Real Property

Front 1

Present Possessory Estates:

FEE SIMPLE ABSOLUTE

Back 1

• Language: "To A"; "To A and His Heirs"

• Duration: Absolute ownership, of potentially infinite duration

• Transferability: devisable, descendable, alienable

• Future Interests: none

Front 2

Present Possessory Estates:

FEE TAIL

Back 2

• Language: "To A and the heirs of his body"

• Duration: Lasts only as long as there are lineal blood descendants of grantee

• Transferability: Passes automatically to grantee's lineal descendants

• Future Interests: Reversion (if held by grantor): Remainder (if held by 3rd party)

Front 3

Present Possessory Estates:

Defeasible Fee:

FEE SIMPLE DETERMINABLE

Back 3

• Language: "To A so long as …" "To A until" "To A while"

• Duration: Potentially infinite, so long as event does not occur

• Transferability: Alienable, devisable, descendible, subject to condition

• Future Interests: Possibility of reverter (held by grantor)

Front 4

Present Possessory Estates:
Defeasible Fee:
Fee simple subject to a condition subsequent

Back 4

• Language: "To A, but if X event happens, grantor reserves the right to reenter and retake" (Grantor must carve out right of reentry)
• Duration: Potentially infinite, so long as the condition is not breached and, therefore, until the holder of the right of entry timely exercises the power of termination
• Transferability: Alienable, devisable, descendible, subject to condition
• Future Interests: Right of entry/power of termination (held by grantor)
1. Right of entry must be expressly reserved, otherwise it may be construed as an FSA
2. Right of entry may be waived - but inaction itself is not a waiver unless detrimentally relied upon
3. Right of entry (and majority rule) is descendable and devisable but NOT alienable inter vivos. At CL, also was NOT devisable
4. Right of entry is not subject to RAP - Executory interest (the 3rd party analog) IS subject to RAP

Front 5

Present Possessory Estates:
Defeasible Fee:
Fee simple subject to an executory limitation

Back 5

• Language: "To A, but if X event occurs, then to B"
• Duration: Potentially infinite, so long as stated contingency does not occur
• Transferability: Alienable, devisable, descendible, subject to condition
• Future Interests: Executory Interest (held by third party)

Front 6

Present Possessory Estates:
Life Estate

Back 6

• Language: "To A for life"; "To A for the life of B"
• Duration: Measured by life of transferee or by some other life
• Transferability: Alienable, devisable and descendible if pur autre vie (life of another) and measuring life is still alive
• Future Interests: Revision (if held by grantor); remainder (if held by third party)

Front 7

Present Possessory Estates:
Life Estates:
Rights & Duties

Back 7

• Life tenant must pay property taxes on life estate.
• Life tenants are entitled to the ordinary uses & profits from the land, but the life tenant must not commit wste (and hurt future interest holder)

Front 8

Present Possessory Estates:
Life Estates:
Rights & Duties:
Waste

Back 8

1. Affirmative (voluntary waste) - natural resources: may not consume unless:
a. Repair and maintenance
b. expressly granted right to exploit
c. prior to the grant, the land was used to exploit (open mines doctrine)
d. if land only suitable for exploitation
2. Permissive waste - can't allow to fall into disrepair
a. Preserve reasonable state of repair
b. Pay interest on encumbrances (not duty to pay principal)
c. Pay ordinary taxes
d. Special assessments for public improvements paid solely by life tenant if improvements aren't likely to outlast life; otherwise, apportioned appropriately with holders of future interests
e. No obligation to insure premises, but both life tenants and remaindermen have insurable interests
f. No liability under modern view for damages caused by 3rd party tortfeasors; at CL, life tenant was liable
3. Ameliorative waste - can't destroy any property (sentimental value)
a. At CL, life tenant was always liable for improvements; now, can obtain a credit for increased valu

Front 9

Future Interests:
Creation in Grantor

Back 9

1. Possibility of reverter (created only by fee simple determinable)
2. Right of Entry (created only by fee simple subject to condition subsequent)
3. The Reversion (when grantor grants less than they have; usually fee simple absolute and grant of life estate)

Front 10

Future Interests:
Creation in Transferees:
Remainders

Back 10

• Remainders are future interest created in a grantee capable of becoming possessory upon the natural expiration of a prior possessory estate created in the same conveyance (usually life estate or term of years)
• Remainders never follow a defeasible fee
• Remainders never cut short or divest a prior transferee (they are polite & wait their turn)
• Two types: vested, contingent

Front 11

Future Interests:
Creation in Transferees:
Remainders:
Vested Remainder

Back 11

• Two requirements:
1. Must be created in a known, ascertained person
2. Must not be subject to a condition precedent
• 3 types:
1. Indefeasibly vest remainders
2. Vested remainders subject to total divestment
3. Vested remainder subject to open

Front 12

Future Interests:
Creation in Transferees:
Remainders:
Vested Remainder:
Indefeasibly vested remainder

Back 12

• Language: "A for life, remainder to B", A & B still alive
• Holder will certainly acquire in future; if B dies before A, B's remainder will pass via will or intestacy.

Front 13

Future Interests:
Creation in Transferees:
Remainders:
Vested Remainder:
Vested remainder subject to total divestment

Back 13

• Language: "A for life, remainder to B, if B dies before the age of 25, then to C"
• A has life estate, B has vested remainder subject to condition subsequent, C has shifting executory interest, O has reversion.
• Holder's remainder is not subject to a condition precedent, but is subject to a condition subsequent
• Comma rule: if conitional language follows language that taken alone & set off by commas would created a vested remainder, you have a condition subsequent.

Front 14

Future Interests:
Creation in Transferees:
Remainders:
Vested Remainder:
Vested remainder subject to open

Back 14

• Language: "A for life, then to B's children", A is live, B has children C and D.
• C & D eah have a vested remainder subject to open.
• A class is open if it is possible for other's to join; otherwise the class is close.
• CL rule: class closes when any member can demand possession. (thus, class can close at A's death, or at B's death, since B can't have any more children)
• Womb rule: a child in the womb at A's death is part of the class
• If C or D pre-decease A, their share passes to their devisees or heirs.

Front 15

Future Interests:
Creation in Transferees:
Remainders:
Contingent Remainder

Back 15

• Remainder created in an unascertained person OR subject to a condition precedent
i. unascertained person: "A for life, then to B's heirs"
ii. subject to a condition precedent: "A for life, then if B graduates, to B" (B has a contingent remainder, O has a reversion; if B graduates in A's lifetime, B's contingent remainder becomes an infeasibly veste remainder)
• Rule of destructability of contingent remainders: ("A for life, then if B graduates, to B")
i. CL: contingent remainder destroyed if still contigent at end of preceding estate
ii. Modern: if remainder contingent when A dies, O or O's heirs hold until the contingent remainder is satisfied, when B takes
• Rule in Shelley's case: ("A for life, then on A's death, to A's heirs", A is alive)
i. CL: present and future interests merge giving A a fee simple absolute
ii. Modern: A has life estate, A's unknown heirs have contigent remainder, O has reversion (if A dies heirless)
• Doctrine of Worthier Title: ("A for life, then to O's heirs")
i

Front 16

Future Interests:
Creation in Transferees:
Executory Interests

Back 16

• (executioner cuts others' interests short)
• Executory interest: a future interest created in a 3rd party that isn't a remainder bc it cuts short an interest in another person (shifting executory interest) or in the grantor or his heirs (springing executory interest).
• Shifting: always follows a defeasible fee & cuts short someone other than the grantor
i. "To A & his heirs, but if B returns from Canada next year, to B & his heirs". B has a shifting executory interest, A has a fee simple subject to B's shifting executory interest.
• Springing: cuts short grantor's interest
i. "To A, if and when he marries". A has a springing executory interest, O has a fee simple subject to A's springing executory interest (doesn't violate RAP bc A is the life in interest (we'll know by the end of A's life if the condition is met).

Front 17

RAP

Back 17

• Future interests invalid unless it vests (if at all) 21 years of life in being
• Step 1: determine whether RAP applies to the future interest at issue:
i. contingent remainders, executory interests and vested remainders subject to open
ii. NOT grantor's future interest, indefeasibly vested remainders or vested remainders subject to total divestment
• Step 2: Identify conditions precedent to the vesting of suspect future interests (ie, A must die)
• Step 3: Find a measuring life (A) alive at date of conveyance & relevant to conditions precedent
• Step 4: If we don't know w/ certainty w/in 21 yrs of measuring life's death if the future interest holders will take, or who they are, then conveyance violates RAP
• If RAP is violated, then grantor has a reversion
• Charity-charity exception
• Reform: wait & see approach. When the measuring life ends, you determine future interests at that point.

Front 18

RAP:
Common Violators

Back 18

• Executory Interest following a defeasible fee ("to A for so long as no liquor is consumed on the premises, then to B")
• age contingency beyond age 21 in open class ("to A for life, then to those of A's children who attain 25") - some states enacted reforms that reduce these ages to 21
• Fertile Oct - old people can still have kids - some states have set ages at 55 or something close, or admit medical testimony contradicting fertility
• Unborn widow or widower ("To A for life, then to A's widow for life, then to A's surviving issue in fee" is invalid because issue could be the unborn widow's kids that aren't lives in being at the time of A's death. If it were only to A's children, this would be ok because those children are vested when A dies)
• Administrative contingency ("to my issue surviving at the distribution of my estate" because it's possible that estate won't be administered within the time limit)
• Options and rights of first refusal (an option that states "a, his heirs, and assi

Front 19

RAP:
Class Gifts

Back 19

• Bad as to one, bad as to all - class must either close or all conditions precedent must be satisfied or it violates RAP
• Gift to subclass exception - "to A for life, then to A's children for their lives. Upon the death of each of A's children, the corpus is to be distributed to that child's issue, per stirpes" - each subclass gets evaluated separately, so some might pass RAP (i.e., the gifts to issue of A's children living at the time of the disposition are good, but gifts to afterborn issue of children of A violate the Rule)
• Per capita gift exception - can evaluate each member individually if the gift is a fixed amount - ie, "1k to each of my great-grandchildren"

Front 20

Rule against restraints on alienation:
Types of Restraints

Back 20

1. Disabling restraints, under which attempted transfers are ineffective
2. Forfeiture restraints, under which an attempt causes forfeiture
3. Promissory restraints, under which an attempted transfer breaches a covenant

Front 21

Rule against restraints on alienation:
Restraints on a fee simple

Back 21

• All absolute restraints on fee simple estates are void. Grantee can freely transfer
• Restraints for limited time/reasonable purpose ARE allowed
• Judicial enforcement of discriminatory restraints constitutes constitutionally prohibited discriminatory state action and may also violate the fair housing act

Front 22

Rule against restraints on alienation:
Restraints on a life estate

Back 22

• Forfeiture and promissory restraints on a life estate are valid. Disabling restraints are not

Front 23

Rule against restraints on alienation:
Other valid restraints on alienation

Back 23

• Forfeiture restraints on transferability of future interests
• Reasonable restrictions in commercial transactions
• Rights of first refusal
• Restrictions on assignments and sublease of leaseholds (e.g., requiring landlord's consent)

Front 24

Concurrent Estates:
Joint Tenancy

Back 24

• 2 or more own with right of survivorship, when 1 dies the share goes to the survivor - not descendable or divisable
• Requires the "4 unities":
1. Time - same time
2. Title - same title
3. Identical interests
4. Rights to possess the whole
• Grantor must clearly express the right of survivorship because JT is disfavored

Front 25

Concurrent Estates:
Joint Tenancy:
Creating a JT at CL

Back 25

• If grantor wanted to give himself a JT with someone, had to use a straw man

Front 26

Concurrent Estates:
Joint Tenancy:
Severance

Back 26

• 3 ways a JT can be severed
1. Sale
2. Partition
3. Mortgage

Front 27

Concurrent Estates:
Joint Tenancy:
Severence:
Sale

Back 27

• A JT can sell in secret - severs the JT as to the seller's interest; JT is in tact for other parties
• Mere act of entering into a contrat for the sale of her share of a JT severs the JT due to equitable conversion

Front 28

Concurrent Estates:
Joint Tenancy:
Severance:
Partition

Back 28

• 3 methods:
1. By voluntary agreement: peaceful way to end
2. Partition in kind: court orders partition, occurs when large tract of land that is logical to divide
3. Forced sale: proceeds are divided among the tenants, usually occurs when you have a home/dwelling

Front 29

Concurrent Estates:
Joint Tenancy:
Severance:
Mortgage

Back 29

• Majority Rule: Lien theory of mortages, does not sever the JT
• Minority Rule: Title theory of mortgages, does sever JT

Front 30

Concurrent Estates:
Tenancy by the entirety

Back 30

• Recognized in 21 states, presumptively arises in any conveyance to married persons unless clearly stated otherwise. ONLY married persons can have this
• creditors of one spouse can't touch this property
• unilateral conveyance to a 3rd party is not allowed
• severs at death or divorce

Front 31

Concurrent Estates:
Tenancy in Common

Back 31

• 3 features:
1. Each co-tenant owns: individual part and each has a right to the whole
2. Each interest is descendable, divisable, and alienable; no survivorship rights
3. Presumption favors this type (TiC)

Front 32

Concurrent Estates:
Co-Tenant Rights/Duties

Back 32

• Right to possession of the whole
• Wrongfully excluding another from possession is called "Ouster"
• Absent ouster, a co-tenant in exclusive possession is NOT liable to pay rent
• One TiC is entitled to an accounting to obtain rental income from co-tenants who lease all/part of the property
• Adverse possession cannot occur without ouster
• Carrying costs: each co-tenant is responsible for fair share of taxes and mortgage interest based on her share of the property
• Contribution can be obtained from other co-tenants for reasonable/necessary repairs
• No contribution for improvements - however, a credit may be given based on increased value (or could be liable for diminished value as well, when the property is partition-sold)
• Waste: a co-tenant must not commit waste (voluntary, permissive, or ameliorative)
• Partition: A JT or TiC has a right to bring partition action

Front 33

Landlord/Tenant:
Tenancy for years

Back 33

• Creation: Usually created for written leases. Statute of Frauds requires this if lease is > 1 year, states termination date
• Termination: Automatically ends at termination date
• Landlord reserves a right of entry, which allows him to terminate the lease if the tenant breaches any of the lease's covenants
• Failure to pay rent: most jurisdictions allow a landlord to terminate the lease upon failure to pay promised rent even in the absence of a reserved right of entry
• Surrender: a tenancy for years can terminate if the tenant surrends, the landlord accepts, and the same SoF formalities are followed (> 1 year left on lease requires a writing)

Front 34

Landlord/Tenant:
Periodic Tenancies

Back 34

• A lease that continues in successive intervals until LL or tenant give proper notice to terminate (ie m-m, w-w, etc.)
• Creation by:
i. Express Agreement (L leases to T from month to month)
ii. Implication #1: no mention of duration but provision is made for rent payment at set intervals; periodic tenany assume for periods of such intervals
iii. Implication #2: an oral term of years in violation of SoF creates implied periodic tenancy measured by the way rent is tendered.
iv. Implication #3: T holds over after the lease expries and LL treats it as a period tenancy measured by the way rent is now paid
• Termination: normally, it's automatically renewed until proper notice is given. Proper notice usually = one period in advance, though for year-to-year, 6 month's notice is required. Must terminate at natural end of lease period

Front 35

Landlord/Tenant:
Tenancies at Will

Back 35

• Tenancy for no fixed duration, must be expressly agreed to a court will treat payment of rent as an implied periodic tenancy.
• Terminable by either party at any time though a reasonable demand to vacate is usually required
• If LL has the express right in the lease, then both parties have it. If tenant only has right to terminate, then ONLY the tenant has it.

Front 36

Landlord/Tenant:
Tenancies at Sufferance

Back 36

• Creation: when a tenant wrongfully remains in possession after the expiration of a lawful tenancy
• Lasts only until the landlord takes steps to evict. No notice of termination is required

Front 37

Landlord/Tenant:
Holdover Doctrine

Back 37

• If the tenant continues in possession after his right to possession has ended, the landlord may:
1. Evict
2. Bind him to new periodic tenancy (generally same terms)
3. Nonresidential tenants may be held to a new year to year tenancy if the original term was for >= 1 year, or a periodic term based on frequency of rental payments if the original terms was < 1 year.
4. Residential tenants are generally held to a new month to month tenancy REGARDLESS of the original term
5. If the landlord notifies the tenant before the lease expires that occupancy after the termination will be at increased rent, a holdover constitutes acquiesence.
• EXCEPTIONS:
1. Possession for only a few extra hours or leaves some personal property behind
2. Delay is not tenants fault (illness)
3. it is a seasonal lease

Front 38

Landlord/Tenant:
Tenant's Duties:
Liability to 3rd Parties

Back 38

• T is responsible for keeping premises in reasonably good repair
• T is liable for injuries sustained by 3rd licensees, even if LL promised to make repairs

Front 39

Landlord/Tenant:
Tenant's Duties:
Duty to repair

Back 39

• If lease is silent, tenant must maintain premises & make ordinary repairs
• T must not commit waste (voluntary, permissive or ameliorative)
• Law of Fixtures (will be tested w/ waste doctrine): tenants must not remove fixtures (once-movable chattels attached w/ intent to permanently improve realty), even if she installed it, or she commits voluntary waste (fixtures pass w/ land ownership)
• What qualifies as fixtures? Express agreement controls, if no agreement then tenant may remove chattel she installed so long as removal does not cause substantial harm. If harm would result, chattel is a fixture.
• CL: tenant liable for any loss to property including force of nature. Modern: T may end lease if premises destroyed w/o fault of T.

Front 40

Landlord/Tenant:
Tenant's duties:
Duty to pay rent

Back 40

• T breaches duty in possession of premises:
i. LL can only evict through courts or continue relationship & sue for rent (NO SELF HELP, ie changing locks, removing tenant's possessions)
• T breaches duty but isn't in possession: T wrongfully vacations before end of lease.
i. Surrender: T shows by words/actions intent to give up lease. If more than one year left on lease, needs to be in writing. LL lets tenant out of lease.
ii. Ignore (minority view): LL ignores abandonment, holds T responsible for rent
iii. Re-let (majority view): LL must try to re-let, hold T liable for any deficiency

Front 41

Landlord/Tenant:
Landlord Duties:
Possession

Back 41

• Majority rule: LL must put tenant in physical possession of premises. If LL fails to put tenant in possession (ie, a holdover), LL has breached & tenant gets damages.
• Minority rule: LL doesn't have to put tenant in physical possession. LL only needs to provide tenant w/ legal possession (tenant must deal with holdovers)

Front 42

Landlord/Tenant:
Landlord Duties:
Duty of Quiet Enjoyment

Back 42

• Tenant has a right to quiet use & enjoyment of premises w/o interference from LL.
• This is violated when LL wrongfully evicts T or excludes T from premises.
• Includes constructive eviction: (3 elements)
i. Substantial interference due to LL's actions or failure to act,
ii. Notice (T must notify LL of problem & LL must fail to act meaningfully), AND
iii. Vacate: T must vacate w/in a reasonable time after LL fails to correct problem

Front 43

Landlord/Tenant:
Landlord Duties:
Warrant of Habitability

Back 43

• Only applies to residential leases & is non-waivable
i. premises must be fit for basic human habitation (bare living requirements are met). These may be supplied to local housing code or case law (ie plumbing, heat etc.)
ii. Tenant's remedies: may move out, repair deficiency & deduct from rent, reduce/withhold rent until court determines fair value (may have to put in escrow), OR remain & pay rent & sue for damages

Front 44

Landlord/Tenant:
Landlord Duties:
Retaliatory Eviction

Back 44

• If T reports LL for housing code violations, LL can't penalize tenant by evicting T, raising rent, etc.

Front 45

Landlord/Tenant:
Assignments

Back 45

• A complete transfer of the entire remaining term = assignment
1. Assignee and landlord are in privity of estate and each is liable for all covenants in the lease that run with the land (promise to pay rent, repair, etc.) (covenants that run with the land if original parties so intend and covenant touches and concerns the land)
2. Original tenant & LL are in privity of K, and original tenant is secondarily liable to LL.
3. T1 assigns to T2, T2 assigns to T3, LL and T3 are in privity of estate, LL and T1 are in privity of K, T2 and LL aren't in any privity

Front 46

Landlord/Tenant:
Subleases

Back 46

• If grantor retains any part of the remaining term, the transfer is a sublease
1. Sublessee is not personally liable to the landlord for rent or any cotenants in the main lease unless the sublessee expressly assumes the covenants
2. Landlord's remedies: Sublease is terminated if the landlord terminates the main lease
3. Rights of sublessee: Sublessee cannot enforce covenants, except a residential sublessee may be able to enforce the implied warranty of habitability against the landlord
4. New tenant is responsible to original tenant, original tenant is responsible to LL

Front 47

Landlord/Tenant:
Covenants against assignment or sublease

Back 47

• Lease covenants restricting assignment and sublease are strictly construed against the landlord (a covenant prohibiting assignment does not prohibit subleasing, e.g.)
• Waiver: a valid covenant against assignment is considered waived if the landlord was aware of the assignment and did not object
• Transfer in violation of lease: transfer is not void, but landlord usually may terminate the lease OR sue for damages

Front 48

Landlord/Tenant:
Assignments by Landlords

Back 48

• Landlord may assign the rents and reversion interest he owns. This is usually done by deed when the landlord conveys a building to a new owner. Tenants' consent is not required
• Rights of assignee against tenants: tenants must pay to new landlord once they get notice; benefit of all tenant covenants that touch and concern the land runs with the landlord's estate to the new owner
• Liabilities of assignee to tenants: assignee must perform covenants; original landlord is ALSO liable

Front 49

Landlord/Tenant:
LL's Tort Liability:
Liability at CL

Back 49

• CL, LL had no duty to make premises safe. Six exceptions:
1. Concealed dangerous condition (latent defect) if landlord knows or should know about it; If tenant accepts the premises after disclosure, she assumes the risk and the landlord is not liable to her OR others
2. Common areas: landlord must maintain common areas
3. Public use: landlord is liable for injuries to members of the public if, at the time of the lease, he:
i. Knows or should know of a dangerous condition
ii. has reason to believe the tenant may admit the public before repairing the condition; and
iii. fails to repair the condition
4. Furnished short-term residence: stricter duty, liable for injuries resulting from any defect whether or not he knew of the defect
5. Negligent repairs by landlord: if landlord undertakes repairs, he is liable for an injury for negligently done repairs, or deceptive appearance of safety
6. Landlord contracts to repair: If the landlord covenants to repir, he is liable for injuries resulting from his

Front 50

Landlord/Tenant:
LL's Tort Liability:
Modern Liability

Back 50

• Modern trend: landlord owes general duty of reasonable care: liable for ordinary negligence if he had notice of the defect and an opportunity to repair it
1. Defects arising after tenant takes possession: tenant not liable for defects arising after the tenant takes possession unless the landlord knew or should've known of them
2. Legal duty to repair: If landlord must repair (housing codes, e.g.), he's liable for injuries resulting from his failure to repair/negligent repair
3. Security: Some courts hold landlords liable for injuries to tenants caused by failure to comply with housing codes, maintain ordinary security measures, or provide advertised extraordinary security measures

Front 51

Servitudes:
Easements

Back 51

• Definition: the grant of a nonpossessory property interest that entitles the holder to use of a servient tenement's land (ie RR tracks, access ways, utility lines, etc.)
• Forms of easements:
1. Affirmative = holder entitled to use the servient tenement (some part of it)
2. Negative easements = entitles the holder to compel the possessor of the servient tenement to refrain from engaging in an activity on the servient estate, usually involving: (i) light; (ii) air; (iii) lateral/subjacent support; (iv) for flow of an artificial stream. Negative easements MUST be created by express writing (no natural/automatic right)
• Types of easements:
1. Easement appurtenant to land
2. Easement held in gross

Front 52

Servitudes:
Easements:
Easement Appurtenant

Back 52

• Must have two tracts of land: the dominant tenement & servient tenement
• Easement benefit passes with the land, regardless of whether it is mentioned in the conveyance
• Easement burden also passes automatically with the servient estate unless the new owner is a BFPwith no actual/constructive notice of the easement

Front 53

Servitudes:
Easements:
Easement in Gross

Back 53

• Easement that benefits the holder rather than a parcel of land; only 1 parcel of land is involved (the servient tenement)
• Examples: right to fish in another's pond, right to place a billboard on another's land, etc.
• Easements in gross aren't tranferable unless its for commercial purposes

Front 54

Servitudes:
Easements:
Creation

Back 54

1. Express Grant: same formal requirements as a deed, namely, signature of the grantor and description, easements for more than 1 year requires writing (SoF)
2. Express reservation: grantor conveys title to land but reserves right to continue to use the tract for a special purpose; can't reserve easements for other people
3. Implication: easement can be implied from existing use if:
i. prior to the division of a single tract
ii. an apparent and continuous use exists on the servient part
iii. that is reaonably necessary for the enjoyment of the dominant part; and
iv. the court determines the parties intended use to continue after division of land
4. Necessity: an easement will be implied if grantor conveys/sells a portion of land w/ no access except over a separate part of grantor's land for access across grantor's land
5. Prescription (like adverse possession)
i. Open and notorious
ii. Adverse
iii. Continuous and uninterrupted
iv. Statutory period

Front 55

Servitudes:
Easements:Scope of easements

Back 55

• Absent specific agreement, an easement is assumed to be intended to meet both present and future needs (can widen it to accommodate new, wider cars, etc), but if dominant tenement owner buys an adjacent parcel of land, can't expand easement use to accommodate this
• Appropriate remedy for servient owner in the case of misuse of an easement is an injunction, not termination of easement

Front 56

Servitudes:
Easements:
Termination

Back 56

1. Estoppel: If owner of servient estate reasonably relies on oral representations or conduct by easement owner that he won't enforce easement, it is terminated
2. Necessity: easements created by necessity end as soon as the necessity ends
3. Destruction: servient land destroyed (not by owners wilfull conduct), easement ends
4. Condemnation: condemnation of the servient estate by eminent domain
5. Release: written release by easement holder to servient owner
6. Abandonment: holder must demonstrate by physical action an intent to permanently abandon (ie, building a barrier;- words/nonuse do not suffice
7. Merger same person acquires both estates, easement is destroyed
8. Prescription: servient owner may end easement by interfering with it in accordance w/ elements of AP

Front 57

Servitudes:
Licenses

Back 57

• Licenses privilege their holders to go upon the land of another.
• Licenses subject to SoF (doesn't need to be in writing, may be oral)
• Revocable at the will of the licensor
• Personal, not alienable; attempts to transfer result in revocation by law
• A failed attempt to create an easement = a license
• Estoppel can bar revoation of a license only if licensee has invested substantial money or labor in reliance on license

Front 58

Servitudes:
Profits

Back 58

• Entitle the holder to take some resources from the servient estate
• May be extinguished through surcharge (overusing the benefit)
• The profit shares all the rules of the easements

Front 59

Servitudes:
Covenants

Back 59

• Definition: writing promise to do/not do something related to the land; unlike easements, it isn't a grant of a property interest but rather a contractual limitation
• Covenants may be negative (restrictive) or positive (obligatory)

Front 60

Servitudes:
Covenants vs. Equitable Servitudes

Back 60

• Equitable servitude vs. Covenants: if P seeks money damages, construe as covenant. If P seeks injunction, construe as equitable servitude

Front 61

Servitudes:
Covenants:
Burdens running w/ land

Back 61

• Always do burden analysis first
• Does covenant's burden run from A to A1? ("WITHN")
1. Writing: original promise must have been in writing
2. Intent: original parties intended for covenant burden to run (may be inferred; courts are generous)
3. Touch & concern land: Negative covenants restrict holder in his use of that parcel; affirmative covenants require holder to do something which increases his obligations in relation to the land
4. Horizontal & Vertical privity
i. Horizontal: at time promisor entered into covenant with promisee, the two must have shared some interest in the land independent of the covenant (grantor-grantee, landlord-tenant, mortagee-mortgagor) (hard to prove, absence may be reason burden doesn't run)
ii. Vertical privity: non-hostile nexus between A & A1 (K, devise, descent, NOT AP)
5. Notice: successor had notice of burdened land when she took it (actual, inquiry, or record) (must be purchaser for VALUE)

Front 62

Servitudes:
Covenants:
Benefits running w/ land

Back 62

• Does covenant's benefit run from B to B1? ("WITV")
1. Writing: original promise between A&B must have been in writing
2. Intent: original parties A&B intended the benefit to run
3. Touch & Concern: same as above
4. Vertical privity: non-hostile nexus between B & B1
• Horizontal privity not required

Front 63

Servitudes:
Covenants:
Specific covenants, Remedies, and Termination

Back 63

• Promises to pay money to be used in connection with the land = run with the land
• Covenants not to compete = run with the land
• Racially restrictive covenants = unenforceable
• Remedies: Breach of real covenants can be remedied with money damages; injunctions are only available for equitable servitudes
• Termination: written release, merger of benefitted and burdened estates, condemnation of burdened estate.

Front 64

Servitudes:
Equitable Servitudes

Back 64

• Defintion: a promise that equity enforces against successors, accompanied by injunctive relief

Front 65

Servitudes:
Equitable Servitudes:
Creation

Back 65

• Creation: "WITNES"
• Writing: generally must satisfy SOF. EXCEPTION: negative equitable servitudes may be implied from a common scheme for development of a residential subdivision
• Intent: parties intended that promise would bind successors
• Touch & Concern: the pomise affects the parties as land owners
• Notice: to be bound by covenant not in her deed, grantee must have had notice of the covenants by actual notice, inquiry, or record

Front 66

Servitudes:
Equitable Servitudes:
Creation by Implication

Back 66

• Common scheme doctrine:
1. When sales began, subdivider A had a general scheme of residential development which included B's lot, AND
2. D lotholder B had notice of promise contained in prior deeds. Three ways to prove:
i. actualy notice: D had literal knowledge of promises in prior deeds
ii. inquiry notice: neighborhood conforms to common restriction
iii. record notice: (minority view) sometimes imputed to buyers on basis of all available public documents, (majority view) buyer doesn't have record notice of prior deeds transferred to others by common grantor (less burdensome to D's title searcher)

Front 67

Servitudes:
Equitable Servitudes:
Running of Burden/Benefit

Back 67

• Requirements for burden to run:
1. Intent
2. Notice (actual, inquiry, record)
3. Touch and concern
• Requirements for benefit to run
1. Intent
2. Touches and concerns

Front 68

Servitudes:
Equitable Servitudes:
Defenses

Back 68

• Unclean hands (violating a similar restriction on his own land)
• Acquiescence
• Estoppel (act in a way that makes the other think the servitude as abandoned)
• Laches (Benefited party fails to bring suit against violator w/in a reasonable time)
• Neighborhood has changed so significantly that enforcement would be inequitable

Front 69

Servitudes:
Equitable Servitudes:
Termination

Back 69

1. Written release
2. Merger
3. Condemnation

Front 70

Adverse possession

Back 70

• 4 elements: ("COAH")
1. Continuous throughout statutory period
2. Open & Notorious: use actual owner would make; must be sufficient to put true owner on notice
3. Actual: must be literal entry onto lan, can't be symbolic/constructive
4. Hostile: possessor can't have owner's consent; possessor's state of mind is irrelevant
• Tacking: one adverse possessor may tack on time w/land to a predecessor's time as long as there is privity (ie blood, contract, deed, will). Ouster breaks privity.
• Disability: statute of limitations won't run against a true owner who is afflicted by a disability at the state of the AP (ie insanity, infancy, imprisonment). If disability occurs midway through, AP clock runs.
• Property taxes: usually not required but such payment = evidence of claim of right
• Can't adversely possess against the government

Front 71

Land Conveyance:
The Land Contract

Back 71

• 4 Elements:
1. Must be in writing
2. Must be signed by the party to be bound
3. Must describe the land
4. Must state some consideration.
• Exception to SoF writing requirement: need 2/3
1. Buyer takes possession
2. Buyer pays all or part of purchase price
3. Buyer makes substantial improvements
• If land described in K is more than actual size of parcel, you get SP w/ proportional reduction in price

Front 72

Land Conveyance:
The Land Contract:
Risk of loss

Back 72

• Majority: risk on buyer if property destroyed before closing (buyer gets insurance proceeds if seller receives them though); some states change this
• Passage on death: if seller dies, his heirs must give up title to the buyer at closing; if buyer dies, his heirs or devisees can demand conveyance at closing

Front 73

Land Conveyance:
The Land Contract:
Marketable title

Back 73

• Land Ks contain implied warranty for marketable title (need not be perfect, but free of unreasonable risk of litigation)
• Title can be unmarketable if:
1. Defects in chain of title can make title unmarketable (AP, future interests)
2. Encumbrances make title unmarketable unless buyer waives; includes mortgages, liens, restrictive covenants, easements, servitudes
3. Zoning restrictions do not affect marketability; existing zoning violations DO impair marketability (no matter how minor)
• Seller promises not to make any material lies/omissions (ie fails to disclose latent/material defects). Language "property sold as is" won't excuse.
• Land K contains NO warranties of fitness/habitability (CL caveat emptor: "buyer beware").
• Modern exception: warranty of fitness & workmanlike construction applies to sale of new home by builder.

Front 74

Land Conveyance:
The Land Contract:
Marketable Title:
Timing/Remedy

Back 74

• Time of marketability
1. At closing: If seller agrees to furnish marketable title at closing date, buyer cannot rescind before that date
2. Installment land contract: seller need not furnish marketable title until time of last payment
• Remedy if title not marketable: buyer must notify, give seller reasonable time to cure; if seller fails, buyer may:
i. rescind
ii. damages
iii. specific performance with abatement
iv. quiet title suit
• If closing occurs, K & deed merge,seller's liability on the implied K warranty ends
• Quitclaim deeds dont effect warranty to provide marketable title - don't be tricked

Front 75

Land Conveyance:
The Land Contract:
Time of performance

Back 75

• Presumption that time is NOT of the essence unless otherwise stated; must be tendered (e.g. 2 months) in a reasonable time after closing date
• Presumption overcome when:
i. Contract states time is of the essence
ii. Circumstances indicate that it was the parties' intent OR
iii. 1 party gives the other notice that time is of the essence
• Liability: party who fails to tender on closing date is in breach and may not enforce the contract; even if time is not of the essence, a party who is late in tendering performance is liable for incidental losses

Front 76

Land Conveyance:
The Land Contract:
Ttender of performance

Back 76

• Buyer's obligation to pay & seller's obligation to convey are concurrent conditions; thus, neither breaches until the other tenders performance, even if closing date has passed. If neither tenders, closing date is extended until one does

Front 77

Conveyance:
The Land Contract:
Remedies for breach

Back 77

• Nonbreaching party can get damages or specific performance
• If buyer wishes to proceed despite unmarketable title, she can usually get specific performance with an abatement of the purchase price
• Liquidated damages - Courts routinely uphold such earnest money if the amount appears reasonable in light of anticipated/actual damages

Front 78

Land Conveyance:
The Closing

Back 78

• Deed passes legal title from seller to buyer
• Must be lawfully executed & delivered

Front 79

Land Conveyance:
The Closing:
Deed Lawfully Executed

Back 79

• 3 Requirements:
1. Must be in writing
2. Signed by grantor (no need to cite consideration)
3. Description of land doesn't need to be perfect, but needs to be unambiguous & provide a "good lead" (ie "All of O's land in Orange County", not "some of O's land")

Front 80

Land Conveyance:
The Closing:
Deed Lawfully Executed:
Defective Deeds

Back 80

• Void deeds (forced, never delivered or obtained by fraud) automatically set aside by court even if property has passed to a BFP
• Voidable deeds (executed by minors, obtained by duress, mistake, etc.) set aside by court only if property hasn't passed to BFP
• Fraud: a deed may be set aside by grantor's creditors if it was made with the intent to hinder, delay or defraud the creditor OR without receiving good value for the land & the grantor is insolvent.

Front 81

Land Conveyance:
The Closing:
Delivery Requirement

Back 81

• Grantor physically or manually transfers deed to grantee
• Its permissible to use a messenger
• Actual physical transfer of instrument not required
• Standard for delivery is a legal standard; must ask "did grant have the intent to be bound, irrespective of whether or not the deed was physically handed over"?
• Recipient's express rejection of the deed defeats delivery; otherwise acceptance is presumed
• Oral conditions accompanying deed transfer are void
• Delivery by escrow is allowed; deed is delivered when conditions are met

Front 82

Land Conveyance:
The Closing:
Covenants for Title:
Quitclaim Deed

Back 82

• Contains no covenants, grantor isn't even promising he has title to convey.
• Grantor DID promise at least marketable title AT closing.
• Prior to closing, grantor is on the hook; grantor not liable for any problems that show up after closing.
• Quitclaim deed merely releases any interest grantor has in land.

Front 83

Land Conveyance:
The Closing:
Covenants for Title:
General Warranty Deed

Back 83

• Warrants against ALL defects in title, even those due to grantor's predecessors
• Contains 6 covenants: (1st 3 are present covenants & are breached at delivery, if ever; 2nd 3 are future covenants & are breach if grantee is disturbed in possession)
1. Covenant of Seisin: grantor promises he owns the estate
2. C of Right to Convey: grantor promises he has the right to transfer (no restraints on alienability, grantor is of legal age, sound mind, etc.)
3. C against encumbrances: no servitudes or mortgages on land, etc.
4. C of quiet enjoyment: grantor promises grantee won't be disturbed in possession by a third party's lawful claim of title
5. C of warranty: grantor promises to defend grantee from any lawful claim of title by third party, and to compensate grantee for any loss sustained by claim of superior title
6. C for further assurances: grantor promises to do whatever necessary to remedy flawed title

Front 84

Land Conveyance:
The Closing:
Covenants for Title:
Special Warranty Deed

Back 84

• Created by statute; in states with a statutory special warranty deed, when the word "grant" is used, grantor makes two promises but makes no representations on behalf of his predecessors in interest:
1. Grantor promises he hasn't conveyed land to anyone other than grantee
2. Land is free from encumbrances made by grantor

Front 85

Recording Systems

Back 85

• O conveys to A, then later conveys to B a BFP. Two types of recording systems:
1. Notice jurisdiction: B wins regardless of whether or not he recors before A
2. Race-notice jurisdiction: B wins if he records before A

Front 86

Recording Systems:
BFP

Back 86

• Two requirements:
1. Purchases land for value (donee, devisee heirs not protected unless shelter rule applies)
2. w/o notice that someone else got their first (actual, inquiry - duty to inspect land, record - if previous buyer records, present buyer has notice)

Front 87

Recording Systems:
Chain of Title Problems

Back 87

1. Shelter Rule: One who takes from a BFP will prevail against anyone the BFP would have prevailed against
2. Wild Deed Problem: Wild deeds can't give notice; must make sure chain of title is properly recorded
3. Estoppel by Deed: One who conveys title he doesn't have interest in is estopped from denying the conveyance if he later gains title. However, a subsequent BFP would win out.

Front 88

Mortgages

Back 88

• Definition: conveyance of a security interest in land, intended by the parties to be collateral for the repayment of the debt; mortgages are thus the union of debt & a voluntary lien to secure the debt.
• Debtor: one who takes out the mortgage
• Creditor: one who lends the money
• Mortgage must be in writing to satisfy SoF
• Mortgage also called: note, deed of trust, sale leaseback, mortgage deed, security interest in land

Front 89

Mortgages:
Equitable Mortgage

Back 89

• Definition: an exchange of a loan for a deed
• Parol evidence admissible to show parties intent
• If creditor sells to 3rd party BFP, 3rd party owns land & debtor can only sue creditor for fraud & recovery of sale proceeds

Front 90

Mortgages:
Parties' Rights

Back 90

• Debtor: Until foreclosure, debtor has title & right to possess
• Creditor: Has a lien
• "Due on Sale" clauses are valid (ie mortgage due on sale of land)

Front 91

Mortgages:
Interest Transfers:
Transfer by Mortgagee

Back 91

• Creditor can transfer by endorsing the note & delivering it to a transferee
i. Transferee is eligible to become a holder in due course (transferee takes the note free of any personal defenses that could have been raised against the original mortgagee, including lack of consideration, fraud in inducement, unconscionability, waiver and estoppel). Holder in due course can still foreclose the mortgage despite any such defenses.
ii. Holder in due course still subject to real defenses (material alteration, duress, fraud in factum, incapacity, illegality, infancy, insolvency)
iii. Requirements to be holder in due course: note must be negotiable made payable to named mortgagee, need original note endorse & signed by named mortgagee, delivery of original note to transferee (no copies), transferee must take note in good faith w/o notie of illegality, and transferee must pay value for note.
• Creditor can also transfer mortgage by executing a separate document of assignment

Front 92

Mortgages:
Interest Transfers:
Transfer by Mortgagor

Back 92

• If debtor-mortgagor sells now mortgaged land:
i. Lien remains on the land so long as the mortgage was properly recorded
ii. The new buyer takes subject to a properly record lien
iii. Recording statutes apply to mortgages as well as land sales
iv. Buyer that purchases mortgaged land may not be subject to lien depending on recording statute present (ie he beats bank to record, he will win in either jurisdiction)

Front 93

Mortgages:
Interest Transfers:
Transfer by Mortgagor:
Liability

Back 93

• If buyer has "assumed the mortgage", both debtor & buyer are personally liable, buyer primarily, debtor secondarily
• If buyer takes "subject to the mortgage", buyer assumes no liability, debtor personally liable, BUT if recorded, the mortgage sticks with the land (if debtor doesn't pay, bank can foreclose)

Front 94

Mortgages:
Foreclosure

Back 94

• Court-enforced judicial action, land is sold & proceeds go to debt in this order:
1. Attorneys fees & foreclosure expenses are paid first
2. First priority mortgage completely takes full debt share first, then second priority mortgage, etc.
3. If proceeds < amount owed, mortgagee brings deficiency action against debtor
4. If proceeds > amount owed, junior liens are paid in order of priority
5. If there is any surplus, it goes to the debtor

Front 95

Mortgages:
Foreclosure:
Possesion before foreclosure

Back 95

• Theories of Title: mortgagee may have a right to take possession before foreclosure, depending on the theory the state follows
i. Lien: mortgagee only holds security interest, can't enter before foreclosure
ii. Title: Legal title is in the mortgagee, can possess before foreclosure
iii. Intermediate: legal title is in the mortgagee upon default (works about like title theory)
• Consent & abandonment: mortgagee may take possession if the mortgagor gives consent to do so, or if the mortgagor abandons the property
• Risks of mortgagee in possession: Duty to account for rents, duty to manage property prudently, potential tort liability

Front 96

Mortgages:
Foreclosure:
Effect on Various Interests

Back 96

• Foreclosure terminates interests junior to the mortgage being foreclosured, but not senior interests. Those w/ lesser interests to the foreclosing party are necessary parties (including the debtor) and must be included in a foreclosure action or else their mortgage claims to the land will remain after the foreclosure.
• Foreclosure doesn't affect senior interests to the mortgage being foreclosed. The buyer at the sale will take subject to senior interests (and isn't personally liable to the debt). If the senior mortgage isn't paid, however, the senior creditor can foreclose on the land.

Front 97

Mortgages:
Foreclosure:
Priorities

Back 97

• As a creditor, you must record; until you do, no priority
• Priority: first in time = first in right
• Purchase money mortgage: a mortgage given to secure a loan that enables the debtor to acquire the encumbered land. If you lend money specifically to allow another to purchase land, you get super-priority over other general creditors on that land.
• Subordination agreements: a senior creditor may agree to subordinate priority to a junior creditor

Front 98

Mortgages:
Foreclosure:
Redemption

Back 98

• Redemption in Equity: any time prior to foreclosure sale, debtor can redeem land
i. done by paying off missed payments & interest & costs owed
ii. Once a valid foreclosure has taken place, right to eqtuiable redemption is gone
iii. Acceleration clause: on default, creditor can collect full balance, interest & costs
iv. "clogging the equity of redemption": debtor can't waive right to redeem mortgage in event of a default
• Statutory Redemption: right to redeem after foreclosure for a time period (~6 mos)
i. amount to be paid: foreclosure sale price (rather than original debt)
ii. during the statutory period, debtor has right to possess land
iii. when debtor redeems, it undoes/nullifies the foreclosure sale

Front 99

Lateral/Subjacent Support

Back 99

• Lateral Support: ownership of land includes the right to have the land supported in its natural state by adjoining land
i. Support of land in natural state - landowner is strictly liable if excavation causes adjacent land to subside
ii. Support of land with buildings: strictly liable if land would have collapsed in natural state, otherwise negligence
• Subjacent Support: An underground occupant of land must support the surface; liability for subsequently erected buildings requires negligence

Front 100

Water Rights

Back 100

• Two main systems for determining water allocation
1. Riparian (water belong to those who own the land bordering the watercourse)
i. Reasonable use theory: Riparians share right of reasonable use of water and are liable to other Riparians if their use reasonably interferes w/ another's use.
ii. 6 factors: alteration of flow, purpose of use, pollution, extent of use, destination of water taken, and misc conduct that may give rise to legislation
2. Prior appropriation: Water belongs to state, right to divert can be acquired by an individual regardless of Riparian status.
i. Rights are determined by priority of beneficial use (first in time = first in right)
ii. Can acquire fr any productive/beneficial use (ie agriculture)
• Groundwater: Surface owner entitled to make reasonable use (can't be useful)
• Surface waters: considered enemey, can change land to combat its flow unless it causes unnecessary harm to another's land

Front 101

Right to exclude

Back 101

• Possessor of real property has the right to exclude others.
• Remedies:
1. Trespass
2. Private nuisance
3. Continuing trespass
4. Ejectment or unlawful detainer

Front 102

Takings

Back 102

• 5th A allows govt to take private property for public use for just compensation
• Denial of all economic value = taking
• Denial of nearly all = balancing test
• Remedy: if regulation constitutes a taking, the gov will be required either to compensate the owner for the property or to terminate the regulation and pay the owner damages for the temporary taking

Front 103

Zoning

Back 103

• State/local govt may use police powers to enact statutes that control land use
• Variance (principal means to achieve flexibility in zoning): permission to depart from the requirements of a zoning ordinance. Must show:
i. must show unde hardship by zoning
ii. must show that the variance won't decrease neighboring property values
iii. variance is granted or denied by administrative action (ie a zoning board)
• Nonconforming use: once lawful existing use now deemed unconforming by a new zoning ordinance (can't be eliminated all at once unless compensation is paid - otherwise would be a taking)
• Exactions: amenities that govt seeks in exchange for granting permission to build (ie demands to put in new streetlights, wider roads, parks, etc.). To pass Constitutional scrutiny, must be reasonably related both in nature & scope to impact of proposed development.