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112 Cards in this Set

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What is a fee simple absolute?

MN: Present Possessory Estates
Fee Simple
Defeaseable Fees
Fee Tail
Life Estate
Years (term of)

Simple Defeasable Tails Live for Years
A fee simple absolute largest estate recognized by law a fee simple absolute can be sold, divided, devised or inherited and has an indfinite or potentially indefinite duration. Today, a fee simple is presumed in the absence of express contrary intent (words of inheritance are no longer necessary).
what is a defesable fee?
Defesible fees are fee simple estates (ie. of uncertain or potentialy infinite duration that can be terminated upon the happening of a stated event).
What is a fee simple determinable (and possiblity of reverter)?
A fee simple determinable terminates upon the happening of a stated event and automatically reverts in the grantor. It is created by durational language, such as: "for so long as, while during or until." A fee simple determinable can be conveyed, but the grantee takes subject to the estate's being termianted by the specified event.

Exam tip. Remember that statements of motive or purpose do not create a determinable fee. To create a fee simple determinable, words limiting the duration of the estate mut be used. Watch for grants such as "for the purpose of" and "to be used for " they are merely expressions of motive
- Correlative Future interest in Grantor- Possibility. of Reverrter
- Whenever a grantor conveys a fee simple determinable he automatically retains a possibility of revertrer, which is a reversionary future interst. A possibility of reverter is transferable, descendible and devisable.
What is a fee simple subject to condition subsequent (and right of entry)?
A fee simple subject to a condition subsequent is an estate in which the grantor reserves the right to terminate the estate upon the happening of a stated event. i.e. the estate does not automatically terminate-the grantor must take some action. The estate is created by use of conditional words such as upon condition that, provided that, but if, and if it happens that.

- Correlative future interest in Grantor- Right of entry
right to terminate reserved by the grantor, must be expressly reserverd; unlike a possibilty of reverter, it does not arise automatically. Some courts hold that rights of entry are not transferable inter vivos, but most states agree that they are devisable and all states agree they are descendible.
What is a fee simple subject to an executory interest?
A fee simple subject to an executory interest terminates upon the happening of a stated event (because it is determinable or subject to a condition subsequent). It passes to a 3rd party rather than reverting in the grantor or giving the grantor a right to terminate, the third party has an executory interest...
ex. To A and his heirs for so long as liquor not sold on the premises; in that event, to B "B has an executory interest.
2. Blackacre to XYZ Church, but if it used for anything other than church purposes, then to B. " B has an executory interest.
What is a fee tail?
An estate where inheritablity is limited to lineal heirs. It is created by the words: to B and the heirs of is body." Most jursdictions have aboloished the fee tail and an attempt to create one results in a fee simple.
What is a life estate?
An estate measured by the life or lives of another.

- Also dower and curtesy were the common law interests of a spouse in the real property of the other spouse. These interests could not be defeated by conveyance or by creditors Most states have abolished dower and curtesy in favor of a statutory right to a portion of spouse's estate.
life estate con't
Conventional Life estates
- Life estate pour aurtre vie (life of another
- Life of grantee.
What is the doctrine of waste?
A Life Tenant is entitled to any oridinary use and profit from the land but can't do anything that injures interests of a remainderman or revisioner. A future interest holder may sue for damages or enjoin such acts.
- Affirmative or Voluntary waste
Natural resources: Exploitation of natural resources such as minerals by a life tenant is generally limited to situations when 1. necessary for repair or maintenance of the land 2. the land is suited only for such use. 3. expressly or impliedly permitted by the grantor...Open mines doctrine if minng is done on the land prior to life estate. The tenant can continue mining but is limited to open mines.
Waste Cont....
Permissive waste: Occurs when a life tenant fails to protect or preserve the land . A life tenant is obligated to: 1. pay interest on mortgages (not principal) 3. pay ordinary taxes on the land and 4. pay special assessments for public improvements of short duration (improvements of long duraton are apportioned between the life tenant and future interest holder). A life tenant is not obliged to insure the premises for the benefit of remindermen and is not responsible for damages caused by a third party tortfeasor.

Ameliorative waste is a change that benefits the property economically. This waste was actionable at common law, but now a life tenatnt may alter or even demolish existing builtings if:
1. the market value of the future interests is not diminished; and either
2. the remaindermen do not object; or
3. A substantial and permanent change in the neighborhood conditions (e.g. change from residential to 90% industrial) has deprived the property in its current from of reasonable productivity or usefulness...
- Compare: Leasehold tenant remains liable for ameliorative waste even if the neighborhood has changed and the market value of premes is increased.

Compare: Worthless property. If the land is practcally worthless in its present state, the life tenant may seek a partition sale, the proceeds of which are put in trust with income paid to the life tenant.

Renunciaation of a Life Estate: If a life tenant who receives the estate by will or intestacy renounces his interest, the future interest following the life estate is generally accelerated so that it becomes immediately possessory.
What are future interests?
RRETCG

Reversionary
Remaindermen
Executory
Transfers
Class Gifts
A future interest gives its holder the right or possiblity of a future possession of an estate. It is a present, legally protected right in property.
- Reversionary Interests
- Possibility of Reverter and Rights of Entry. These interests are discussed supra in connection with defeasibly fees.
- Reversions- A reversion is the estate left in a grantor less than she owns (e.g. A conveys "to B for life";A has a reversion). It arises by operation of law; it does not have to be expresly reserved. A reversion is alienable, devisable and inheritable. Its holder can sue for waste and for tortious damage to the reversionary interest.
All reversionary interests are vested and thus not subject to the RAP.
-Remainders interest in a third person that can become possessory on the natural expiration of the preceding estate. It cannot divest a prior estate, and it cannot follow a time.
3. Executory interests are future interests in third parties that either divest a transferee's preceding reold estate ("shifting interests") or follow a gap in possession or cut short a grantor's estate.
Future interests cont...
Example: In a grant from A to B and his heirs, when B marries C B has a springing executory interest because it divests the grantor's estate.
2. In a grant from A to B for life then to C and his heirs but if C predeceases B and then to D and his heirs, D has a shifting executory interest because it divests a transferee's preceding estate.

- Executory interests are not considered vested and thus are subject to the RAP, but executory interest are not destructible.
Exam Tip:
Remember that if the future interest does not follow the natural termination of the preceding estate, it must be an executory interest; an executory interest can follow a fee simple estate.

Exam tip...Where language is ambiguous, the preference is for vested remainders subject to divestment rather than contingent remainders or executory interests. Policy favors early vesting of estates.
4. Transferability of Remainders and Executory interests...Vested remainders are fully transferable, descendable and dvisable, at common law, contingent remainders and executory intersts wre not trnasferable in vivos, but most courts today hold that they are freely transferable. Contingent remainders and executory interests were not transferable inter vivos, but must courts today hold that they are freely transferable. Contingent remainders and executory intersts are descendible and devisable, provided survival is not a condition to the intersts' taking.
- ny future interest that is trnasferable is subject to invol. transfer ie.e reachable by creditors..
What is a class gift?
A class is a group of persons having a common characteristic (e.g. children nephews, etc.) The share of each member is determined by the number of persons in the class. A class gift of a remainder may be vested subject to open (where at least one goup member exists) or contingent (where all group members are unascertained).
- What happens when a class closes?
The rule of convenience in the absence of express contrary intent, a class closes (i.e. no one born after that tie may share in the gift) when some member of the class can call for distribution of her share of the class gift.
What is a class gift?
A class is a group of persons having a common characteristic (eg children nephes) The share of each member is determinied by the number of persons in the class. A class gift of a remainder may be vested subject to open (where at least one goup member exists) or contingent (where all group members are unascertained).
- Class closes = ruleof convenience in teh absence of express contrary intent, a clas closes (ie.e. no one born after that tie may share in the gift) when some member of the class can call for distribution of her share of the class gift.
class gifts continued eamples:
T's will devises property to W for life, then to A's children. At the time the will is executed, a A has two children B and C . A then has another child, F . The class closed at W's death becuase it was time to make the distribution. Thust B,C,D and E share the property , and F is excluded.
2. T's will devises the residue of his estate "to those of A's children who attain age 21...If any of a's children is 21 at T's death, the class closes at that time. Otherwise it closes when one of A's children reaches age 21. But remember if it had been a future gift " Too A for life, then to suchof A's children who attain age 21" the class would remain open until the life tenant's death even if some of the class members had reached the stated age at T's death.


Exam Tip: Recall that persons in gestation at the time of the class closure are included in the class.
What is survivorship?
Survivorship of a class member to the time of closing is usually unnecessary to share in a future gift-unless survival was made an express condition) e.g. To B for life and then to his surviving children" However, certain terms are construed to create implied survivorship conditions (e.g. widow, issue, heirs, next of kin).
Exam tip: When the instrument creating a gift of a future interest in an open class becomes effective, exising class members have a vested remainder suject to open. But watch for a condition precedent, which will prevent the remainder from vesting. For example: to A for life, remainder to those of B's children who survive A "creates a contingent remainder in B's children even if they are in existence and even if B is dead because the remainder is contingent on surviving A.
What is a trust?
A fiduciary relationship with respect to specific property res wherein the trustee holds legal title to the property subjecct to enforceable equitable rights in a beneficiary. The creator of the trust is the settlor, who must own the property, who must own the property at the time of trust creation and must have had the intent to create the trust.
- Application of the Rap- applies to the equitable future intrests of the beneficiares in a private trust just as it does to legal future interests.
Trust's Cont...
- CReation of trusts - can be created by will (testamentary trust), inter vivos transfer of the trust res, or inter vivos declaration that the settleor is holding the property in trust. All trusts of real property must be in writing. Note that a settlor may bequeath (by will) property to a trust created during in his lifetime- i.e. he may pour it over into the trust.
- A charitable trust must have a charitable purpose. The rules governing charitable trusts differ from those aplicable to private trusts in three important ways. 1. Charitable trust must have indfinite beneficiaries; 2. May be perpetual (rap doesn't apply) 3. cy pres doctrine (allows a courte to select an alternatvie charity when the purpose of the settlor becomes impractical or impossible.
RAP does apply to a transfer from private to charitable; charitable to private.
What is the RAP?
No interest in property is valid unless it must vest, if at all, not later than 21 years after some life in being ("measuring life") at the creation of the interest. If there is any possiblity that the interest might vest more than 21 years after a life in being, the interest is void. The rule applies to contingent remainders, executory interests, vested remainders subject to open (class gifts), options to purchase (not attached to leasehold), rights of first refusal and powers of appointment.
RAP Con't....
When perpituities period begins to run...The time the interest is created and the perpetuities period runs depends on the intruement and the interest created: For interests granted by will, it runs from teh date of the testator's death, for deeds, it is the date of delivery; The period runs on an irrevocable trust from the date it is created; it runs on a revocable trust from teh date it becomes irrevocable.
"Must Vest" An interest vests for purposes of the Rule when it becomes 1. possessory or 2. and indefeasably rested remainder or a vested remainder subject to total divestment.
RAP Con't
Exam tip...In analyzing RAP problems, keep in mind that the key is when the interest could possibly vest. - not when it is likely to vest or even when it did. you must examine the grant as of the time of its creation and be sure that if the interest vests it will be within the period of the rule (i.e. life in being plus 21 years). If there is any possibility that it could vest beyond the period, it is void.

EXAM TIP Remember that the RAP aplies only to contingent remainders, executory interests, vested remainders subject to open, and in most states, options to purchase. Thus the grantor's interests (revsersions, possibilities of reverter, rights of entry) are safe from the Rule; you don't need to consider them.
What is a life in being?
Unless other measuring lives are specified, one connected with the vesting of the interst is used any lives may be denominated measuring lives, provided they are human and of reasonable number.
What interests are exempt from the RAP?
Except for vested remainders subject to open, the RAP does not apply to vested interests. Thus, other vested remainders, reversions, possibilities of reverter, and rights of entry are not subject to the Rule. Moreover, there is a charity-to-charity exception to theRule (i.e. the Rule does not apply to any disposition over from one charity to another), and an exception for options to purchase held by a current tenant.
What is the effect of violating the rule-
Violation of the rule destroys only the offendinginterst. the exception is the rare case of ":infectious invalidity" where the testator would probably have preferred the entire gift to fail.
How does the rule operate?
1. Executory interest following defeasible fee...Generally, an executory interest that follows a defesaible fee (e.g. to A for so long as no liquor is consumed on the premesis, then to B") violates the RAP and the executory interest is stricken. (An executory interest following a defesible fee is valid only if the condition is specific to the fee holder or expressly limited to the perpetuties period).
Exam tip...When a void inerest is stricken, the interests are classified as if the void interest were never there. For example if G conveys : to A for so long as no liquor is consumed on the premesis, then to B B's interst would be strciken, a would ahve a fee simple determinable, and G would have a possibility of reverter. In contrast, if G conveys "to A , but if liquor is ever consumed on the premises, then to B." B's interest would be stricken. A would have a FSD and G would have a possibility of reverter, In contrast, if G conveys "to A, but if no liquor is ever cosumed on the premises, then to B,: B's interest and the conditions are stricken, and A has a Fee simple absolute.
What is the Age contingency beyond age twenty-one in open class?
A gift to an open class conditioned on members surviving beyond age 21 violates the Rule.
- "Tp X fpr ;ofe. tjem tp tjpse pf X's children violates the Rule and is void.
What is a Fertile Octogenarian?
A woman is conclusively proved cabable of bearing children...
Some states allow after 55, some allow admission of evidence of childbearing capacity.
What is the rule on unborn widow/widower?
Because a person's widow(er) is not deermined until his death, it may turn out to be someone who was not in beingat the time of disposition.
Ex. O conveys to A for life, then to A's widow for life, then to A's surviving issue in fee. In the absence of a statute to the contrary, the gift to A's issue is invalid, because A's widow might be a spoiuse who was not in being when the interst was creaed.
Compare: A remainder to A's children would be valid vecause, unlike issue, they would be determined at A's death.
Where necessary to sustain a gift, some stte statues raise a presumption that any refernce to a persons' spouse, widow or widower is to aperson in being at the time of transfer.
Admin. Contingency...A gift conditioned on an admin continency (e.g. admissionof will to probate) vioaltes the Rule. For example, a gift "to my issue surviving at the distribution of my estate" is invalid because he estate might be administered beyond the period of the Rule. some state reform statutes eliminate this problem by raising a presumption that the transferor intended taht teh contingency should occur, if at all, within 21 years.
What are options and rights of first refusal?
Generally, an option to purchase or the right of first refusal that is structured so that it might be exercised later than the end of the perpetuties period is void...Exception: The RAP doesn't apply to options to purchase held by the current lessee.
Watch for a fact pattern on the exam where a tenant has an option to purchase beyond the perpetuties period. Remember that the Rule doesn't apply to such an option held by a curent tenant, but it doesn't apply to a former tenant and to any party to whom the current tenant might transfer the option separately from the lease (in jursdictions permitting such a transfer).
How does the RAP apply to class gifts?
1. Bad-as-to-ONE, Bad-as-to-all...If the any member's interst may vest , the whole class gift fails. For the class gift to vest, the class must be closed and all conditions precedent must be satisfied for every member.
Gift to subclass exception: Each gift to a subclass may be treated as a separtate gift under the rule.
Per capita gift exception...A gift of a fixed amt. to each member of a class is not treated as a class gift under the rule.
What are statutory reforms related to the RAP?
In many states RAP modified...Wait and see statutes dertermine an interest's validity upon teh termination of the preceding life estate- if the interst actually vests or fails w/in the perp. period it is good, if it does not, it is void. Some states have statutes dealing with the common pitfall cases. Other statutes provide alternative vesting periods and some allowcourt reformation of invalid intersts to cary out the door's genreral intent (cy pres) these reforms are irrelevent for bar exam purposes unless reffered to in the question.
What is the age condingency beyond age twenty one in open class?
A gift to an open class conditioned on members surviving beyond age 21 violates the rule...
To x for life then to those of x's children who attain the age of 25 The remainder in X's children violates the rule and is void.
What is the fertile octogenarian?
A woman is presumed capable of bearing kids regardless of age or medical condition.
- Some J's allow evidence
What is the rule on unborn widow/ers?
B/c a person's widow(er) is not determined until death,it may turn out to be someone who was not in being at the time of te disposition. Where necessary to sustain a gift, somestates raise a presumption that any refernce to a person's spouse, widow, or widower is to a person in being at the time of the transfer.
What is the rule on administrative contingency's...
A gift conditioned on an admin. contingency (eg admission of a will to probate) violates the Rule. Ex. "to my issue surviving at the distribution of my estate is invalid because the estate might be administered byond the period of the Rule. Some state reform statutes eliminat this problem by raising a presumption that the transferor intended that teh condingency should occur, if at all, within 21 years.
What is the rule on options and rights of first refusal?
Option to purchaseor right of first refsalthat is structeredso it might be exerciesed later than teh endo fo the perpetuties periodis void...Except the RAP doesn't apply to options to purchase held by the current lessee.
Exam Tip...watch for fact pattern where tenatn has an option to purchase beyond the perpetutieds perido. REmember that the rule does not apply to such an optoin held by a current tenant, but it does apply to a former tenant and to any party to whom the current tenant might transfer the option separately from teh lease (in j's permitting such a trans.)
What is the bad as to one-bad as to all rule regarding class gifts and the RAP?
If the interst of any class member may vest too remotely, the whole class gift fails. For the class gift to vest, the class must be closed and all conditions precedent must be satisfied for every member.
What is the gift to subclass exception?
Each gift to a subclass may be treated as a separate gift under the rule...ex. Income to A for life, then to A's children for heir lives. Upon the death of each of A's children, the corpus is to be distributedto that child's issue, per stirpes." The gifs to each of A's children's issue are condidered separately. Thus, the gifts to issue of A's children living at the time of the disposition are good, but the gifts to the issue of afterborn children of A violate teh Rule and are void.
What is the per capita gift exception?
A gift of a fixed amount to each member of a class is not treated as a class gift under the rule.
What are some statutory reforms of the rap?
In some states RAP is modified...Wait and se stat. dtermine an inters's validity upon the termination fo the preceding life estate- If the interest actually vests or fails withing the perpetuties period it is good; if it does not, it is void. Some tates have statues deling with teh common pitfal cases. Other statutes provide alternative vesting periods, and some allow court reformation of invalid inters to carry out the donors intent. These reforms are irrelevant for bar q's unless reffered to in teh q.
What is the rule on restraints on alienation and what are the 3 types of restraints on alienation?
Generally any restriction on the transferbility of a legal (as opposed to equitable) interst is void...
1. disabiling restrains, under which atempted transferes are ineffective...2. forfeiture restraints, under which an attempted transfer forfeits teh interst and 3 promisory retraints, under which an attempted transfer breaches a covenant.
- all disabling rstraints on any type of legal interest are void.
- all absolute resraints on fee simple estates are void; thus, the grantee may freely transfer the proprty. However, restraints on fee simple estates for a limited time aand rx purpose are likely to be upheld (eg a retstraint limited to the joint life times of co-owners as a reasonable way to insure neither will have to live w/stranger).
What types of restraints on alienation are valid?
1. forfeiture and promissory restraints on life estates
2. forfeiture restraints on transferability of future interses
3. Reasonable restrictions in commmercial transactions
4. Rights of 1st refusal
5. Restrictions on assignment and sublease of leaseholds (eg requiring landlords consent)
Exam tip---remember taht the RARoA applies only to legal intersts...REstraints on teh alienation of equitable interstes (eg spendthrift clasues in trsut instrumetns are valid)
What is a JT?
Esate held concurently by several persons with a right of survivorship. When JT dies, the property is fred from her concurrent interst (her survivors do not succeed to it).
- Creation: need time title, intrests, possession to create JT...Interests of the JS's must be equal in every way. Must take identical intersts, ast teh same tie by the same instrument with teh same right to posession.. (equal shares, contrast with TIC where equality is presumed but not required).
How is a JT severed?
1. Right of survivorship is severed TIC is created if:
- Inter Vivos Conveyance (vol or invol conveyance by a JT of her undivided intrest destroyes JT. If more than 2 tenants JT severed only as to conveying tenant's interest. Severance may not occur if entire interest not transferred.
- Judgment liens- P gets money J angains D that J becomes a lien on the D's real prperty in the country where the judgment is docketed. Lien runds w/the land burdenign it until J is paid or the lien expires. If such a lien is acquried against JT it doesn't sever until it is sold at forclosure.
- Mortgages most states, a mortgage is a lien on title and does not sever a JT. Severance only occurs if the mortgage is foreclosed and the property is sold. The execution of a mortgage in title theory states, however, does not sever a jT.
- Leases- states are split as to whether 1 JS's lease of interest causes severnce.
- Contract to convey severance if 1 JT contracts to convey her iterst, but the courts are split on whether an executory K by all JS's works a severance.
- A willis ineffetive to work a severance becuase t death the testators interst vanishes.
- A jT who murders the other JT should not lose her right of survivorship...In some JS' statutes change this result; in others CT is imposed forthe deceent's estate.
what is a tenancy by the entirity?
A tenancy by teh entirelty is a marital estate akin to a JT in common law jurisdictions it arises presumptively in any conveyance to a husband and a wie. only death, divorce, mutual agreemetn, or execution by a joing creditor of both the husband and wife can sever tenency by the entirty . An individual spouse cannot convey or encumber tenancy by the entriety. A deed or mortgage executed by only one spouse is ineffecvie.
What is a TIC?
Common concurrent estate with no right of survivorship. Tenants can hold different intersts in teh prorety, but each is entiteld to possession of the whole. Interst are alienable, devisable and inheritable. Today, multiple grantees are presumed to take as TIC not as JTS's.
What are the rights and duties of Co-tenants?
- possession..each cotenant has the riht to possess all portions of the property but has no right to exclusive possesion of any part. A contenant out of possession cannot brign a possessory actoin unless she is ousted (eg another coteanan claims right oto exclusive possession).
-Co-teanant in possession has the right to retain profits from her own use of the proprty ...she must sharenet rents from third parties and net proftits gainsed from exploitations of land,such as mining.
- A JT or TIC may encumber her interst (by mortgate or judgment lien) but may not encumber teh intersts of the otehr co-tenants.
- Any coteant has a right to judicial partitio, eitehr in kind, or by sale and division of proceeds. Generally this rightmay be exercies at any time but retstraintes on partion by co-tenants arevailid provided tehy are limited to a rx. time.
duties of co-tenants con't...
Expenses for preservationof property- Contribution..
1. REpairs- teannt who pays more than pro rata shaer of necessary repairs is entitled to contribution if she notified cotenants about repairs.
2. improvement- no right of contribution for cost of improvements unless there is apartition.
3. Contrivution can be demanded for taxeds or morgage paymetns paid on teh entire prperty. However, REimbursement to a co-teanant in sole pssession is limited to ethe extent that expenditures exceed the rental value of her use.
- Duty of Fair dealing- A confidential relatinhisp exists among co-tenants; eg one coteant's acquisition of anaoutstanting titel or lien that may affect the estate is deemed to be on behalf of other cotenats. It isdifficutl for one cotenant ot adversely possess agaoins othe rco-tenants.
What is a leasehold?
A leasehold is an estate in land whre the tenant has a present possesssory interest in the leased premises and the landlord has a reversion interest.
What are the characteristics of a tenancy for years?
Continue for a fixed period of time
- Created usually by written leases (SOF requires a writing for terms of multiple years)
- Ends automatically at its termination date...
-Breache of Covenants- In most leases the landlord reserves a right of entry which allows him to termiante the lease if the tenant breacehs any of the lease's covenants
a. failure to pay rent- in many j's a landlord may by statute terminate the lease upon the tenant's failure to pay the promised rent- even in tehabsence of a reserved right of entry.
- Surrender A tenancy for years may also terminate if the tenant surrenders the thencay and teh alandlord accepts. he same formalitiuehold are requred in writing for the surrendur. (eg if unexpired term exceeds one year surrender must be in writing).
what are the characteristics of a periodic tenancy?
Continues for uccessive periods (eg month to month) until terminated by prper notice by either party
- Creation
a. express agreement
b. Implication (eg L leases to T at a rent of 100 payable monthly)
c. Operation of law (t remains in possession after the lease expires, and L treats it as a periodic tenacy; or the lease is invalid, but T goes into possession.
- termination- A periodic tenancy is automatically renewed until proper notice of termination is given. Usually, the notice must be one full period in advance (eg. one moth's notice for a month to month tenacny) and timed to terminate the lease at the end of a period (eg) the usual mont to month tenancy can end only on the 30th or 31t not the 15th. For a year-to-year lease, six months notice is required.
What are teh characteristics of a nenacy at will?
Tenancy at will msut be created by an express agreement that the lease can be terminated at any time. Absent such an agreeement, periodic rent paymetns will cause a court to treat it as a periodic tenancy. If the lease gives only the landlord the right to terminate, a similar right will be implied in faovor of the tenant. Hoever, if only the tenant has a right to terminate a similar right will not be impleid in faov of the landlord.
- A tenancy at will may be termianted wihtout notice by any party with the power to do so or it may be termianted by operation of law (eath, commission of wate, etc.)
What is a tenancy at sufferance?
1. Creation- arises when a teannt wrongfully remains in possession after the expiration of a lawful tenancy.
- Termination lastssonly until the landlord takes steps to evict the tenant. No notice requried.
What is the hold over doctrine?
if a tenant continues in possession after his right topossesson has ended, the landlord may 1. evict him or 2 bind him to a new periodic tenacny. Generally, the terms and conditions of the expired tenancy govern the new one. However, if the landlord notifies the tenant before teh lease expores that occupancy after the termination will be at increased rent the tenant, by holdin gover, is held to have acquiesced t teh new terms (even if teh tenant actually objected to the new terms)
- Exceptions 1. teant remains in possession for only a few hours after termination or leaves a few articles of personal proerty 2. the delay is not the tenant's fault (eg) severe ilness or 3 it is a seasonal lese in these cases teh landlord cannot bind teh tenant to a new tenancy.
What is a lease?
A K that governs teh landlord-tenant relationship. Covenants in teh lease are generally independent i.e. if one party breaches a covenant teh other party can recover dx but must still perform his promises and cannot terminate the landlord-tenant relationship the doctrines of actual and constructive eviction and the implied warranty of habitablity are exceptons to the rule. Also, many states have enacted stats allowing the ll to terminate for nonpayment of rent.
What are the duties of the tenant and remedies for the landlord.
Cannot dx (commit waste on ) the leased premises the rules governming waste in teh leasehold context are much like those governing wast in the life estate context. - Vountar (tenant intentionally or negilencly dx the the premises orexpoints minerals on teh porpoerty. 2. permissive waste occurs when teh tenaat fails to ake reasonable steps to protect the premises from damage from teh elements. T is liable for all ordinary repaoirs, excluding ordinary wear and tear. If the dury is shifted to the landlord by lease or statute a T hasa duty to reort deficiencies. 3 Ameliorative wate...occurs when teh tenant alters the leased porperty, thereby incresaeing its vlaue. Gen. the teant is liable for the cost of restoration. There is a modern excepoton to this rule, however, which permits a tenant to make this type of change if he is a long-term tenat and the change reflets changes in the neighborhood.
tenant's duty/landlord remedies con't...
If the leased premises are destroyed w/o the faulth of eighter the landlord or the tenant no waste is involved. In the absence of lease language or a stat. to the contrar, neither party has a duty to restore the premises, but the tenant has a duty to continue paying rent. In most states, statues or case law now give the tenant the option to terminate thelease in this situation, even in thepresence of an explicit covenant to repair.
What is a tenants liability for covenants to repair?
If the tenant specifically covenants to make repairs, his duty will be higher than the duty implied by the la of waste. the teant was a duty to repair even rdinary wear and tear unless expressly exluded, but has no duty to repair structural failures or damage from fire or other casualty unless expressly included. A tenant with a duty to repair is liable under such a covenant for al other defects, including reconstruction if the premises are destroeyed.
What is the tenants duty not to use the premises for an illegal purpose?
landlord may terminate the the lease or obtain dx and injunction. Occasional unlawful conduct by teanant doesn't breach the duty.
What are the rules on paying rent?
Common law: rent due at the end of the leasehold term. However, leases usually contain a provision making rent payable at some other time (eg. monthly in advance) most states today have statues providing that if the leasehold terminates before thetime originally agreed upon the tenant must pay a proportionate amount of the agreed rent.
- Rent deposits: LL not permitted to retain a sec. deposit beyond the dx actually suffered. If a rent depoist is denomiated a bonus the landlord can retain it after the tenant is evicted.
- termination of Rent Liability- if a tenant effectively conveys (surrenders) his leasehold interest back to the landlord his duty pay rent ends.
What are LL remedies?
Tenant on Premises But Fails to Pay REnt- Evictor Sue for rent- At comon law, a breach of the lease, such as failure topay rent esuled only in a cause of action for money dx; a breache did not give rise to a right to termiante the lease. Most modern lease, however, give the nonbreaching party the right ot terminate. Thus, if a tenat is n the premises and fails to pay rent, the landlord may bring suit for rent due or may evict the tenatn under the state's unlawful detainer statute. The only issue in an unlawful detainer proceeding is whether the tenant has the right to possession; the tenant cannot raise counterclaims.
- Tenant Abandons- Do Nothing or Reposses...If the tennat unjustifiably abandons the property, the majority view is that the landlord has a duty to mitigate dx by seeking to rele the premises. If the landlord repossesses and/or relets, the tenant's liablity depends on whether the landlord has accepted the surrender. If surrender is not found, the tenant is liable for the difference between the promised rent and the fair rental value of the property (in cases of reletting, between the promised rent and the rent received from reletting). If surrender is found, the tenant is free from any rent liablity accruing after abandonment. Note that the LL's resumption of possession for himself consitutes acceptance of surrender.
What are the landlord's duties and tenant's remedies?
1. Must deliver possession of premises...put T in actual posession.
2. Quiet enjoyment...
-Actual Eviction...excludes tenant from teh entire premises.
- Partial Eviction..T excluded from part of premises. Only pay partial rent.
- Constructive Eviction...LL does something (fails to provide a service he has duty to provide) rendering the property uninhabitable, the tenant may termiante teh lease and seek dx. Conditions msut be the result of the ll's actions and teh tenat must vacate w/in reasonable time.
- Implied warranty of hbitablity...REsidential leases
- Nonwaiveable
- Duty tied to stds of local housing codes. In even of breach
- 1. terminate the lease 2 make repairs and offset the cost against future rent. 3. abate the rent to amt equal to fair value i view of defects 4. remain in possession pay full rent sue for dx.
- Retaliatory Eviction- LL may not termiant a lease or penalize a tenat in retaliation for T's exercise of legal rights, inclduing reporting housing or buling code violations. many J's presume if 90 or 180 days after T exercises right...LL can overcome by showing nonretaliatory rx.
What is the rule on assignments and subleases?
-absent an express rstriction in the lease, a T may freely trans. her leasehold interst, in whole or in part. A complte transdfer of the entire remaining trem is an assignment. If the T retains any part of the remaining term (other than a right to reenter uon) the transfer is asublease.
-trnasfer will be considered a subleae, rather than an assignment only when the original T reserves time for herself.
What are the consequences of an Assignment?
- assiginee satands in the shoe of hte original T in a direct relationship wit the landlrod...ie assigne and the LL are in privity of estate and each is liable to the other on all covenant sin the lease that run with the land...
- Covenants that run with the land...if the orignal parties to the lease so intend an dthe coveanat tougches and concerns the land )ie benefits the landlord and burdens theT or vice versa)
- Rent covenants- BC a covenant to pay rent runs w/ the land, the assignee owes rent directly to the LL after assignment, teh orignalT is no longer in privity of estate with the LL but remiinas liable on the origninal contractual oblicgtion to pay rent (privity of contract). If the assignee reassigns the leasehold interst, his privity of estate within the landrd ends, and he has no liablity for the subsequent assignee's failure to pay rent.
What are the consequences of a sublease- sublessee no privity w/ll
Subleseee is the T of the original lessee and usually pays rent to the original lessee, who then pays the ll. A sublesee is not personally liable to the landlord for rent or for the performance of any of the covenants in teh main lease unless the sublessee epressly assumes the covenants.
- LL remedies...the LL may terminate the main lease for nonpayment of rent or breach of other covenants if teh lease so states or the power is given by statute. The sublease automatically termiantes with teh main lease. Also, many states allow a landlord who does not receive rent to assert a lien on personal property found on the premises; this applies to a sublessee's property as well as that of original tenant.
- Rights of Sublessee- Cannot enforce any covenants made by th eLL in teh main lease, except a residenail sublessee can enforce w of habitability
What are teh covenants against assignment or sublease?
Lease covenants restrciting assignment ans sublease are strictly construed against the ll.
- Waiver...VAlid covenat against assignment is considerd waived if the LL was aware of the assignment and din't object. (eg by knowingly accepting rent form the assignee), once the ll consents to one transfer, he waives teh covenat as to future transfers unless expressly rseved.
-Transer involation o lease If a tenant assigns or sublets in violation of a lease the transfer is not void... The LL may terminate the lease or sue ofr dx.
What is the rule on assignments by ll's
A ll may assign the rents and reversioninterst he owns. This is usually done by deed when the ll conveys a buling to a new owner...T's consent isn't required.
- Rights of ASSIgnee Against T's - Once T's are given rex notce of teh asignm they must recognize and pay rent ot new owener . Benefit of all tenant covenats that t and C the land run with the ll's estate to the new owner.
- Liabilty o fassignee to T's Burden of the ll's covenants that T and C the land runs wiht the ll's estate to teh assignee; thsu, the assignee is laibel for the peroformance of those covenats. The orignal ll also remains liable on all of the coveats he made in the lease.
What is the rule on condemnation of leaseholds?
If the entire leasehold is taken by eminent domain, the tenant's liabilty for rent is extinguished because both the leasehold and reversion have merged in the condemnor and tehre is no longer a leasehold estate. The Lessee is entitled to compensation. However, if the taking is temporary or partial, the tenant is not discharged from the rent obligation, but is entitled to compensation (i.e., a share of the condemnation award) for the taking).
Tort Liability of Landlord and Tenant
What is the rule on the landlord's liability in tort?

MN: C.C. Public Furniture Repair Contracts
At Common Law, a landlord had no duty to make the premises safe. Today, there are six exceptions:
1. Concealed or dangerous condition (latent defect): If at the time the lease is entered into, the landlord knows (or should know) of a dangerous condition that the tenant could not discover by a reasonable inspection, the landlord must DISCLOSE (not repair) it. Otherwise, the landlord is liable for any injuries resulting from the condition. If the tenant accepts the permises after disclosure, she assumes the risk for herself and others; the landlord is no longer liable.
2. Common Areas: The landlord cas a duty of reasonable care in maintaining common areas.
3. Public use: A landlord is liable for injuries to members of the public if, at the time of the lease, he: 1. Knows or should know of a dangerous condition, 2. Has reason to believe the tenant may admit the public before repairing the condition; and 3. fails to repair the condition.
LL liability in tort con't...
4. Furnished short-term residence: A landlord who rents a fully furnished premises for a short period (e.g. summer cottage) is under a stricter duty. He is liable for injuries resulting from ANY defect whether he knew of it or not.
5. Negligent Repair by LL: Even if a landlord has no duty to make repairs, the landlord who actually attempts to repair is liable if an injury results because the repairs are done negligently or give deceptive appearance of safety.
5. LL contracts to repair: If the ll covenants to repair, he is liable for injuries resulting from his failure to repair or negligent repair.
What is the modern trend to Landlord tort liability?
Many courts are now holding that a landlord owes a general duty of reasonable care toward residential tenants, and will be held liable for injuries resulting from ordinary negligence if he had notice of a defect and an opportunity to repair it.
a. Defects arising after tenant takes possession: A landlord generally is held to hace notice of defects existing before the tenant took possession but is not liable for defects arising after the tenant takes possession unless the landlord knew or should have known of the defect.

b. Legal duty to repair: If the landlord has a statutory duty to repair (e.g. housing codes), he is liable for injuries resulting from his failure to repair or negligent repair.
c. Secuirty: Some courts hold landlords liable for injuries to tenants inflicted by third-party criminals where the landlord failed to comply with housing code provisions dealing with security, maintain ordinary secuirty measures, or provide advertised extraordinary security measures (e.g. security cameras)(.
What is the rule on tenant liability for torts?
The duty of care owed by a tenant, as an occupier of land, to third persons is discussed in Torts.
What is the rule on fixtures?
A fixture is a chattel that hs been so affixed to the land that it has ceaed being personal property and has become part of the realty. A fixture passes with ownership of the land.
What is the rule on chattels incorporated into the structure?
When items are incorporated into the realty so that they lose their identity (e.g. bricks, concrete), they are fixtures, as are items that are identifiable but whose removal would casue considerable damage (e.g. plumbing, heating ducts).
What is the rule on fixtures in common ownership cases?
A common ownership case is one in which the person who brings the chattel to the land owns both the chattel and the land (e.g. X installs a furnace in his home). An item is a fixture if the objective intention of the party who made annexation was to make the item part of the realty. This intention is determined by: the nature of the article; the manner of attachment; the amount of damage that would be caused by its removal; and the adaptation of the item to the use of the realty.

1. Constructive annexation: An article of personal property that is so uniquely adapted to the real estate that it makes no sense to separate (e.g. keys to doors, custom curtain rods) may be considered a fixture even if it is not physically annexed to the property.
What is the rule on divided ownership cases and fixtures?
In divided ownership cases, the chattel is owned and brought to the realty by someone other than the landowner (e.g. tenant, licensee, or trespasser).
1. Landlord-Tenant: An agreement between the landlord and tenant is controlling on whether an annexed chattel is a fixture. Absent an agreement, a tenant is deemed to lack the intent to permanently improve the property, and thus may remove his annexed chattels if removal would not damage the premises or destroy the chattel. Annexed chattels must be removed by the end of the lease term (or within a reasonable time after the termination of an indefinite tenancy), and the tenant is responsible for repairing any damage caused by the removal.
2. Life Tenant and Remainderman: The same rules apply if the life tenant-remainderman context as in landlord-tenant situations, except that the life tenant must remove annexations before the end of his tenancy.
3. Licensee or trespasser and landowner: Licensees are treated much like tenant, whereas trespasers normally lose their annexations. Thus, absent a statue, an adverse possessor or good faith trespasser cannot remove fixtures (e.g. house erroneously constructed on a parcel that possessor believed she owned). Some courts, however, allow good faith trespaser recovery measured by the value added to the land (not construction costs)
What is the rule on third party cases?
1. Third-Party Lien on Land to Which Chattel Affixed: Generally, the mortgageee has no greater rights than the mortgagor. Thus, chattels annexed by the mortgagor;s tenant are generally not within the lien of the mortgagee except where the mortage is made after the lease and the mortgagee is without notice of the tenant's rights.
2. Third-Party lien on Chattel affixed to land: Suppose a landowner affixes a chattel to th eland. The seller of the chattel retains a security interest in the chattel and the landowner mortgages the land. If the landowner then defaults on both the chattel and mortgage payments, as between the seller and the mortagagee, the general rule is that the first to record his interest wins. However, under the U.C.C., a seller winds if the "fixture filing" is recorded within 20 days after the chattel is affixed to the land. The seller must compensate the mortgagee for damage or repair caused by removal.
RIGHTS IN THE LAND OF ANOTHER-EASMENTS, PROFITS, COVENANTS, AND SERVITUTES
GOOD LUCK
What are the things mentioned on the previous card?
Nonposessory interests in land, creating a right to use land possessed by someone else.
What are easements?
An easement holder has the right to use another's tract of land for a special purpose (e.g. to lay pipe, to access road or lake), but has no right to posses or enjoy that land. An easement is presumed to be of perpetual duration unless the grant specifically limits that interest.
What are the types of easements?
1. Most easements are affirmative, which means the holder is entitled to make affirmative use of the servient tenement. Negative easements, which entitle the holder to compel the possessor of the servient tenement to refrain from engaging in an activity on the servient estate (e.g. building a structure in excess of three stories), are generally confined to only four types of easements: 1. for light. 2. For air, lateral support, and flow of an artificial stream.
b.Easement appurtenant: Benefits the holder in his physical use or enjoyment of another tract. Thus there must be 2 tracts: Dominant tenement, and the servient tenement. An easement appurtenant passes with the transfer of the benefited, land regardless of whether it is mentioned in the conveyance. The burden of the easement also passes automatically with the servient estate unless the new owner is a bona fide purchaser with no actual or constructive notice of the easement.
What is an easement in gross?
Right to use the servient tenement independent of his possession of another tract of land, i.e., the easement beneftis the holder rather than another parcel. An easement in gross fro the holder's personal pleaseure (e.g. right to swim in the pond on Blackacre) is not transferable, but one that serves an economic or commercial interest (e.g. right to erect billboards on Blackacre) is transferable.
How is an easement created?
Express Grant: Any easement must be in writing and signed by the holder of the servient tenement unless its duration is brief enough (commonly one year or less) to be outside a particular state's Statute of Frauds' coverage. A grant of easement must comply with all the formal requirements of a deed.
B. Express reservation: An easement by reservation arises when a grantor conveys title to land, but reserves the right to continue to use the tract for a special purpose.

Implication: see next card.
How does an easement arise from implication?
An easement by implication is created by operation of law; it is an exception to the Statute of Frauds. Aside from the easement automatically implied with any grant of a profit, there are two types of easements by implication:
1. Easement implied from existing use ("Quasi-Easement"): Easement may be implied if: 1. Prior to the division of a single tract; 2. An apparant and continuous use exists on the "servient" part; 3. That is reasonably necessary for the enjoyment of the "dominant" part, and; 4. The court determines that the parties intended the use to continue after division of the land.
2. Easement Implied without any existing use: In two limited situations, easements may be implied without prexisting use.
a. Subdivision Plat: When lots are sold in a subdivision with reference to a recorded plat or map that also shows streets leading to the lots, buyers of the lots have implied easements to use the streets to access their lots.
b. Profit a Prendre: The holder of the profit a predre has an implied easement to pass over the surface of the land to use it as reasonably necessary to extract the product.
What is an easement by necessity?
An easement by necessity arises when a landowner sells a portion of his tract and by this division deprives one lot of access to a public road or utility line. The owner of the servient parcel has the right to locate the easement.
What is an easement by prescription?
Acquiring an easement by prescription is analgous to acquiring property by adverse possession. To acquire a prescriptive easement, the use must be: 1. Open and notorious; 2. Adverse; 3. Continuous and uninterrupted; 4. For the statutory period.
Generally, prescriptive easements cannot be acquired in public land.
What is the scope of an easement?
In the absence of specific limitations in the grant, courts assume that the easement was intended to meet both present and future needs of the dominant tenement (e.g. owners may widen to accomodate new, wider cars). If, however, the dominant parcel is subdivided, the lot owners will not succeed to the easement if to do so would unreasonably overburden the servient estate.

What is the rule on Repairs: The servient owner generally may use her land in any way she wishes so long as her conduct does not interfere with performance of the easement. The easement holder has the duty to make repairs to the easement if he is the sole user; but if both parties are using the easement, the court will apportion the repair costs.
What is the rule on termination of easements?
An easement can be terminated in the following ways:
1. Stated conditions: The original eaement grant may specify when or under what conditions the easement will terminate.
2. Unity of Ownership (Merger): If the same person acquires ownership of both the easement and the servient estate, the dominant and servient estates merge and the easement is destroyed. Even though there may be later separation, the easement will not be automatically revived. the unity must be complete (e.g., the holder of the easement must acquire an interest in the servient tenement of equal or greater duration than the duration of the easement privilege).
3. Release: An easement (including an easement in gross, which is otherwise inalienable) can be terminated by a deed of release from the owner of the easement to the owner of the servient tenement.
4. Abandonment: An easement is extinguished when its holder demonstrates by physical action (e.g building a structure that blocks access to easement on adjoining lot) an intent to pemenantly abandon the easement. Merely expressing a wish to abondon does not extinguish the easement; neither does mere nonuse.
5. Estoppel: Oral expressions of an intent to abandon do not terminate an eaement unless committed to writing (release) or accomplished by action (abandonment). But if the owner of the servient estate ganches his position in reasonable reliance on the representations made or conduct by the owner of the easement, the easement terminates through estoppel.
5. Prescription: To terminate an easement by prescription, there must be an adverse, continuous interruption of the use for the prescriptive period (typically 20 years).
7. Necessity: Easements created by necessity expire as soon as the necessity ends.
8. Condemnation or destruction: Condemnation of the servient estate extinguishes all easements. Courts are split as to whether easement holders are entitled to compensation. Involuntary destruction of such a structure does not.
How do licenses differ from easements?
Licenses privilege their holders to go upon the land of another. But unlike an easement, a license is not an interest in the land; it is merely a privilege, revocable at the will of the licensor. A license is personal to the licensee and, thus, inalienable. Any attempt to transfer a license results in revocation by operation of law.

ET: A failed attempt to create an easement results in a license.

a. Irrevocable licenses:
Estoppel If a licensee invests substantial amounts of money or labor in reliance on a license, the licensor is estopped to revoke. the license becomes an easement by estoppel, which lasts until the holder receives sufficient benefit to reimburse him for his expenditures. 2. License Coupled with an Interest: A license coupled with an interest is irrevocable as long as the interest lasts. for example, the vendee of a chattel may enter the seller's land to remove the chattel, and a future interest holder may enter and inspect the land for waste.
What are profits?
Profits entitle the holder of the benefit to take some resources (e.g. soil, timber, materials, fish) from the servient estate. Implied in every profit is an easement entitling the benefit holder to enter the servient estate to remove the resources. All of the rules governing creation, alienation, and termination of easements are applicable to profits. In addition, a profit may be extinguished through surcharge (misuse that overly burdens the servient estate).
What is the rule on covenants running with the land at law (real covenants)?
A real covenant, normally found in the deed, is a written promise to do something on the land (e.g. maintain a fence) or a promise not to do something on the land (e.g. not build a multi-family dwelling). Real covenants run with the land at law, which means that subsequent owners may enforce or be burdened by the covenants.
1. Requirements for the burden to run: 1. Intent: The covenanting parties must have intended that the successors in an intre3st to the covenantor be bound by the terms of the covenant. This intent may be inferred from circumstances surrounding the creation of the covenant, but is usually found in the language of the conveyance itself.
b. Notice: Under modern recording acts, to be bound by a covenant, a subsequent purchaser for value must have had actual, inquiry, or record notice of the arrangement at the time of the purchase.
3. Horizontal Privity: At the time the promisor entered into the covenant with the promisee, the two must have shared some interest in the land independent of the covenant (e.g. grantor grantee, landlord-tenant, mortgagee, mortgagor) (must be original contracting parties).
4. vertical privity: To be bound, the successor in interest to the covenanting party must hold the entire durational interest held by the covenantor at the time he made the covenant.
6. Touch and Concern: Negative covenants touch and concern the land if they restrict the holder of the servient estate in his use of that parcel of land. Affirmative covenants touch and concern the land if they require the holder of the servient estate to do something, which increases his obligations in connection with his enjoyment of the land.
What are the requirements for the benefit to run?
Intent: The covenanting parties must have intended that the successorts in interest to the covanantee be able to enforce the covenant.
Vertical Privity: The benefits of a covenant run to the assignees of the original estate or any lesser estate; i.e. any succeeding possessory estate may enforce the benefit. (benefit can run without horizontal privity)
Touch and Concern: The benefit of a covenant touches and concerns the land if the promised performance benefits the covenantee and her successors in their use and enjoyment of the benefited land.
What is the rule on specific situations involving real covenants?
Generally, promises to pay money to be used in connection with the land (e.g. homeowner's association fees) and covenants not to compete run with th eland. Racially restrictive covenants are unenforceable.
What is the remedy for the breach of a real covenant?
A breach of a real covenant is only remedied by an award of money damages. If injunction is sought then the promise must be enforces as an equitable servitude rather than a real covenant.
What is the rule on termination of a real covenant?
As with all other nonpossessory interests, a covenant may be terminated by: 1. written release; 2. The merger of the benefited and burdened estates, or 3. The condemnation of the burdened property.
What is an equitable servitude?
An equitable servitude is a covenant that, redgardless of whether it runs with the land at law, equity will enforce against the assignees of the burdened land who have notice of the covenant. The usual remedy is an injunction.
ET:
The crucial difference between real covenants and equitable servitudes is the REMEDY SOUGHT. If the remedy sought is money dx then use the real covenant analysis. If a party seeks an injunction then you must consider whether the equitable servitude elements are satisfied. A single promise can create both.
How is an equitable servitude created?
Equitable servitudes are created by covenants contained in a writing that satisfies the SOF. There is 1 EXCEPTION: Negative equitable servitudes may be implied from a common scheme for development of a residential subdivision. Thus, if a developer subdivides land, and some deeds contain negative covenants while others do not, the negative covenants will be binding on all parcels provided there was a common scheme of development and notice of the covenants.
a. Common Scheme: Reciprocal negative servitudes will be implied only if, at the time that sales in the subdivision begin, the developer had a plan that all parcels would be subject to the restriction. The scheme may be evidenced by: 1. recorded plat; 2. a general pattern of restrictions, or 3. an oral representatino to early buyers.

b. Notice: To be bound by a covenant not in her deed, a grantee must have had notice of the covenants in the deed of others in the subdivision. Notice may be actual (direct knowledge of covenants), inquiry (neighborhood appeasr to conform to common restrictions), or Record (prior deed with covenant in grantee's chain of title.).
What are the requirements for the burden to run?
A successor of the promisor is bound if: a. The covenanting parties intended that the servitude be enforced by and against assignees ;
b. The successor of the promisor has actual, inquiry or record notice of the servitude;
c. The covenant TOUCHES AND CONCERNS THE land (i.e. restricts the holder of the servient estate in his use of that parcel)..
What are the requirements for the benefit to run?
The benefit of an equitable servitude runs with the land, and thus is enforceable by the promisee's successors, 1. If the parties so intended, and 2. The servitude touches and concerns the benefited property.
What are equitable defenses to enforcement of equitable servitudes?
A court will not enforce an equitable servitude ifL
a. the person seeking enforcement is violating a similar restriction on his own land (unclean hands);
b. The benefited party fails to bring suit against the violator within a reasonable time (laches); or
e. The neighborhood has changed so significantly that enforcement would be inequitable.
What is the rule on termination of equitable servitudes?
Like other nonposessory interests, an equitable servitude may be extinquished by: 1. Written release from the benefit holders, 2. merger of the benefited and burdened estates or 3. condemnation of the burdened property.
What is the rule on party walls and common driveways?
Courts will treat a wall erected partly on the property of each of two adjoining landowners as belonging to each owner to the extent it rests upon her land. Courts will also imply mutual cross-easements of support, with the result that each party can sue the wall or driveway and neither party can uniaterally destroy it.
1. Creation: A written agreement is required by the SOF for the express creation of a party of a party wall or common driveway agreement, but an "irrevocable license" can arise from detrimental reliance on a parol agreement. Party walls and common driveways can also result from implication or prescription.
2. Running of covenants: If party wall or common driveway owners agree to be mutually responsible for maintaining the wall or driveway, the burdens and benefits of these covenants run to the successive owners of each pperarcel.
What is the rule on party walls and common driveways?
Courts will treat a wall erected partly on the property of each of two adjoining landowners as belonging to each owner to the extent it rests upon her land. Courts will also imply mutual cross-easements of support, with the result that each party can sue the wall or driveway and neither party can uniaterally destroy it.
1. Creation: A written agreement is required by the SOF for the express creation of a party of a party wall or common driveway agreement, but an "irrevocable license" can arise from detrimental reliance on a parol agreement. Party walls and common driveways can also result from implication or prescription.
2. Running of covenants: If party wall or common driveway owners agree to be mutually responsible for maintaining the wall or driveway, the burdens and benefits of these covenants run to the successive owners of each pperarcel.
What is the rule on adverse possession?
In general: Title to real property may be acquired by adverse possession. Title by adverse possession results from operation of the SOL for trespass. If an owner does not, within the statutory period, take action to eject a possessor who claims adversely to th owner, title vests in the possessor.
What is the rule on adverse possession?
In general: Title to real property may be acquired by adverse possession. Title by adverse possession results from operation of the SOL for trespass. If an owner does not, within the statutory period, take action to eject a possessor who claims adversely to th owner, title vests in the possessor.
What are the requirements for adverse possession?
1. Actual Entry
2. Exclussive possession that is;
3. Open and notorious, Adverse (hostile), and continuous for the statutory period.
What are the requirements for adverse possession?
1. Actual Entry
2. Exclussive possession that is;
3. Open and notorious, Adverse (hostile), and continuous for the statutory period.
When does the SOL begin to run for adverse possession?
The SOL begins to run when the true owner can first bring suit. Filing suit will not stop the period from running, however; the suit must be pursued to judgment.
When does the SOL begin to run for adverse possession?
The SOL begins to run when the true owner can first bring suit. Filing suit will not stop the period from running, however; the suit must be pursued to judgment.
What are the requirements tion is for actual and exclusive possession?
An adverse possessor will gain title only to land she actually occupies. In some cases, actual possession of the entire parcel claimed is not necessary. If an adverse possessor actuallly occupies a reasonable portion of the parcel, and her occupation is under color of title to the entre parcel, then she will be deemed to have constructively possessed the entire parcel. "Exclusive" means that the possessor is not sharing with the true owner or the public. Two or more people may obtain title by adverse posession; they take title as TIC.
What are the requirements tion is for actual and exclusive possession?
An adverse possessor will gain title only to land she actually occupies. In some cases, actual possession of the entire parcel claimed is not necessary. If an adverse possessor actuallly occupies a reasonable portion of the parcel, and her occupation is under color of title to the entre parcel, then she will be deemed to have constructively possessed the entire parcel. "Exclusive" means that the possessor is not sharing with the true owner or the public. Two or more people may obtain title by adverse posession; they take title as TIC.