Real Property

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Fee Simple Absolute

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1. Has all possible rights that a person may have in that parcel of land, including: 1) the unimpeded right to sell or convey all or part of the property, and 2) the unimpeded right to devise the property.

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Fee Simple Determinable

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1. A determinable estate terminates automatically on the happening of a named event.
2. The following words are used: for so long as, during, while, until.
3. A determinable estate is followed by a possibility of reverter, which may be implied.

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Fee Simple Subject to a Condition Subsequent

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1. An estate subject to a condition subsequent may be cut short if the estate is retaken by the grantor or a third party on the happening of a named future event.
2. The condition only gives the grantor the right to take the estate, and the estate does not automatically terminate.
3. An estate subject to a condition subsequent is described with the following words: provided, however; however if; but if; on condition that; in the event that.

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Fee Simple Subject to an Executory Interest

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1. An estate that is defeased in favor of a third person on the happening of a named event. This is followed by a shifting executory interest.
2. This is subject to RAP.

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Life Estate

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1. Lasts for the duration of the grantee's life.

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Voluntary Waste

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1. An act that has more than a trivial injurious effect on or change inthe property. Despite the prohibition on voluntary waste, natural resources may be consumed: for the repair and maintenance of the property, with the permission of the grantor, or under the open mines doctrine: if the grantor was exploiting the natural resources of the mine it is presumed that the grantee has the right to continue to exploit it.

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Involuntary Waste/Permissive Waste

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1. Occurs if the life tenant or leasehold tenant permits the premises to fall into disrepair. It may also occur if the tenant fails to pay a mortgage, taxes or the tenant's share of special assessments.

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Ameliorative Waste

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1. Occurs if life tenant increases the value of the premises by permanently altering it. Allowed to commit ameliorative waste if the market value of the remainderman's interest is not impaired, and it is permitted by the remaiderman or a substantial and permanent change in the neighborhood has deprived the property of a reasonable current value.

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Duty to Repair

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1. A life tenant has a duty to maintain the property in a reasonable state of repair, ordinary wear and tear excepted. This duty is limited to the extent of income derived or, if personally occupied, to the extent of the reasonable rental value of the land. The life tenant must also pay taxes, mortgages, and special assessments.

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Fee Tail

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1. In a fee tail general, children of the grantee take when the grantee dies.
2. In a fee tail special, descent is limited to the grantee's descendants by a specific spouse.

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Reversion

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1. A reversion is a future interest retained by the grantor when the grantor transfers less than a fee interest to a third person.
2. A reversion is transferable, devisable, and descendible.
3. Not subject to RAP.

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Possibility of Reverter

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1. A possibility of reverter is a future interest in the grantor that follows a determinable estate.
2. A possibility of reverter can only descend inter vivos, although under the modern trend a possibility of reverter is transferable, devisable, and descendible.
3. The SOL of a possibility of reverter begins as soon as the limitation occurs, because the property automatically reverts to the grantor on the occurence of the limitation.
4. Not subject to RAP.

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Right of Entry

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1. Follows a fee simple or a life estate subject to a condition subsequent.
2. A right of entry is descendible, transferable and devisable.
3. The SOL does not begin to run against a right of entry until the grantor attempts to exercise the right.
4. Not subject to RAP.

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Vested Remainder

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1. A remainder is a future interest created in a third person, which is intended to take after the natural termination of the preceding estate.
2. A vested remainder requires its takers to be ascertained or ascertainable at the time of its creation. There must also not be a condition precedent to taking.
3. A vested remainder is transferable, descendible, and devisable.
4. A remainder that is vested subject to open is a remainder that is made to a class, and has at least one member who is ascertainable and has satisfied any conditions to vesting. This is subject to RAP.
5. A vested remainder subject to total divestment is presently vested but may be terminated on the happening of a future event.

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Contingent Remainder

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1. The takers are unascertainable, or the interest is subject to a condition precedent and, therefore, does not fall in automatically on the natural termination of the previous estate.
2. A condition remainder is transferable, descendible, and devisable.
3. A contingent remainder is subject to the RAP.

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Destructibility of Contingent Remainder

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1. A contingent remainder in real property is destroyed if it fails to vest by the natural termination of the prior vested estate.
2. Doctrine of Merger - If you own all of the present and future estates, merger occurs and the holder of the present and future interest takes in fee simple. Thus, any holders of contingent remainders will have their interest destroyed.
3. If the holder of a present possessory estate surrenders her interest before the contingent remainder vests.

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Executory Interests

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1. An executory interest is a future interest in a third person that cannot become posessory automatically at the natural termination of the previous estate because, it cuts off a previous estate (shifting executory interest), or it does not become presently posessory until some time after the natural termination of the previous estate (springing executory interest).
2. An executory interest is transferable, descendible and devisable.
3. An executory interest is subject to RAP.

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Tenancy in Common

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1. A tenancy in common is a form of concurrent ownership, where each co-tenant owns an undivided interest in the whole property. There is now a presumption of co-tenancy.
2. Tenancy in common requires a unity of possession. This means that each tenant in common has the right to possess the whole of the property.
3. This interest may be passed inter vivos voluntarily and involuntarily, and a tenant in common may descend through intestacy.

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Joint Tenancy

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1. Joint tenancy is a form of concurrent ownership, where each co-tenant owns an undivided interest in the whole of the property and has a right to survivorship.
2. A joint tenancy requires unity of time, unity of title, in equal shares, and each tenant has the right to possess the whole. Some jurisdictions have eliminated the requirements of unity of time and title.
3. A joint tenant may transfer his interest voluntarily or involuntarily, which severs the joint tenancy, but the right of survivorship prevents the property from passing through intestacy.
4. If both tenants join a mortgage then there is no effect on the joint tenancy, however, in title theory states the mortgage severs the joint tenancy, because the interest is transferred to the mortgagee, in lien theory states, the mortgagee only receives a lien on the property and therefore no title transfer, although foreclosures will still sever the tenancy.

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Tenancy by the Entirety

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1. Like a joint tenancy but reserved for married couples. An attempted conveyance of a tenancy by the entirety by either spouse is void.

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Rights and Duties of Co-tenants

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1. Each co-tenant is entitled to possess the whole property.
2. Out of possession tenant has the right to share in rent and profits from third parties, less expenses. However, no right to demand rent from co-tenant, unless the property is exploited in a manner that results in permanent depreciation.
3. Contribution may be compelled for necessary repairs (not true under common law), and in a partition suit costs of repairs may be credited in favor of the co-tenant who repairs.
4. Cannot seek contribution for improvements, unless the improvements increase rents or profits, in which case can only recover in partition suits.
5. A co-tenant who pays a mortgage or taxes may seek contribution or may recover in an accounting or partition suit. but, no separate action to compel contribution, a co-tenant in sole possession will receive reimbursement only to the extent that his payment exceeds the market value of the property.
6. Traditionally physical partition has been preferred, unless a physical partition would be impractical and the interests of the parties would be better served by a sale and division of proceeds.

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Statute of Frauds

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1. A writing is required to transfer an interest in real property, and it must include a description of the property, the parties, the price, and any conditions of price or payment if agreed on.
2. Part Performance - can be used to enforce an oral contract if some of the following is shown: payment of all or part of the purchase price, taking possession, or making substantial improvements.
3. Equitable and Promissory Estoppel may be used if based on an act of representation or if based on a promise, respectively.

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Marketable Title

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1. All contracts for land have an implied promise to convey marketable title, which is title that is reasonably free from doubt, both in law and fact.
2. Title is not reasonably free from doubt if there is defects in the chain of title, such as title by adverse possession, defective execution of deed, significant variation of the description of land from one deed to the next.
3. Encumbrances diminish the value of the property but is consistent with a conveyance, and includes mortgages, liens, easements, covenants and servitudes. An encumbrance that is excepted in a contract may not serve as the basis for finding that title is unmarketable.
4. A significant encroachment renders title unmarketable, a slight encroachment will not.
5. A zoning restriction does not make title unmarketable, however a zoning violation may render title unmarketable.
6. Physical defects such as termites, do not render title unmarketable.

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Duty to Disclose Defects

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1. There is a duty to disclose material latent defects known but not readily observable.
2. Material is often limited to defects that affect health and safety of occupants. However, some states define material to include defects that affect value as well as health and safety.

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Implied Warranty of Quality

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1. Generally applies to the sale of new or remodeled homes. It does not extent to commercial structures. It is imposed on contractors, developers, and other commercial vendors of real property. This covers latent defects caused by poor workmanship, and must be discovered within a reasonable time of construction or remodeling.
2. Most jurisdictions permit the enforcement of an unambiguous disclaimer of the implied warrant of quality.

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Equitable Conversion

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1. A purchaser becomes an equitable owner of title at the time of the execution of a binding contract.
2. Under the Uniform Vendor and Purchaser Risk Act, the risk of loss is placed on the seller, unless legal title or possession of the property has passed to the buyer. This is, however, the minority rule, and vice versa is typically true.

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Seller's Remedies

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1. Expectation Damages - difference between the contract and market price. Some courts allow this to be measured as contract price and resale price.
2. Foreseeable Consequential Damages - such as mortgage interest payments that the seller is required to make after the buyer's breach.
3. Reliance Damages - repairs and costs of inspection.
4. If the buyer breaches may retain the entire amount of the down payment, but no more than 10% of the purchase price.
5. A liquidated damages provision is reasonable and therefore enforceable if the injury caused by the breach is one that is difficult or incapable of accurate estimation, and the liquidated damages are a reasonable forecast of the harm caused.
6. Equitable Relief - Can have specific performance, and can elect to seek rescission of the contract as well.

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Buyer's Remedies

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1. Expectation Damages - measured as the difference between the market and contract price. Some courts measure it as the difference between the resale price and the contract price. The buyer may also recover foreseeable consequential damages.
2. May recover reliance damages, such as the costs of inspection.
3. May seek restitution of the down payment.
4. English Rule - a failure to deliver marketable title will permit buyer to recover the down payment, plus interest and reasonable expenses incurred on title investigation. But cannot receive damages that exceed the down payment amount, unless the seller acted in bad faith or assumed the risk of failing to obtain marketable title.
5. American Rule - not restricted to restitution of down payment, recover expectation damages plus the other costs listed above.
6. May seek rescission of the contract, and can seek specific performance.

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General Warranty Deed

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1. No title defects have occurred during ownership of the property. The seller also warrants that there are no defects in the chain of title from which he derived title.

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Special Warranty Deed

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1. No title defects have occurred during his ownership of the property. The seller does not warrant that there are no defects in the chain of title from which he derived title.

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Quitclaim Deed

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1. Seller does not make any warranties. Instead the grantor simply conveys whatever interest she may have.

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Present Covenants

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1. They are broken, if at all, at the time of conveyance. These are personal and do not run with the land. They include the covenant of seisin, which states that the seller owns and possesses the land granted. Covenant of the right to convey, which states the grantor promises that she has the right to convey the property. The grantor also promises that there are no encumbrances (covenant against encumbrances), which includes, mortgages, liens, taxes, water rights, easements, restrictions on use and leases.

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Future Covenants

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1. Future covenants may be broken after the time of conveyance, and they run with the land.
2. They include: 1) covenant of quiet enjoyment, the granter guarantees that he will assist in defending against lawful claims and will compensate the grantee for losses sustained by an assertion of superior title, 2) covenant of warranty, the grantor warrants that the grantee will not be disturbed by a superior claim, and 3) the covenant of further assurances, the grantor promises to take whatever steps may be required to perfect defects of title.

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Remedies for Breach of Covenants

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1. Generally capped at the amount the grantor received for the property plus interest.
2. For breach of the covenants of seisin, right to convey, general warranty, and quiet enjoyment, the grantee may recover the full purchase price if the conveyance is voided or a percentage thereof if a portion of the conveyance is voided.
3. For a breach of the covenant against encumbrances, damages are measured by the cost of removing the defect, or if this is not possible the diminution in the value of the property.
4. For present covenants, the statute of limitations begins to run when the deed is delivered, for future covenants the limitations does not run until a third party asserts superior title.

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Requirements for Effective Transfer

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1. Donative intent, delivery by handing over the deed, a presumption of which is found if the deed is later found in the grantee's possession, the deed is properly executed and recorded, or the deed contains an attestation clause that attests to the delivery, furthermore handing the deed to the grantor's agent does not constitutes a valid delivery, but to the grantee's agent does, also delivery relates back to the date it is handed to a third party if the grantor relinquishes control, and acceptance.
2. Parole evidence is always admissible to show that a deed absolute on its face is intended as a mortgage. It may be used to show the grantor did not intend the deed to have a present effect. If a deed is delivered with an oral condition the conveyance is valid, but the oral condition may not be proved.

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Types of Leases

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1. Term of Years - A term of years has a definitive beginning and end, no notice is required to terminate a lease for a term of years.
2. Periodic - Has a set beginning date, and continues from period to period without a set termination until proper notice is given. Termination may take place on any date, and the notice period is measured by the rent payment clause.
3. At-will - No fixed duration and lasts only as long as the landlord and tenant desire. Terminates if: 1) either party dies, 2)the tenant commits waste, 3) the tenant attempts to assign his interest, 4) the landlord transfers his interest, or 5) the landlord transfers the premises to a third party for a term of years.
4. Tenant at Sufferance/Holdover Tenant - when a tenant remains in possession after the end of the lease. The landlord may recover possession and receive double rent for the holdover period.

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Tenant's Duties

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1. A tenant has a duty to pay rent. Under the common law the tenant's duty to pay is not relieved from the destruction of the premises, in some jurisdictions the tenant may be relieved if: the tenant leased only a portion of the building or the tenant leased a building without the underlying land.
2. Duty not to commit waste is similar to that of life tenants, but the duty not to commit permissive waste is not limited to the extent of income derived or reasonable rental value when the tenant possesses personally. In addition, a tenant may not commit ameliorative waste.
3. Under an estate theory the tenant was required to make repairs, unless there was an act of God. In contract theory, can contract for how much repair is required. If you say you will make all repairs this includes repairs caused by acts of God.

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Landlord Duties

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1. The landlord has a duty to deliver possession of the premises to the tenant at the start of the term, this requires delivery of actual possession.
2. Typically, state law creates certain duties for the landlord, such as providing running water.
3. The lease document may create duties as well such as keeping the place repaired.
4. Every lease contains a covenant of quiet enjoyment in which the landlord promises that the tenant will not be disturbed by the landlord during his possession of the premises. A tenant may treat the lease as terminated and withhold rent if the covenant of quiet enjoyment has been breached by an actual or constructive eviction.

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Actual/Constructive Eviction

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1. A tenant is actual evicted when the landlord breaches the covenant of quiet enjoyment. Under the majority rule, if a tenant is actually evicted from part of the premises, the tenant is relieved of all liability for rent, even if the tenant continues to occupy the rest of the premises.
2. A tenant may treat the lease as terminated and withhold rent if the landlord breaches the covenant of quiet enjoyment by constructive eviction of the tenant. For constructive eviction to exist the landlord's act must substantially and permanently interfere with the tenant's use and enjoyment of the premises, and the tenant must move out. If a tenant is constructively evicted from part of the premises, the tenant may receive a rent abatement, but is not relieved of all liability for rent.

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Implied Warranty of Habitability

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1. Guarantees that the landlord will deliver and maintain premises that are safe, clean and fit for human habitation. To prove a breach of this warranty, the tenant must show a defect in essential residential facilities. The defect may be patent or latent. The tenant must provide notice of the defect, and allow the landlord reasonable time to make necessary repairs. This claim only applies to residential leases.
2. If the landlord breaches, the tenant is excused from further performance under the lease, the tenant may but need not vacate, the tenant may treat the lease as cancelled and the rent abated, the tenant may seek money damages (difference between value of premises with warranty and without warranty). the tenant may seek reformation or other traditional contract or tort remedies.

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Landlord's Remedies

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1. If the tenant fails to pay rent or commits other material breaches, the landlord may evict the tenant, and/or recover damages from the tenant's breach.
2. If a tenant abandons the premises (which occurs by leaving without intending to return and fails to pay rent), the landlord may retake the premises, ignore an abandonment and continue to hold the tenant liable for rent, or reenter and relet the premises. Under the modern view the landlord actually has a duty to mitigate damages if the tenant abandons.
3. Under the modern approach self help is prohibited. The landlord must seek court action to re-enter the premises. A security deposit may be retained only to the extent necessary to cover actual loss that the deposit was intended to secure.

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Tenant's Remedies

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1. A tenant may vacate the premises and terminate the lease if the tenant has been actually or constructively evicted. Many jurisdictions provide for the ability to withhold rent, and repairing the premises and deducting the cost of repair from subsequent rent payments.
2. A landlord is liable to tenants for injuries caused by the conditions on the premises ONLY when an undisclosed dangerous condition exists that is known or should be known by the landlord and is unknown to the tenant, a condition exists that is dangerous to persons outside of the premise, the premises are leased for admission to the public, parts of the land are retained in the landlord's control but are usable by the tenant, the landlord has contracted to repair, and the landlord has been negligent in making repairs.

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Assignee/Subleasor/Dumpor's Rule

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1. An assignee comes into privity of estate with the landlord. The landlord may sue the assignee, so long as the assignee remains on the premises. The landlord may not sue the assignee after the assignee has transfered the premises to another third person, unless the assignee assumed the duty to pay rent.
2. With a subleasor, absent an express assumption of the duty to pay rent, the landlord may not sue the subtenant directly for rent due.
3. Under Dumpor's Case once waived, a covenant against assignment is unenforceable as to the next assignment, this does not apply to subleases.

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Fixture

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1. A chattel that has become so connected to real property that a disinterested observer would consider the chattel to be part of the realty.
2. A chattel becomes a fixture as part of the land if it, 1) is annexed to the real property, 2) it has been appropriated to the use of the land, and 3) the annexor intends it to be a fixture.
3. An annexed chattel may become a fixture if the chattel is so necessary or convenient to the use of the land that it is commonly regarded as part of the land. In determining whether a chattel has been appropriated to the use of the land, the court will consider the nature of the land or structure to which the chattel is affixed.
4. An owner of a chattel may affix it to land also owned by that person that later becomes encumbered by a mortgage, in that case, the mortgage extends to the fixture, this is also true if the mortgage comes before the chattel becomes a fixture.

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Recording Statutes Generally

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1. Recording statutes generally apply to conveyances of freehold interests, easements, profits, covenants, servitudes, mortgages, assignments, and liens.
2. Recordation will not cure defects in a deed caused by lack of delivery, forgery, or fraud.
3. Under the common law, if two persons claimed title under deeds to one parcel of land, the property was awarded to the person who took the property first in time. This rule still applies if the person who took later in time fails to qualify under the relevant recording statute.

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Race Statute

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1. Under a race statute, the person who records first prevails.

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Notice Statute

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1. Under a notice statute, an unrecorded conveyance or other instrument is invalid as against a subsequent bona fide purchase for value and without notice. To prevail the claimant must prove that: 1) the claimant took subsequent in time to another person claiming ownership of the real property in question, 2) the claimant was a bona fide purchaser for value, and 3) the claimant took the property without actual, constructive or inquiry notice.
2. If full value has not been paid for the property, the majority holds that the buyer is protected pro tanto, which can be accomplished by giving the land to the holder of the outstanding interest and giving the buyer restitution, awarding a fractional interest in the land proportional to the amount paid prior to notice, or allowing the buyer to complete the purchase but to pay the remaining installments to the holder of the outstanding interest.
3. May have actual, constructive or inquiry notice.

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Race-Notice Statute

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1. Under a race-notice statute an unrecorded conveyance or other instrument is invalid against a subsequent bona fide purchaser for value, without notice, who records first.
2. A claimant must prove, 1) the claimant took subsequent in time to another person claiming ownership of the real property in question, 2) the claimant was a bona fide purchaser for value, 3) the claimant took the property without actual, constructive or inquiry notice, and the claimant recorded first.

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Mortgages Generally

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1. The mortgage deed must identify the mortgagor and mortgagee, must describe the property, and must have the intent to create a security interest.

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Mortgage-Related Waste

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1. A person holding a remainder in a mortgaged property has a duty to pay the principal. A life tenant has a duty to pay the interest on the mortgage.
2. The tenant's duty is capped at the rents and profits derived from a third person in possession of the property, or the reasonable rental value of the premises, if the life tenant remains in possession.
3. Absent a leasehold provision to the contrary, a tenant for years or a periodic tenant has no common law duty to make mortgage payments.

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Foreclosure

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1. A mortgagee may obtain a judgment against any person who is personally liable on the obligation and, to the extent that the judgment is not satisfied, foreclose the mortgage on the real estate for the balance, or foreclose the mortgage and, to the extent that the proceeds of the foreclosure sale do not satisfy the obligation, obtain a judgment for the deficiency against any person who is personally liable on the obligation.
2. Proceeds of a foreclosure are distributed in the following order: 1) to the costs of the sale, 2) to the security interest foreclosed, 3) to junior lien holders terminated by the sale, and 4) to the mortgagor, if any proceeds remain.
3. Junior Interests (second or later mortgage) are destroyed by a foreclosure sale, but not extinguished if the junior mortgagee is not made a defendant in the judicial proceedings culminating in the foreclosure sale, and does not get notice. Senior interests not participating in the foreclosure are not affected.

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Priorities

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1. A purchase money mortgage is a mortgage given to a vendor of the real estate or to a third-party lender to the extent that the proceeds of the loan are used to acquire title to the real estate, or construct improvements on the real estate, this is given priority over a lien that attaches to the property through actions of the purchaser/mortgagor, even if the lien was recorded first.
2. If a senior mortgage is modified, a junior mortgage prevails over the modification if the modification materially prejudices the holder of the junior mortgage, such as by increasing the principle or interest rate.

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Transfers

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1. If the mortgagor transfers property subject to the mortgage, and the mortgage payments are not made, the mortgagee may foreclose and force the property to be sold. However, the transferee of the property does not have personal liability for the debt.
2. If the transferee of the mortgaged real property assumes the mortgage and mortgage payments are not made, the mortgagee may foreclose and force the property to be sold, and the transferee of the mortgage has personal liability.

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Adverse Possession

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1. 1) Open, visible and notorious, 2) actual, 3) exclusive, 4) hostile and under a claim of title or right, and 5) continuous for the statutory period.

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Lateral and Subjacent Support

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1. An owner of land has no liability if subsiding of neighboring land is caused by natural conditions on the owner's land. A landowner may be strictly liable if his excavation causes adjacent land to subside. If the adjacent land is improved, strict liability applies only if the adjacent land would have collapsed in its natural state. Even if the adjacent land would not have collapsed in its natural state, the landowner is liable for damages done negligently.
2. The right of support extends to land in its natural state and buildings existing on the date when the subjacent estate is severed from the surface. However, the underground landowner is liable for damages to subsequently erected buildings if he is negligent.

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Water Rights

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1. Riparian rights are rights in water enjoyed by an owner of land that abuts a navigable natural river, stream, or lake. Traditionally, may use as much water as would not interrupt the natural flow of the body of water. This means unlimited use of riparian water for domestic or natural use. However, artificial use such as irrigation, only if the use does not substantially diminish the flow of the body of water.
2. Under the reasonable use doctrine, may use reasonably as long as it does not interfere unreasonably with the rights of other riparian owners. Such reasonable use is restricted to riparian land, which is defined as land lying within the watershed.
3. The prior appropriation doctrine awards the right to use water to the first person to take water for beneficial purposes.
4. Underground streams follow riparian rules.
5. For percolating underground water a possessor of land may take as much of the water percolating under his land as he desires.

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Nature of Easements

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1. An affirmative easement gives the holder the right to do something on the land of another.
2. A negative easement gives the holder the right to prevent a landowner from doing something on his land. A writing is always required for this sort of easement, and the common law only recognizes light, air, water and lateral and subjacent support.
3. An easement appurtenant requires a dominant and servient tenement.
4. An easement in gross is personal in nature, resulting in a servient but not a dominant estate.
5. A profit a prendre is the right to take something from the land of another.

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Creation of an Easement

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1. Easements must satisfy the Statute of Frauds.
2. An easement implied by prior use requires severance of title to land held in common ownership, an existing, apparent, and continuous use when severance occurs (quasi-easement), and reasonable necessity for the use at the time of severance.
3. An easement required by necessity requires severance of title to land held in common ownership; and strict necessity for the easement at the time of the severance.
4. An easement by prescription requires proof of use of the property that is: 1) open and notorious, 2) actual, 3) continuous, 4) hostile, 5) exclusive.
5. Easement by estoppel requires proof of an act or representation by the owner of the burdened estate in respect to the easement, justifiable reliance by the owner of the benefited estate, and damages suffered by the owner of the benefited estate if the easement is not recognized.

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Transfer of Easement

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1. When the dominant tenement is transferred, the benefit of an easement or a profit follows the transferred estate, even if the deed does not specifically mention them. The modern trend has been to allow the transfer of easements in gross if the grantor intends this, and the easement is commercial in nature.
2. In the case of an express easement, transfer of the servient estate will result in an accompanying transfer of the burden, so long as the holder of the dominant tenement has complied with the provisions of the relevant recording statute.

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Termination of an Easement

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1. An easement may be terminated by the end of a specific time period, a release from the dominant estate, estoppel or by prescription.
2. An easement is terminated when the dominant and servient estates come into common ownership.
3. An easement may be terminated by intent which requires proof of intent to abandon and an affirmative act in furtherance of that intent.

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Covenants that Run with the Land

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1. For a covenant to run with the land, there must be 1) a writing, 2) that includes language that shows the intent of the parties for the covenant to run, 3) horizontal privity which is satisfied by a conveyance of land between the covenantee and covenantor, which occurs by the same deed that includes the covenant (under the modern rule horizontal privity is not required for the benefit or burden to run), vertical privity which is privity between the original party and successor in interest -- for this the plaintiff must show that the successor has stepped into the shoes of the original party by taking the entire interest held by the original party (most jurisdictions do not require this for the benefit or burden to run), it must touch and concern the land, and finally there must be notice.

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Equitable Servitude

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1. The court may enforce a covenant as an equitable servitude if the plaintiff can establish at law all the elements for a covenant that runs with the land, but the plaintiff seeks equitable relief, or satisfy the relaxed elements, which are: 1) if the plaintiff cannot show a writing, then he can prove through partial performance or estoppel, 2) intent can be established by showing a common theme, 3) if a jurisdiction requires vertical privity, notice may substitute, 4) must still touch and concern, and 5) notice is determined by recording statute.
2. If the owner of two or more lots, situated so as to bear relation, sells one with restrictions of benefit to the land retained, the servitude becomes mutual, and the owner of the lot or lots retained may not do anything forbidden to the owner of the lot sold, creating an implied recipricol servitude.