burden

- easement in gross confers upon holder only some personal or pecuniary advantage not related to use or enjoyment of land
* only takes 1 parcel
* common ex: right swim in another's pond, right to lay power cord on another's land
Servitudes: Easements Transferability
- appurtenant easements pass automatically w/dominant tenement, regardless of whether it's mentioned in conveyance

- burden of easement appurtenant also passes automatically w/servient estate (unless new owner is BFP w/o notice)

- easement in gross does not transfer unless it is for commercial purposes
Servitudes: Easements Creation of Affirmative Easements
* prescription: easement acquired by satisfying elements of adverse possession (COAH=continuous use, open & notorious, actual use, hostile)
* implication: previous use was apparent and parties expected use to survive division bc it is reasonably necessary for use and enjoyment of land
* necessity: landlocked setting [Mass req. STRICT necessity]
* grant IN WRITING (statute of frauds; deed of easement)
Servitude: Easements Termination
- Estoppel: servient owner materially changes his position in reas reliance on easement holder's assurances that easement will no longer be enforced
- Necessity ends unless created by express grant
- Destruction of servient land, other than through willful conduct of owner
- Condemnation, as in eminent domain
- Release by easement holder to servient owner
- Abandonment: easement owner demonstrates by phys action an intent never to use easement again (mere non-use or words insufficient)
- Merger: easement extinguished if title to easement and title to servient land become vested in same person; does not automatically revive upon separation
- Prescription: servient owner extinguish by interfering w/it in accordance with adverse possession elements (COAH-continuous, open & notorious, actual & hostile to easement holder)
Servitudes: Licenses Define/Characteristics
- mere privilege to enter another's land for some delineated purpose
-NOT subject to statute of frauds; look for license where ORAL grant of easement (not ok under S/F) but creates a license
- freely revocable at will of licensor absent estoppel claim
* estoppel bars revocation only when licensee has invested substantial money and/or labor in reasonable reliance on continuation of license
Servitudes: Profit
- entitles holder to enter servient land and take from it the soil and substance - shares all rules of easement
Servitudes: the Covenant define
- promise to do or not do something related to land
- unlike easement because it is not a grant of property interest, only a contractual limitation or promise
- if P is seeking money damages: covenant; injunction: equitable estoppels

Can be negative (restrictive covenants, e.g. promise not to paint house pink) or affirmative (e.g. promise to paint the fence)
Servitudes: Covenants does covenant run with land (burden and benefit) elements necessary for BURDEN to run
WITHN for burden to run
- Writing: orig promise must have been in writing
- Intent of orig parties for burden to run
- Touch & concern land: promise affects parties legal relations as land owners
- horizontal and vertical privity (both for BURDEN)
* horizontal: nexus bn orig A and B; requires succession of estate (difficult to meet)
* vertical: nexus bn A and A-1; requires some non-hostile agreement (VP only absent if A-1 acquired interest via AP)
- Notice by A-1 of promise when she took
Servitudes: Covenants does covenant run with land (burden & benefit) elements necessary for BENEFIT to run
- writing
- intent
- touch & concern
- vertical privity only (non hostile nexus between B and B1)
Equitable Servitudes: define and creation
- promise that equity will enforce against successors; remedy of injunctive relief
creation: WITNES
- writing
- intent of orig parties
- touch & concern land
- notice by assignee of burdened land of promise
Equitable Servitude!
Equitable Servitude: implied equitable servitude general or common scheme doctrine
- when sales began, subdivider had a general scheme of residential development which incl D lot or
- D lotholder had notice of promise contained in prior deed NOTICE=AIR
* actual
* inquiry
* record (inquiry and record are constructive notice)
Equitable Servitudes: Equitable Defenses to Enforcement changed conditions
- changed circumstances allowed by party seeking release must be so pervasive that entire area has changed
- mere pockets of limited change not good enough
Adverse Possession: Elements
- Continuous: uninterrupted for statutory period (20 years in MA)
- Open & Notorious: sort of possession that owner would make under circumstances (ie subletting)
- Actual: entry must be literal
- Hostile: does not have true owner's permission

Subjective State of Mind=irrelevant
Adverse Possession: Tacking
- one AP may tack on to his time w/the land his predecessor's time, so long as there is privity (any non-hostile nexus = blood, contract, deed, will)
- not allowed when there has been ouster as ouster defeats privity
Adverse Possession: Disabilities
- SoL will not run against a true owner who is afflicted by a disability at the INCEPTION of the AP (insanity, infancy imprisonment)
-doesn’t matter if disability happened part way through thoug
Land Conveyance of Real Estate: The Land Contract:

What requirements?
- contract must be in writing, signed by party to be bound
- must describe blackacre and include consideration
- if land recited is more than actual size of parcel, purchaser is entitled to SPECIFIC PERFORMANCE or pro-rata reduction in purchase price
Land Conveyance of Real Estate Land Contract:

Doctrine of Partial Performance
- equity decrees specific performance on an oral contract for sale of land where (2 of 3 met):
* B takes possession of blackacre
* B pays all or part of purchase price
* B makes substantial improvements
MA requires ALL THREE of these
Land Conveyance of Real Estate Land Contract:

Risk of Loss
- once contract is signed, B owns land subject to the condn that he pays purchase price at closing
- if in the interim (bn contract and closing), Blackacre is destroyed thru no fault of either party, B bears the risk of loss unless K says otherwise
What promises are implied in land contracts?
1-marketable title
2-no false statements of material fact
Land Conveyance: Real Estate Land Contract:

Implied Promise of Marketable Title
- seller promises to provide marketable title at closing
* free from reas doubt (litigation/lawsuit)
* free of adverse possession, even a part (must provide good record)
* free of encumbrances unless buyer has waived them (viol of bldg codes dont count; zoning violations do)
- seller may also satisfy at closing
Land Conveyance: Real Estate Land Contract:

Implied Promise of Truth
- seller promises not to make any false statement of material fact
majority: seller liable for failure to disclose latent material defects & material lies & omissions
-general disclaimers of liability do not excuse liability for fraud or failure to disclose
Land Conveyance: Real Estate Land Contract:

Implied Warranty of Fitness or Habitability
- land contract contains no implied warranties of fitness or habitability

exception: - implied warranty of fitness and workmanlike construction applies to the sale of a new home by a builder vendor
Land Conveyance: Real Estate Closing/Deed:

Lawful Execution Requirement
- the deed becomes the operative document and legal title passes from seller to buyer, upon lawful execution and delivery
lawful execution:
- in writing, signed by grantor but MBE-no consideration necessary; MA-deeds can’t be recorded unless recite consideration
- descr of land need only be MBE-“unambiguous, and a good lead”; MA-must be “adequately described”
Land Conveyance: Real Estate Closing/Deed:

Delivery Requirement
title passes from seller to buyer upon lawful execution and delivery

delivery: - satisfied when grantor physically transfers deed to grantee
* permissible to mail, use an agent or messanger
* does not req. actual phys transfer of deed itself
* test is solely one of present intent
- recipients express rejection of deed defeats delivery
- oral conditions gen will drop out
- delivery by escrow is OK and once condns are met, title passes automatically

IN MA, recording a lawful deed properly is CONCLUSIVE evidence of delivery
Land Conveyance: Real Estate Closing: Types of Deed:

IN MA, called “Release Deed”
- contains no covenant
- grantor isnt even promising he has title to convey
- does implicitly promise to provide marketable title at closing
Land Conveyance: Real Estate Closing: Types of Deed:

General Warranty Deed
- warrants against all defects in title, incl those due to grantor's predecessor
- contains 6 covenants (3 present, 3 future)
* covenant of seisin (owns estate)
* covenant of right to convey
* covenant against encumbrances
* covenant for quiet enjoyment
* covenant of warranty to defend grantee against lawful claims of title
* covenant for future assurances (do whatever needed to protect flawed title)
Land Conveyance: Real Estate Closing: Types of Deed:

Statutory Special Warranty
grantor makes 2 promises and only on behalf of himself:
- has not conveyed Blackacre to anyone other than grantee
- blackacre is free from encumbrances made by grantor
What kind of recording statute does MA have?
NOTICE jurisdiction; i.e. if O conveys to A, then to B, B would win if BFP regardless of whether she records before A
Recording System notice statutes and who wins if O conveys to A then B?
IF O conveys to A then to B
- if B is a BFP in race notice jdxn, B wins regardless of whether or not he records before A
- if B is a BFP in race-notice jdxn, B wins if he records before A
- in either jurisdiction, B status as subsequent BFP will be defeated if A had promptly and properly recorded before B takes
Recording System: Recording Act

Who is a bonafide purchaser?
- purchases Blackacre for value (only substantial pecuniary consideration required, bargains ok) - without notice that someone else got there first *actual, inquiry or record notice
Recording Act: BFP: Notice three types
- actual notice
- inquiry: B is on notice of whatever an exam of blackacre would show bc buyer has duty to inspect before transfer of title **MASS Doesn’t recognize inquiry notice
- record: whatever deeds are properly recorded in chain of title
Example language-Notice statute & race notice statute
Notice “a conveyance of an interest in land shall not be valid against any subsequent purchaser for value, without notice thereof, unless the conveyance is recorded”

Race Notice: “ any conveyance of an interest in land shall not be valid against any subsequent purchaser for value, without notice thereof, whose conveyance is first recorded.”
Recording Statutes: Chain of Title Problems: Shelter Rule
- one who takes from a BFP will prevail against any entity that the transferor or BFP would have prevailed against
Recording Statutes: Chain of Title Problems: Wild Deed
- deed entered on the records w/ grantor unconnected to chain of title
- INCAPABLE of giving record notice
Estoppel by Deed
One who conveys realty in which he has no interest is stopped from denying validity of that conveyance if he later acquires the previously transferred interest
Mortgages: Define
- conveyance of security interest in land intended by parties to be collateral for repayment of debt
Mortgages: Equitable Mortgage
- where Blackacre is collateral for debt, O gives creditor deed to Blackacre that is absolute, rather than executing a note or mortgage deed

- if creditor then proceeds to sell blackacre to BFP, BFP will own land and debtor only recourse is to proceed against creditor for fraud and recover sale proceeds
Mortgages: Party Rights
- unless and until foreclosure, debtor has right to possess realty
- creditor has lien ( right to look to blackacre in event of default)
Mortgages: Transferability of Interest: Creditor and Holders in Due Course
creditor can transfer by:
1-endorsing note and delivering to transferee who becomes holder in due course. To be holder in due course of note:
* note must be negotiable and made payable to named creditor
* original note must be endorsed, signed by named creditor
* original note must be delivered to transferee and taken in good faith w/o notice of illegality

2-executing a separate doc of assignment
Mortgages: Holder in Due Course; which defenses is mortgage subject to?
Only REAL defenses; not personal defenses=lack of consideration; fraud in inducement, unconscionability, waiver, estoppels
Mortgages: Holder in Due Course subject to real defenses; what are they?
- material alteration
- duress
- fraud in factum
- incapacity
- illegality
- infancy
- insolvency
Mortgage: Transferability: Debtor Rights on Mortgaged Land
- if debtor sells, lien remains on land so long as mortgage has been properly recorded (later buyer subject to lien)
- if buyer has ASSUMED the mortgage, both debtor and buyer are personally liable, with buyer as primarily liable
- if buyer takes "subject to mortgage" buyer assumes no personal liability and only debtor is liable
*however, if debtor doesnt pay, mortgage can be foreclosed
Diff between assuming mortgage and taking subject to mortgage
- if buyer has ASSUMED the mortgage, both debtor and buyer are personally liable, with buyer as primarily liable
- if buyer takes "subject to mortgage" buyer assumes no personal liability and only debtor is liable
*but if debtor doesn’t pay, mortgage can be foreclosed
Mortgage: Foreclosure: Modification of Existing Lien
- where landowner enters into modification agreement w/senior creditor that makes mortgage more burdensome, junior mortgage is given priority over the modification
Mortgage Foreclosure: Impact on Various Creditor Interest
- jr. lienholders will be paid in descending order w/proceeds from sale, assuming funds are leftover after full satisfaction of superior claims
- jr lienholders not satisfied can proceed w/a deficiency judgment against debtor but not Blackacre
- if a necessary party is not joined, his interest remains on the land
Mortgage: Foreclosure: Impact on Buyer
- buyer is not personally liable on senior debt but if senior mortgage is not paid, creditor will foreclose land
- buyer has incentive to pay off lien
- purchase price is usually fair market value minus amount to discharge mortgage
Mortgage: Foreclosure: Redemption in Equity
- at any time prior to foreclosure sale, debtor has right to redeem land and free it of the mortgage
* exercised by paying what is due plus interest and costs
* universally recognized prior to sale
Mortgage: Foreclosure: Statutory Redemption
- recognized in about 1/2 states (not MA)
- gives debtor a statutory right to redeem for some fixed period after foreclosure sale has occurred
- amount to be paid is only the foreclosure sale price
- when debtor redeems, undoes foreclosure, title regained
Lateral Support
- if land is improved by buildings and an adjacent landowner's excavation causes that land to cave in, excavator only liable if negligent
- strict liability attaches where P can show improvements on his land did not contribute to land's collapse (would have collapsed in natural state)
Water Rights: Riparian Doctrine
- water belongs to those who own the land bordering water course (riparians)
- share right of reasonable use of water and cannot unreasonable interfere w/use of others
Water Rights: Prior Appropriation Doctrine
- water belongs initially to state but right to divert it and use it can be acquired by individual
- rights determined by priority of beneficial use
* norm is first in time, first in right
* any productive or beneficial use incl agriculture is sufficient
Water Rights: Ground Water
- water beneath surface of earth that is not confined to a known channel
- surface owner is entitled to make reas use of groundwater but not waste
Water Rights: Surface Water & Common Enemy Rule
- comes from rain, springs, melting snow
- landowner may change drainage or make any other change on his land to combat the flow of surface water but many courts have modified “common enemy rule” to prohibit unnecessary harm to others’ land
Possessor Rights: Trespass
- invasion of land by tangible physical object
- removal by action for ejectment
Possessor Rights: Private Nuisance
- substantial and unreas interference w/anothers use & enjoyment of land
- no tangible phys invasion required
- no sympathy for hypersensitive P
Eminent Domain
- govnt power to take private property for public use in exchange for just compensation
- can be explicit or implicit/regulatory
-remedy for regulatory taking = compensation or terminate reg & pay owner damages that occurred while in effect
Zoning & Variance Requests
pursuant to police powers, govnt may enact statutes to reas control land use
- citizens can request variance by showing
* undue hardship
* grant of variance will not work detriment to surrounding property value
Zoning & Non-Conforming Use
- a once lawful existing use now deemed nonconforming by new zoning ordinances cannot be eliminated all at once absent just compensation.
-otherwise = unconstitutional taking
Zoning & Exactions
- exactions are those amenities sought by govnt in exchange for granting permission to build
- to be constitutional, exaction must be: reasonably related in nature and scope to impact of proposed development
Does the fee tail exist in MA?
Yes – but the entail may be destroyed by conveying a fee simple interest in the property rather than the life interest that the grantor, strictly speaking, owns. (Contrary to Mick Jagger rule)
What special things happen with a fee simple determinable and a fee simple subject to a condition subsequent?
If the specified contingency does not occur w/in 30 years from the date the defeasible fee becomes possessory, these turn into fee simple absolutes. If you don’t get home by midnight, your property will turn into a pumpkin!
Tell me about Dower and Curtesy in MA?
Option of 1/3 LE of all real property owned by spouse at death - filed w/in 6 mo of death. “Tenancy by dower.” Instead of election or will
What is the status of the Rule Against Perpetuities in MA?
MA has adopted the USRAP under which nonvested property interests…are invalid unless the satisfy traditional RAP or actually vest or terminate w/in 90 years after creation
How is a tenancy by the entirety created in MA?
Creation of a TBE requires an express statement that a TBE is being created. Creation of a joint tenancy also requires express language.
Thus, a conveyance to a husband and wife w/o other language creates a tenancy in common.
Can a spouse encumber his/her part of a tenancy by the entirety without destroying the tenancy in MA? How will it interact with the other spouse’s interest?
Spouse can encumber w/o permission of other Tenant.

But survivor takes free of interest.
Can a creditor seize property held by the TBE in MA?
Creditor can attach, not seize if spouse occupies.

Both spouses jointly/severally liable for necessities
What are periodic tenancies called in MA? How are they created
Tenancy at will; oral lease creates tenancy at will
How are tenancies at will terminated?
Either party w/ 3 mo written notice or equal to interval if less than 3 mo. periods Or 30 days notice period less than a month.
Can you summarize how tenancies are terminated?
TAW > 3 month rental period = 3 month notice
TAW < 3 month rental period = notice equal to rental period
TAW < 30 day period = 30 days notice
T For Years = terminate at term
What happens when someone refuses to pay rent?
1. Terminate w/ 14 days written notice unless
2. rent tendered w/in 10 days of receiving notice AND
3. No other notices in past year Tenancy can be terminated by 14 days notice to quit in writing, in the form prescribed by statute, unless tenant tenders full amount of rent due w/in 10 days of receipt thereof and has not received another notice w/in 12 months next preceding receipt of such notice.
What about holdover tenants in MA can I change the locks? Can I bring an action for trespass?
evicted only through judicial, summary process and not through an action for ejectment or trespass.
I’m renting a room in a boarding house. How can the landlord evict me here?
7 days notice if: 1. Rent is payable weekly/daily AND 2. Damaging unit/creating nuisance, or substantially interfering w/ comfort/safety/enjoyment of landlord/occupants
The landlord evicted me without process, what can I get from him?
Triple damages or 3 months rent, plus atty’s fees.
Can the landlord change the locks if I’m running a brothel out of my house?
Since 1995, self-help evictions are no longer permitted when the T’s use of the premises constitutes a public nuisance b/c of its use for prostitution, assignation, lewdness, illegal gambling, or the drug/alcohol running. Instead, the owner may seek to expeditiously recover possession of the premises.
I’m over 60 and/or handicapped and about to be evicted. Can I get some relief from the court?
The court can stay the execution of eviction of a handicapped person or > 60 person for up to 12 months.
How do we determine whether it’s a lease or a license?
Intent and control Look to intent.
To determine whether a tenancy is created in situations where a buyer occupies early, an employee is supplied accommodations, or a tenant shares the premises w/ a roommate not on the lease, the courts look to the extent the occupant had control of the premises.
What recording requirements are there for leases?
Record leases over 7 years OR Aren't valid except against Grantor, heirs, devisees, and actual notice
Can I have a provision in the lease that terminates it if the tenant has children?
These are generally void.
1. 2 or 3-family + elderly/infirm + hardship
2. Temp leasing in owner-occupied
3. Owner-occupied 2-family
Can my lease say that I waive my right to jury trial?
No-void against public policy
Can my landlord put a provision in the lease that he can stop by and come in the place whenever he wants?
No – lease may not allow lessor to enter premises except to inspect, repair, or sow to prospective tenants. CAN enter the property if it appears to be abandoned or to inspect w/in the last 30 days of lease period.
When can a residential tenant withhold rent?
Where landlord breaches implied warranty of habitability
1. When a violation of minimum standards of human habitation
2. Advance notice of withholding rent given to landlord
3. conditions may endanger health/safety of tenants. VNE (Violation, Notice, Endanger)
When can a commercial tenant withhold rent?
Never If they do have a right to withhold rent, it’s not for a violation of the warranty of fitness or habitability.
My neighbor’s selling crack in the hallway between our apartments, are my warranties breached?
Illegality in common areas. Breaches warranty of quiet enjoyment Does not breach warranty of habitability
When is there a presumption that an eviction is retaliatory?
If the eviction is w/in 6 months of a tenant complaint or valid withholding of rent.
When can a landlord be held liable in tort?
Landlord for RESIDENTIAL property liable for any unsafe condition not caused by tenant where he has written notice
What is a landlord’s responsibility for lead paint?
Whenever a child < 6 lives in any premises containing lead paint or other lead-containing structural materials, the owner must contain or remove the lead and failure =strict liability for damages to child resulting from lead.
What can a lessor charge as an initial fee for an apartment?
First and last month's rent Security Deposit = one months rent Key/lock fee
What can happen to a landlord who fails to do what landlords are required to do? What things are good for getting these sanctions?
Fine or imprisonment for: 1. Intentional failure to provide essentials (heat, light, etc.) 2. Attempting self-help eviction 3. Willful interference w/ quiet enjoyment EISE (Essentials, Interference, Self-help Eviction)
My residential lease says the landlord doesn't have to provide heat. Okay?
No - obligations to provide essential cannot be waived in a lease
What happens when a public road is abandoned?
No private easement unless facts support it under necessity, prescription, grant.
I've got a private way into my land and I've recorded my rights in that way. What additional does that allow me to do?
Put utilities on and through that way as long as don't obstruct or interfere w/ existing use.
Have the hippies imposed their way on restrictive covenants?
Yes. Covenants to prevent solar power and Covenants to prevent community residences for disabled people Both VOID
What happens to conditions that are perpetual?
End in 30 years unless charitable or rerecorded unless they predate 1887.
Can I get an equitable servitude from a common scheme?
No - SOF is strictly applied in MA so no equitable servitudes from common schemes where not in that person’s lease.
Who can enforce a restriction?
Only someone who would get an actual and substantial benefit from the restriction
Adverse possession period?
20 years; but does not apply to actions by nonprofit orgs to recover land for conservation, parks, recreation or wildlife/water protection
What happens if I leave the property I'm adversely possessing for a few weeks?
No AP! Continuous use is strictly interpreted - 3 weeks is enough to kill an AP
What land can I not adversely possess?
Registered land
How do I AP wild or woodland?
Enclose and reduce it to cultivation
My neighbor’s roof crosses into the air above my property by ½ centimeter, can I make him redo his roof?
No; though a landowner general entitled to equitable relief for an encroachment on his property, MA recognizes narrow exception where (i) encroachment is DE MINIMIS, (ii) D acted in good faith and (iii) cost to D of removing encroachment is grossly disproportionate to the benefit conferred by removal. Here you can only get damages.
Who has the risk of loss after sale of real property but before delivery?
The party in possession. NO EQUITABLE CONVERSION of title. Exception only if damages are minimal - buyer must still buy and get damages in equity
What must a deed contain in MA?
Full Name, Residence and Post Office Address of Grantee
Recital of consideration, Adequate description of property

GCP (Grantee, Consideration, Property)
If any missing - conveyance void.
What weight do I give to the various ways of describing property?
1. Monuments 2. Courses 3. Distances
Plan beats all
I bought a property that abuts a wall. What do I own of the wall?
The fee the grantor had in the wall, unless he has land on the other side of it or he reserves it. After 1972 - this applies to any land abutting a way, watercourse, wall, fence or other monument.
What does recording do in MA?
It is CONCLUSIVE EVIDENCE of delivery of the deed.
What do I need to know about the types of deeds in MA?
The warranty deed carries the same guarantees as warranty deed in other jurisdictions. The Special Warranty Deed is called a quitclaim in MA. The Quitclaim is called a release deed.
What type of registration system does MA follow?
What is registration?
An alternate way of recording your land.
What is the purpose of registration?
1. Impregnable title 2. Permanent/complete record of exact status of title w/ all liens etc. 3. Protects against all claims not on the book

Ipod PC U (Impregnable, Permanent/Complete record, Unrecorded claims void)
Ipod PC U
How does one register land?
1. File petition w/ Land court 2. Court-ordered examiner researchs title 3. notice given to interested parties 4. Hearing
What does registration do to liens that aren't listed on the certificate of title?
It kills them!
Are defects in the deed cured by time? How long?
They're cured once the deeds are on record for 10 years unless proceeding begun about defect.
What water rights?
Riparian doctrine, but great ponds (>= 10 acres) are availabe for use by the general public, not just riparian landowners.
How does MA control surface water?
Reasonable use theory
What do oceanfront properties own?
Down to the low water mark subject to public's right to hunt, fish, fowl and navigate b/w the high water mark and low water mark.
What is MA’s statutory redemption law?
There is no statutory right of redemption after foreclosure sale.
How do I create a condo?
Record a master deed at the registry of deeds. 1. Intent to condo 2. Describe land 3. Describe bldg. # of units, each unit % of ownership, 4. Method of amendment 5. Name management entity I Down Loaded Dan Brown's Album Manager (Intent, Describe Land, Describe Building, Amendment, Management)
I Down Loaded Dan Brown's Album Manager
What happens if condo fees are unpaid?
Super priority lien on condo for up to 6 months of fees - takes priority over everything but fed tax liens.
Can condo members partition?
Yes - condo members own common areas as TIC. Partition if 75% of condo members agree
What is homestead?
Recorded w/ registry - protects against various stuff

One home occupied as principal residence can be recorded as estate of homestead w/ registry of deeds. Makes it exempt from various stuff - conveyance, descent, devise, attachment, levy on execution, sale ofr payment of debts, etc.
How is a homestead terminated
Either: 1. a deed from the owners 2. Release recorded at registry
What can an elderly person do w/ homesteads?
62+ or disabled can acquire an estate of homestead up to $500k. If more than one of above in household, each entitled to $500k protection.
What must a landlord do at the beginning of a lease when there's a security deposit?
Written statement of conditions w/in 10 days tenancy.
What must a landlord do with the security deposit during the tenancy?
Hold it (and last month's rent) in a separate bank account and pay interest on it.
What must happen at the end of a lease with the security deposit?
Returned w/in 30 days after termination of the lease unless validly retained by LL
There's a dangerous condition, the landlord knows about it. I want to withhold rent. Do I have to give him notice?
No - if owner knew about condition, no notice required. Provided knowledge before rent stoppage and conditions not fixed
What precautions can court take in a rent withholding case?
Court can order: 1. Rent paid into court OR 2. appoint receiver to take care of rent and remedy condition.
I've got a condition that lasted 45 years, it's been 30 years. What do I do now? How long will it last?
Rerecord The condition will last 15 more year. Rerecorded conditions last 20 years or to the end of the condition, whichever is shorter.
How can a written lease be terminated for nonpayment of rent?
1. 14 days written notice 2. Unless rent, interest, costs tendered before answer due in action to recover possession.
What are the damages for retaliatory eviction?
If threats or reprisals, damages 1-3 mo. rent OR actual damages, whichever greater, and costs of suit + atty fees.
Can you waive in the lease your right to avoid retaliatory eviction?
No, this is void.
Besides reporting a violation, is there any other thing covered by the prohibition on retaliatory eviction?
Applies to joining a tenant’s union as well as for reporting code violations.
The tort liability of a landlord for conditions he knew about and didn't fix, does this apply to commercial leases?
The tort liability of a landlord for conditions he knew about and didn't fix, can the tenant waive that in his lease?
No, waiver is void.