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171 Cards in this Set

  • Front
  • Back
What does devisable mean?
it can pass by will
what does descendible mean?
it will pass by the statutes of intestacy if its holder dies intestate (without a will)
what does alienable mean?
is it transferable inter vivos (aka during the holder’s lifetime)
What is “to A” or “to A and his heirs”?
Fee simple absolute
“To A for so long as…” ; “To A during…” ; “To A until… “ (durational language) - what is it?
Fee Simple Determinable
“To A, but if X event occurs, grantor reserves the right to re-enter and retake.” - what is this?
Fee Simple Subject to Condition Subsequent
When must grantor must use clear durational language AND carve out the right to re-enter?
Fee Simple Subject to Condition Subsequent
The estate is NOT automatically terminated but it can be cut short AT THE GRANTOR’S OPTION, if the stated condition occurs - what is it?
Fee Simple Subject to Condition Subsequent
“To A, but if X event occurs, then to B” - what is it?
Fee Simple Subject to Executory Limitation
This estate is just like the fee simple determinable only now if the condition is broken, the estate is automatically forfeited in favor or someone other than grantor (a 3rd party) - what is it?
Fee Simple Subject to Executory Limitation
This is an estate that must be measured in explicit lifetime terms and NEVER in terms of years
the life estate
If O conveys "to A for life" - what does O have?
O has a reversion
A life estate measured by a life other than the grantee’s is called what?
The life estate pur autre vie
key thing to remember with life estates!
life tenant’s entitlements are rooted in the important doctrine of WASTE

1. The life tenant is entitled to all ordinary uses and profits from the land
2. The life tenant must NOT commit waste, meaning she must not to anything to harm the future interest holders
what is voluntary or affirmative waste?
overt conduct that causes a drop in value (aka willful destruction)

* life tenant must not consume or exploit natural resources on the property (timber, oil, or minerals)

Exceptions - PURGE
i. Prior Use: prior to the grant, the land was used for exploitation. Thus, life tenant may continue to do so (unless otherwise agreed).
1. Open Mines Doctrine: if mining was done on the land before the life estate began: the life tenant may continue to mine, but is limited to the mines already open. Thus the life tenant may not open any new mines.

ii. Repair - The life tenant may consume natural resources for repairs and maintenance.

iii. Granted - life tenant may exploit if expressly granted the right

iv. Exploitation - meaning the land is suitable only to exploit
what are the 3 types of waste?
1 - voluntary / affirmative
2 - permissive / neglect
3 - ameliorative (to improve) waste
what is ameliorative waste?
no unilateral action allowed

The life tenant must not engage in acts that will enhance the property’s value, UNLESS all future interest holders are known and consent
what is the Life Estate’s Accompanying Future Interest?
If held by O, the grantor, it is called a reversion. If held by a third party, it is a remainder.
when does the possibility of reverter apply?
It accompanies only the fee simple determinable
when does a reversion apply?
A reversion in the future interest arises in a grantor who transfers an estate of lesser quantum than she started with, other than a fee simple determinable or a fee simply subject to condition subsequent
when does a right of entry apply?
It accompanies only the fee simple subject to condition subsequent
when is there a remainderman?
Remainderman always accompanies a preceding estate of KNOWN FIXED DURATION. That preceding estate is usually a life estate or a term of years
“To A for life, then to those children of B who survive A.”
children of B have a contingent remainder
“To A for life, if B graduates from college, to B.” A is alive. B is now in high school. Before B can take, he must graduate from college. He hasn’t yet satisfied this condition precedent.

What does each have?
1. B therefore has a contingent remainder

2. O has a reversion (if B never graduates, O or O’s heirs take)

3. If B graduates from college during A’s lifetime, B’s contingent remainder is transformed automatically into an indefeasibly vested remainder
What happens if O conveys “to A for life, then to A’s heirs” and what rule is this?
i. A has a life estate
ii. A’s as yet unknown heirs have a contingent remainder
iii. O has a reversion, since A could die without heirs

* Shelley's rule
What is the doctrine of worthier title?
- This doctrine is still viable in most states today. It applies when O, who is alive, tries to create a future interest.
Example - O, who is alive, conveys, “To A for life, then to O’s heirs”

The contingent remainder in O’s heirs is void. Thus, A has a life estate and O has a reversion.

NOTE: abolished in MA!
O, who is alive, conveys, “To A for life, then to O’s heirs”

What does each have?
The contingent remainder in O’s heirs is void. Thus, A has a life estate and O has a reversion.

* b/c of the doctrine of worthier title
O conveys “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 years old.

what does each have?
a. A has a life estate

b. B has a vested remainder subject to complete defeasance

c. C has a shifting executory interest

d. If B is under 25 at the time of A’s death B still takes

e. However, B must live to 25 for his estate to retain his interest. Otherwise, B heirs lose it all, and C or C’s heirs take.

f. O has a reversion because it’s possible that neither C nor C’s heirs will exist if and when the condition is breached.
“To A for life, then to B’s children.” A is alive and B has two kids – C & D.

What do C and D have?
C & D have vested remainders subject to open
“to A for life, remainder to B.” A is alive. B is alive.

What does each have?
A has a life estate; B has an indefeasibly vested remainder
When is a remainder vested?
if it is both created in an ascertained person and is not subject to any condition precedent
what does it mean when someone has a indefensibly vested remainder?
holder of this is certain to acquire an estate in the future with no conditions (no strings attached)
“to A and her heirs, but if B returns from Canada sometime next year, to B and his heirs”

what do each have?
A has a fee simple subject to B’s shifting executory interest
"to A, but if A uses the land for nonresidential purposes at any time during the next 20 yrs, then to B.”

what do each have?
A has a fee simple subject to B’s shifting executory interest
“to A, if and when he marries.” A is unmarried thus has a springing interest.

what do each have?
A is unmarried thus has a springing interest. O has a fee simple subject to A’s springing executory interest.
“to A and his heirs so long as the land is used for farm purposes, and if the land ceases to be so used, to B and his heirs”

is there a RAP violation? how do you fix it?
yes!

the condition may not be breached, if ever, until hundreds of years have passed. Thus VOID.


How to fix: “to A and his heirs so long as the land is used for farm purposes” - Because RAP won’t apply to future interests in O.
O conveys property "to A for life, and one year after A's death to B"

what does each have?
A - life estate
O - reversion
B - springing executory interest in fee simple
What does is the "cry pres" doctrine?
part of RAP reform

“as near as possible” doctrine - If given disposition violates the rule, a court may reform (redraft) it in a way that most closely matches grantor’s intent while still complying with the RAP
What is T-TIP?
1. Joint Tenants must take their interests
a. T: at the same TIME
b. T: by the same TITLE (in the same instrument)
c. I: with identical INTERESTS (shared) and
d. P: the right to POSSESS the whole
What must the grantor give in a joint tenancy and why?
must CLEARLY express the right of survivorship because they are disfavored (allow them to avoid probate)
How do you sever a joint tenancy? - SPAM!
i. Severance and Sale

ii. Severance and Partition (3 types - agreement, court action, or forced sale)

iii. Severance and Mortgage (lien theory v. title theory)
What is the minority rule for severance and mortgage?
Minority Rule: Title Theory [APPLIES IN MASSACHUSETTS] -

One joint tenant’s execution of a mortgage or a lien on his or her share WILL SEVER the joint tenancy as to that now encumbered share ONLY in the minority of states to follow the title theory of mortgages
What is the majority rule for severance and mortgage?
Lien Theory

A joint tenant’s execution of a mortgage on his interest will NOT sever the joint tenancy
When does a tenancy by the entirety arise?
i. MS - It arises presumptively in any conveyance to married partners unless clearly stated otherwise

ii. MA Distinction - Creation by a tenancy in the entirety requires an EXPRESS statement of such
1. “to A and B by tenants in the entirety”
2. Without doing this in MA, to married partners without more creates a tenancy in common
what happens if a joint tenant sells or transfers her interest during her lifetime (even w/o the consent/knowledge of others)?
disrupts TTIP, and turns the NEW buyer into a tenant in common.

Others remain joint tenants.
Can creditors touch tenancy by the entirety?
MS - can't touch it

MA - may encumber that spouses share BUT they can’t touch the others’ share. They can’t defeat the right of survivorship.
Are unilateral conveyances allowed in tenancys by the entirety?
No - Can’t touch/defeat right of survivorship
If there's joint tenants - A and B, and a bank has a lien on the half belonging to B. What happens with B dies?
A becomes sole owner and the property is NOT subject to the lien.
What is the rule regarding improvements between co-tenants?
NO right to contribution for “improvements”

i. However, at partition, the improving co-tenant is entitled to a credit, equal to any increase in value cause by her efforts
ii. At partition, the “improved” bears full liability for any drop in value cause by her efforts
What is a tenancy for years?
(also known as the Estate for Years or the Term of Years)

i. Lease for a FIXED period of time (ie 2 days, 2 mths, or 50 yrs)
ii. Because you know the termination from the start – NO NOTICE is needed to terminate
iii. If lease is greater than one year: must be in writing per SOF
What is a periodic tenancy?
lease which continues for SUCESSIVE intervals until L or T give proper notice to terminate
“to T from month to month” or “year to year” or “week to week”

what is this called?
period tenancy
What is the holdover rule under periodic tenancies?
If L elects to hold over a T who has wrongfully stayed on past the conclusion of the original lease measured by the way rent is now tendered (ie after year lease ends, T pays monthly)
How do you terminate a periodic tenancy?
1. Notice must be given (usually written) – must be equal to the periodic length (unless otherwise agreed)

a. Exception: if tenancy is year-to-year, must give 6 months notice
If L started leasing on Jan. 1st and on May 15th T sends written notice, when is T bound until?
June 30th
What is a tenancy at will?
A lease of no fixed duration
“for as long as T or as long as L or T desires” - what type of lease?
tenancy at will
The payment of regular rent will make the court create what type of tenancy?
Unless the parties expressly agree to a tenancy at will, the payment of regular rent will cause a court to treat this as an implied periodic tenancy
how can a tenancy at will be terminated?
may be terminated by either party at any time but a reasonable demand to vacate is typically needed
how is a tenancy at sufferance created?
when T has wrongly held over past the expiration of the lease
why are tenancies at sufferance created?
to permit L to recover rent
How is a tenancy at sufferance terminated?
L evicts T OR
L decides to hold T to a new tenancy
What is T's liability for injuries sustained by 3rd parties invited?
T is liable, even where L promised to make all repairs.
What is T's duty to repair when T has expressly covenanted in the lease to maintain the property in good condition for the duration of the lease?
1. At common law (HISTORICALLY) - T was liable for any loss to the property, including loss due to force of nature (even acts of god)

2. Today, majority view - T may terminate the lease if the premises are destroyed without T’s fault
What is the L's options if T breaches the duty to pay rent?
only options are to evict through the courts OR

continue the relationship and sue for rent due
If the L moves to evict - what's L's responsibility?
L is STILL entitled to rent from the T until the T, who is now a T at sufferance, vacates
if T vacates with time left on the lease what can L do?
1 - accept the surrender
2 - ignore the abandonment and hold T responsible for the rent
3 - re-let the premises
(majority rule is there must be mitigation)
What is L's duty to deliver possession?
i. Majority/English Rule - Requires that L put T in actual possession of the premises

ii. Minority /American Rule - Does not oblige L to provide physically possession. Only LEGAL possession (ex: keys)
What is the implied covenant of quiet enjoyment?
1. Applies to both residential and commercial leases

2. T has a right to quiet use and enjoyment of the premises without interference from L
What must a tenant do if the landlord is in breach of the implied covenant of quiet enjoyment by constructive eviction?
SI-N-G

a. Substantial Interference - Due to L’s actions or failures to act (chronic problem, not necessarily perm)

b. Notice - T must notify L of the problem and L must fail to act meaningfully

c. Goodbye (get out) - T must vacate within a reasonable period after L fails to fix the problem
Is landlord liable for acts of other tenants?
Generally no but two exceptions:

1. L must not permit a nuisance on site (ex: if L’s other T upstairs is dancing everyday)

2. L must control common areas (stairsway, hallway)
What is the implied warrant of habitability?
Premises must be fit for basic human dwelling. Bare living requirements must be met. NOT luxury!
T’s entitlements when the implied warrant of habitability is breached?
MRRR

1. M: Move out and end the lease (but they don’t have to)

2. R: Make reasonable repairs and deduct their cost from future rent (allowable by statute in a growing numbers of Js)

3. R: Reduce rent or withhold all rent until the court determines fair rental value

4. R: Remain in possession, pay rent, and then affirmatively seek money damages
Once L consents to a T that he can transfer initially (under sublease or assignment) - what happens?
L waives the right to object to future transfers by that T, unless L reserves the right
In a sublease, what privity relationships are there?
L and sublessee are in neither privity of estate nor privity of contract

They are NO nexus. If all you have is a sublease, T2 is liable to T1 and visa versa
What is the common law of caveat lessee?
T should beware in tort. L had no duty to make the premises safe.
What are the exceptions to T being liable for all injuries that occur on the property?
CLAPS

C: Common Areas -Even in tort, L must maintain common areas (hallways and stairs)

L: Latent defects - L must WARN T of hidden defects that L knows about or should know about. Duty to warn ONLY.

A: Assumption of Repairs -
if the L voluntarily makes repairs, L must complete them with reasonably care. If repairs is done negligently, then L is responsible

P: Public Use - L who leases public space (museum, convention hall), who should know, because of the nature of the defect and the length of the lease that T will not repair, is liable for any defects on the premises (ex: TRex falling down)

S: Short term lease of furnished dwelling - L is liable for any defect on site
What is an easement?
The GRANT of a NONPOSESSORY PROPERTY INTEREST that entitles its holder to come form of use or enjoyment of another’s land, called the servient tenement
What are the four ways to create an affirmative easement?
remember PING

a. P: Prescription - By satisfying the elements of adverse possession (COAH) - continuous use for statutory period, open and notorious use, actual use, hostile use (without owners consent)

b. I: Implication (also known as the ‘easement implied from existing use’) - If prior use was apparent and the parties expected it would continue because it is reasonably necessary to the dominant land’s use and enjoyment

c. N: Necessity (the landlocked setting) - An easement of right of way will be implied by necessity if grantor conveys a portion of his land with no way out, except over part of his remaining land.
*Majority: say by reasonable necessity

d. G: Grant - An easement to endure for more than one year MUST BE IN WRITING (called “a deed of easement”) that complies with the formal elements of a deed (because of the SOF)
How is a prescriptive easement created?
By satisfying the elements of adverse possession (COAH) - continuous use for statutory period, open and notorious use, actual use, hostile use (without owners consent)
How is an easement by implication created?
(also known as the ‘easement implied from existing use’) - If prior use was apparent and the parties expected it would continue because it is reasonably necessary to the dominant land’s use and enjoyment
How is an easement by necessity created?
(the landlocked setting) - An easement of right of way will be implied by necessity if grantor conveys a portion of his land with no way out, except over part of his remaining land.
*Majority: say by reasonable necessity
How is an easement by grant created?
An easement to endure for more than one year MUST BE IN WRITING (called “a deed of easement”) that complies with the formal elements of a deed (because of the SOF)
What is a negative easement?
Entitle the holder to PREVENT the servient landowner from doing something that would otherwise be permissible. Generally only recognized in four categories – LASS

Light (ex: Trinity church),
Air,
Support,
Stream water from an artificial flow
What are the four ways you can create a negative easement?
LASS

Light (ex: Trinity church),
Air,
Support,
Stream water from an artificial flow
How is a negative easement created?
CAN ONLY BE CREATED EXPRESSLY, by writing signed by the grantor! AKA no natural/auto right
What is an appurtenant easement?
1. When it benefits its holder in physical use or enjoyment of his property.

2. It takes two baby! Two parcels must be involved. Need:
a. A dominant tenement which derives the benefit AND
b. A servient tenement which bears the burden
What is the rule for appurtenant easements and transferability?
a. passes automatically w/ the dominant tenement, regardless of its mention in the conveyance

b. passes automatically w/ servient estate, UNLESS new owner is a BFP without notice
What is an easement held in gross?
1. It confers upon its holder ONLY SOME PERSONAL OR PECUNIARY ADVANTAGE that is not related to his use or enjoyment of his own land

2. Servient land is burdened. NO benefited or dominant tenement.
Are easements held in gross transferable?
NOT transferable UNLESS for commercial purposes
How do you terminate an easement?
END-CRAMP

i. E: Estoppel
ii. N: Necessity
iii. D: Destruction - Destruction of the servient land, other than through the willful conduct of the servient owner will end it

iv. C: Condemnation - By eminent domain will end it
v. R: Release (most common!) - Written release given by the easement holder to the servient owner
vi. A: Abandonment
vii. M: Merger doctrine (also known as unity of ownership)
viii. P: Prescription
What kind of termination is this?

Ex: A tells B that A will no longer be using her right of way across B’s parcel so B builds a swimming pool
termination of an easement by estoppel
When do easements by necessity end?
1. These expire as soon as the need ends

2. Exception: it was nonetheless created by express grant. then it WON’T end automatically once the need ends!
When do easements by destruction end?
Destruction of the servient land, other than through the willful conduct of the servient owner will end it
What does easement abandonment mean?
Termination.


1. Easement holder must demonstrate by physical action the intent to never use the easement again

2. Required physical action by the easement holder (nonuse is insufficient)
a. Ex: A builds a structure on A’s parcel that precludes her from ever again reaching B’s parcel
What kind of termination is this?

Ex: A builds a structure on A’s parcel that precludes her from ever again reaching B’s parcel
Termination by abandonment
What is the merger doctrine?
easement is extinguished when title to the easement and title to the servient land become vested in the SAME PERSON (ex: A had a right of way across B’s land but then later buys B’s land) – COMPLETE UNITY
What kind of termination is this?

ex: A had a right of way across B’s land but then later buys B’s land
Merger
What kind of termination is this?

ex: if B builds fence around land when A had a right of way]
termination by prescription
What is termination by prescription?
The servient owner may extinguish the easement by interfering with it in accordance with the elements of adverse possession (COAH) -continuous use for statutory period, open and notorious use, actual use, hostile use (without owners consent)

[ex: if B builds fence around land when A had a right of way]
What is a license?
i. Mere privilege, not an interest in land! (very informal) to enter another’s land for a delineated purpose (non-transferable)

ii. No writing required. Not subject to the SOF because it’s NOT in interest in land.
When is a license NOT revocable?
freely revocable at the will of the licensor UNLESS estoppel applies to bar revocation

Estoppel will apply to bar revocation only when the licensee has invested substantial money or labor or both in reasonable relfiance on the license’s continuation. Means this becomes an affirmative easement
A orally licenses to B to come to land to excavate drainage ditch in connection with B’s property and spends substantial time and money to do so.

rights of A and B?
A - cannot revoke license

B - license is actually an affirmative easement gained by estoppel
what is a profit?
a. Entitles its holder to enter the servient land and take from it the soil or some substance of the soil (minerals, timber, oil)

b. The profit shares all the rules of easements (but there is a preference for these in gross rather than appurtenant)
What is a covenant?
A promise to do or not do something related to land. It is UNLIKE the easement because it is not the grant of a property interest, but rather a contractual limitation on a promise regarding the land.
What is the difference between affirmative and negative covenants?
i. Affirmative - promise to DO something related to land

ii. Negative (restrictive covenants) - promise to refrain from doing something related to the land
what is this? -

Ex: I promise to paint our common fence
affirmative covenant
what is this? -

Ex: I promise not to build for commercial purposes, not to paint my house brown, etc.
negative covenant
How do you know if a given promise is a covenant or an equitable servitude?
On the basis of remedy your plaintiff seeks:

1. If money damages: construe as a covenant
2. If injunction: equitable servitude
when will a covenant run with the land (aka binding successors)?
for the burden to run (WITHN)
W - writing
I - intent
T - touch and concern
H - horizontal AND vertical privity
N - notice

for the benefit to run (WITV)
W - writing
I - intent
T - touch and concern
V - vertical privity
what does it mean to touch and concern the land?
promise must affect the parties’ legal relations as landowners and not simply as members of the community at large

Note: covenants to pay money to be used in connection with the land (such as homeowners’ association fees) and covenants not to compete do touch and concern the land
what does horizontal privity mean?
refers to the nexus between the original parties A and B

i. Requires that they be in succession of estate, meaning that they were in a grantor-grantee [most likely], landlord-tenant, or mortgagor-mortgagee relationship
ii. HARD to establish. It’s absence is the reason many burdens won’t run with the land
what does vertical privity mean?
i. Requires some non-hostile nexus, such as contract, devise, and descent.

ii. The only time that this will be absent is if A1 acquired her interest via adverse possession
what is an equitable servitude?
A promise that equity will enforce against successors. Accompanied by injunctive relief.
how do you create an equitable servitude?
WITNES

i. W: Writing - generally the original promise was in writing
ii. I: Intent - parties intended that the promise would bind successors
iii. T: Touch and Concern - the promise affects the parties as land owners
iv. N: Notice - the successors of the burdened land had notice of the promise

NOTE: PRIVITY IS NOT REQUIRED TO BIND SUCCESSORS
how is an implied equitable servitude created?
2 elements of creation:

1. When the sales began, the sub-divider had a general scheme of residential development which included defendant’s lot

2. The defendant lot-holder had notice of the promise contained in the prior deeds (AIR notice)
What does record notice mean in the context of an implied equitable servitude?
Courts split on this issue

1. Worse view: subsequent buyer is on record notice of the contents of prior deeds transferred to others by a common grantor

2. Better view: subsequent buyer does NOT have record notice of the contents of those prior deeds transferred to others by the common grantor
a. Better because less burdensome to D’s title searcher; more efficient; lets land be transferred easier
equitable defenses to enforcement of an implied equitable servitude?
Changed conditions

a. Changed circumstances alleged by the party seeking release from the terms of equitable servitude must be so pervasive that the entire area has changed
b. “Mere pockets of limited change” is NOT good enough.
What is adverse possession?
Possession for a statutorily prescribed period of time can, if certain elements are met, ripen into title. Squatter wins!
What are the elements of adverse possession?
a. C: Continuous -Uninterrupted for the statutory period
(MA - 20 years)

b. O: Open & Notorious - The sort of possession the usual owner would make under the circumstances

c. A: Actual - Entry must be literal

d. H: Hostile - Possessor doesn’t have the true owner’s consent to be there

NOTE: Possessor’s Subjective State of Mind is Irrelevant
what does tacking mean in adverse possession?
One adverse possessor may tack on time with the land his predecessor’s time, so long as there is PRIVITY, which is satisfied by any non-hostile nexus, such as blood, contract, deed, or will. Not allowed when an ouster.
Every conveyance of land has a 2 step process - what is it?
a. Step 1: the land contract, which endures until Step 2

b. Step 2: the closing, where the deed becomes our operative document
What are the K requirements for a land contract?
- must be in writing, signed by the party to be bound (the D).
- Must describe Blackacre and
- state some consideration
What is the doctrine of part performance?
If, on your facts, you have two of the following three, the doctrine is satisfied and equity will decree specific performance of an oral K for the sale of land:
a. B takes possession AND/OR
b. B pays all or part of the price AND/OR
c. B makes substantial improvements

(MA you need ALL 3)
Who has the risk of loss for a property after the K is signed?
once the K is signed, BUYER owns the land, subject of course that he pay the purchase price at closing

Destruction - if in the interim between K and closing, Blackacre is destroyed through no fault of either party
1. B bears the risk of loss unless the K says otherwise!

MA: party in possession prior to closing bears the risk of loss
what are the 2 implied promises in every land K?
i. Seller promises to provide MARKETABLE TITLE (unencumbered fee simple) at closing

ii. Seller promises not to make any false statements of material fact
What are 3 circumstances that would render title unmarketable?
a. Adverse possession - If even PART of the title rests in AP, it is unmarketable

b. Encumbrances - servitudes and mortgages render title unmarketable unless buyer has waived them
* Note: Seller has right to satisfy outstanding mortgage or lien at the closing (duhh) *on exam*

c. Zoning violations - title is unmarketable when Blackacre violates a zoning ordinance
Normally a land K contains NO implied warranties of fitness of habitability - what's the exception?
Exception: the implied warranty of fitness & workmanlike construction to the sale of a new home by a builder-vendor
What is the requirement for the closing?
It must be LEAD:

lawfully executed +
delivery requirement
What does a deed need in order to be lawfully executed?
i. Must be in writing signed by grantor
ii. The deed must need NOT recite consideration, nor must consideration pass to make a deed valid
iii. Must contain a description of the land
What does a deed need in order to meet the delivery requirement?
- could be satisfied when grantor physically or manually transfers the deed to grantee.
* Permissible to use the mail, an agent, or a messenger

- Deliver does NOT necessarily require physical transfer of the instrument itself [**TESTED**]
* Standard for delivery is a legal standard, and a test solely of present intent
What happens to any oral conditions that come with the deed?
Void per SOF
Is delivery by escrow okay? How does it work?
Delivery by escrow is OKAY

1. Grantor may deliver an executed deed to a third party, known as an escrow agent, with instructions that the deed be delivered to grantee once certain conditions are met. Once conditions are met, the title passes to grantee (hence the advantage of escrow).

2. Advantage - if grantor dies or becomes incompetent or is otherwise unavailable before
What is a quitclaim need? (called a "release deed" in MA)
1. Shaggy – “it wasn’t me.” WORST DEED.

2. It contains no covenants. Grantor isn’t even promising that he has title to convey. This is the WORST deed the buyer could hope for. Just releasing whatever interest, if any, the grantor has in the property. No warranties!
* Grantor ONLY promising to provide marketable title at closing – not responsible for problems after
What is a general warranty deed?
1. Mother Theresa of deeds. BEST DEED.
2. Warrants against ALL defects in title, including those of grantors predecessors. Assumes the sins of others
3. Contains SIX COVENANTS (3 present, 3 future)
What are the 3 present covenants in the general warranty deed?
Present covenants - meaning if it’s ever breached it would be at the time of delivery. SOL for a breach begins to run from the moment of delivery.

i. Covenant of Seisin: Grantor promises he owns his estate

ii. Covenant of Right to Convey: Grantor has the power to transfer (no temporary restraints, bans on alienation, or power to sell. Grantor under NO infirmity – of sound mind, requisite age.

iii. Covenant Against Encumbrances: No servitudes or liens on Blackacre
What are the 3 future covenants in the general warranty deed?
Future covenants - a future covenant is not breached (if ever) UNTIL grantee is disturbed in possession. SOL for a breach will not begin to run until that future date.

i. Covenant for Quiet Enjoyment: Grantee won’t be disturbed in possession by a third party’s lawful claim of title

ii. Covenant of Warranty: Grantor will defend grantee against lawful claims of the title brought by others

iii. Covenant of Further Assurances: Grantor will do what’s needed in the future to perfect the title (housekeeping promise – mechanical flow)
What is the statutory special warranty deed?

MA Distinction - called a “quitclaim”
Provided for by statute in many states, this deed contains two promises that grantor makes ONLY ON BEHALF OF HIMSELF (no representations on behalf of his predecessors in interest):

a. Grantor promises he hasn’t conveyed Blackacre to anyone other than grantee AND
b. Blackacre is free from encumbrances made by grantor
who is a bona fide purchaser?
i. Purchaser who:
1. Purchases Blackacre for value AND
2. Without notice that someone else got there first (AIR)
what happens in a notice statute jurisdiction?
If B is a BFP when he takes – he wins! It won’t matter if he never records (but recommend it in case C comes along)

Last BFP to enter WINS
what happens in a race-notice statute jurisdiction?
ii. To prevail, B must be BFP and B must win the race to record.

iii. THUS A’s proper recordation puts later buyers to record on notice! Which defeats their status as BFP
O conveys to A, who does not record. Later, O conveys to B, a BFP, who records. B then conveys to C, who is a mere donee or who has actual knowledge of the O-A transfer.

Who prevails?
C wins in both jurisdictions b/c of shelter rule
O sells Blackacre to A, who does not record. Then A sells to B. B records the A-B deed.

O then sells Blackacre to C (who has no knowledge of the O-A or A-B), who records. O skips town – who wins?
a. C wins, in a notice state because at the time C takes she is a BFP

b. C wins, in a race-notice state, because she is a BFP who wins the race to record. B’s recording is a nullity because it’s a wild deed.
in 1950, O owns Blackarce and thinks about selling it to X but he doesn’t. In 1950, X who does NOT own it, sells it anyways, to A. A records. In 1960, O finally sells Blackacre to X. X records. In 1970, X sells it to B.

a - btw 1960-69, who owned blackacre?

b - who owns blackacre in 1970?
a. Between 1960-1969, A owned Blackacre

b. B owns Blackacre in 1970 if he was a BFP:
- B wins in a notice state because he is a BFP
- B wins in a race-notice state because he is a BFP who wins the race to record because A’s 1950 recording is a nullity as it’s a wild deed! A recorded too early and suffers.
What is a mortgage?
conveyance of a security interest in land, intended by the parties to be collateral for the repayment of debt.
what is the Equitable Mortgage (Absolute Deed)?
A landowner needing to raise money may “sell” the land to a person who will pay cash and may give the “buyer” an absolute deed rather than a mortgage.

* Creditor lends O a sum of money and they both understand that Blackacre is collateral for the debt.
what if creditor fraudulently proceeds to SELL Blackacre to BFP X?
then X owns the land

* Only recourse for O is to sue the creditor for fraud and the sale proceeds
in mortgages - if the note is endorsed and delivered the transferee is eligible to become a ... ?
HOLDER IN DUE CAUSE (this is a good status!)

means he takes the note FREE OF ANY personal defenses that could have been raised against the original mortgagee
The holder in due course is STILL subject to what defenses?
MAD FIFI4

M: Material
A: Alteration
D: Duress (most likely to appear)
F: Fraud in the Factum (a lie about the instrument)
I: Incapacity
I: Infancy
I: Insolvency
To be a holder in due course of note, the following criteria must be met: (5 THINGS)
NEDGV
new egg done very good

1. The note must be NEGOCIABLE, made payable to the named mortgagee

2. The ORIGINAL note must be ENDORSED, signed by the named mortgagee

3. The ORIGINAL note must be DELIVERED to the transferee (copy is unacceptable b/c too susceptible to fraud)

4. The transferee must pay VALUE for the note, meaning some amount that is more than nominal

5. The transferee must take the note IN GOOD FAITH, without any notice of any ILLEGALITY
Who is personally liable on the debt if O, our debtor-mortgagor, sells Blackacre to B?
If B “assumed the mortgage”
a. Both O and B are personally liable
b. B is primarily liable ; O remains secondarily liable


If B takes “subject to the mortgage”
a. B assumed no personal liability
b. Only O is personally liable
c. But, if recorded, the mortgage sticks with the land. Thus, if O doesn’t pay – the mortgage may be foreclosed.
On January 10, M took out a $50k mortgage on Blackacre with First Bank. First Bank promptly and properly recorded its interest on January 10th. Thereafter, on January 15, M sold Blackacre to Buyer. Buyer had no actual knowledge o the lien. Buyer promptly and properly recorded its deed.

Is Buyer liable to the mortgage?
Buyer holds subject to First Bank’s mortgage


* Doesn’t matter what recording statute has been enacted in the jurisdiction

* A later buyer takes subject to a properly recorded lien

- in a NOTICE state (LIKE MA), Buyer takes subject to the lien b/c buyer has RECORD notice of it
- In a RACE-NOTICE state, Buyer takes subject to lien b/c buyer has record notice & bank recorded first
On January 10, M took out a $50k mortgage on Blackacre with First Bank. On Jan. 15th, M sold Blackacre to Buyer. Buyer had no knowledge of the lien. On Jan. 20th, First Bank recorded its mortgage in Blackacre. On Jan 30th, Buyer recorded his deed to Blackacre.

Does Buyer hold subject to First Bank’s mortgage?
DEPENDS on the recording statute:

i. In a race-notice jurisdiction - buyer loses because he lost the race to record

ii. In a notice jurisdiction - buyer wins so long as he was a BFP when he took
what are the 2 rules of thumb for Effect of Foreclosure on Various Interests?
a. Will terminate interests junior to the mortgage being foreclosure, but will not affect senior interests

b. Foreclosure does not affect any interest senior to the mortgage being foreclosed
what is the Purchase Money Mortgage (PMM)?
Mortgage given to secure a loan that enables the debtor to acquire the encumbered land

1. When creditor takes as collateral a security interest in Blackacre itself
2. It’s “SUPERPRIORITY” – puts it to the front of the line
What is redemption in equity?
Universally recognized up to the date of FORECLOSURE sale. At any time prior to the foreclosure sale – debtor can try to redeem the land

* exercised by paying off the missed payment(s) + interest + cost
What is an acceleration clause?
permits the mortgagee to declare the full balance due in the event of a default

Means the full balance + accrued interest + costs must be paid
Can mortgagor waive the right to redeem?
no - called “clogging the equity of redemption” and it’s PROHIBITED
What is statutory redemption?
i. Recognized in one half of the states (not MA)

ii. Gives the debtor-mortgagor a statutory right to redeem for some fixed period AFTER the foreclosure sale has occurred (typically 6 months to one year).

iii. Amount paid is usually the foreclosure sale price rather than the amount of the original debt.

iv. Most states who have this say that the mortgagor will have the right to possess Blackacre during the statutory period

v. When mortgagor redeems, the effect is to nullify the foreclosure sale
When does strict liability attach under lateral support?
Strict liability does NOT attach to the excavator’s actions UNLESS plaintiff shows that, because of defendant’s actions, his improved land would have collapsed, even in its natural state


* P must show that the improvements on his land (ex: shrubs, fountain, structures) did not contribute to his land’s collapse
- This is a very DAUNTING burden of proof
What is the riparian doctrine?
1. Water belongs to those who own the land bordering the water course
2. These people are known as riparian’s, who share the right of reasonable use of the water
3. Thus, one riparian will be liable if his or her use unreasonably interferes with another’s use
What is the prior appropriation doctrine?
1. Water belongs initially to the state, but the right to divert it and use it CAN be acquired by an individual, regardless of whether or not he happens to be a riparian owner

2. Rights are determined by priority of beneficial use

* first in time, first in right
What is the rule for use of ground water?
Surface owner is entitled to make reasonable use of groundwater

* However, this is must NOT be wasteful
What are the rules regarding surface water? (rain, melting snow that hasn't reached natural watercourse)
Surface water is a common enemy. An evil to be eradicated.

A landowner MAY change drainage or make any other changes or improvements on his land to combat the flow of surface water. Many courts have modified the common enemy rule to prohibit unnecessary harm to others’ land.
What is trespass?
1. The invasion of land by tangible physical object.
2. To remove a trespasser you must bring an ejectment action
What is a private nuisance?
Substantial and unreasonable interference with another’s use and enjoyment of the land

unlike trespass, nuisance does NOT require tangible physical invasion. Thus, odors and noise could give rise to a nuisance but not a trespass.
What is zoning?
Pursuant to its police power, government may enact statutes to reasonably control land use FOR THE PROTECTION OF THE HEALTH, SAFETY, MORALS, AND WELFARE OF ITS CITIZENS.
What is "the variance"?
i. The principal means to achieve flexibility in zoning

ii. Proponent must show:
1. Undue hardship AND
2. That the variance won’t decrease neighboring property values

iii. Variance is granted or denied by administrative action typically by a zoning board
What is the rule for nonconforming use?
i. A once lawful, existing use now deemed nonconforming by a new zoning ordinance.

ii. It CANNOT be eliminated all at once unless just compensation is paid – otherwise it can be an unconstitutional taking
What is an exaction?
those amenities government seeks in exchange for granting permission to build

These are inherently suspect – could become government extortion
What is the rule for a valid exaction?
must be reasonably related, both in nature and scope, to the impact of the proposed development


* If not they are unconstitutional