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285 Cards in this Set

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Fee Simple absolute (LDTF)
Language: "to A and his heirs" or "to A"

Duration: Absolute ownership of a potentially infine duration

Tranferability: Devisable, descendile, alienable

Future Interest: None
Fee Tail (LDTF)
"To A and the heirs of his body"

Lasts as long as there are lineal blood descendants of grantee

Passes automatically to grantee's lineal descendants

Reversion; Remainder
The Defeasible Fees
Fee Simple determinable

Fee Simple subject to condition subsequent

Fee Simple subject to an excutory interest
Fee Simple determinable (LDTF)
"To A so long as"
"To A until"
"To A while"
(Language of stated event)

Potentially infinite so long as event does not occur

Alien, devisable, descendible subject to condition

Possibility of Reverter
Fee Simple subject to condition subsequent (LDTF)
"To A, but if X event happens, grantor reserves the right to reenter and retake"

Potentially infinite so long as the condition is not breached and, thereafter, until the holder of the right of entry timely exercises the power of termination

Alien, devisable, descendible subject to condition

Right of Entry/Power of Termination
Fee Simple subject to an excutory interest (LDTF)
"To A, but if X event occurs, then to B"

Potentially infinite so long as stated contingency does not occur

Alien, devisable, descendible subject to condition

Executory Interest
Life Estate (LDTF)
"To A for life"
"To A for the life of B"

Measured by life of transferee or by some other life (per autre vie)

Alienable, devisable, descendible subject to condition if pur autre vie and measuring life is still alive

Reversion/Remainder
Estates (list)
Fee Simple absolute

Fee Tail

Defeasible Fees:
1. Fee Simple determinable
2. Fee Simple subject to condition subsequent
3. Fee Simple subject to an executory interest

Life Estate
"To A and his heirs"

A has:

Heirs have:

O has:
A: Fee Simple absolute

Heirs: Nothing (no heirs until dead)

O: Nothing
"To A and the heirs of his body"

A has:

Heirs have:

O:
A: fee simple absolute (fee tail abolished)

Heirs/O: Nothing
Reversion v. Remainder
Reversion: grantor

Remainder: 3rd person
If a putative Fee Simple Determinable does not have clear durational language:
Forfeiture is automatic
Mick Jagger rule of property
You may convey less than what you started with, but can't convey more. In other words, you can't always get what you want
FSDPOR
Frank Sinatra Does not Prefer Orville Redenbacher

Fee Simple Determinable - Possibility of Reverter
"To A so long as premises are used as a recording studio"

A:

O:
A: fee simple determinable

O: possibility of reverter
To A, but if coffee is ever consumed on the premises the grantor reserves the right to re-enter and re-take

A:

O:
A: fee simple subject to condition subsequent

O: Right of Entry/Power of Termination


Bobby Brown: It's my prerogative
To A, but if A performs music on the premises, to B

A:

B:

O:
A: fee simple subject to executory limitation

B: shifting excucutory interest

O: nada
Defeasible fees (two rules of construction)
1. Words of mere desire, hope, or intention are insufficient to create a defeasible fee

2. Absolute restraints on alienation are void
To A so long as she never attempts to sell

A:

O:
A: fee simple absolute (fee simple determinable void for absolute restraint on alienation)

O: nada
To A so long as she does not attempt to sell until 2008

A:

O:
A: Fee Simple determinable

O: Possibility of Reverter
To A for life

A

O
A (the life tenant): life estate

O: Reversion
To A for the life of B

A
B
O
A has a life estate pur autre vie

B: nada

O: reversion
Life Estate- two general rules
1) The life tenant is entitled to all ordinary uses and profits

2) The life tenant must not commit waste (anything to hurt future interest holder)
Three Species of Waste
1) Voluntary or affirmative waste

2) Permissive waste, or neglect

3) Ameliorative waste
Voluntary or affirmative waste
Actual, overt conduct that decrease value

Natural Resources: PURGE

Prior Use
U
Reasonable repairs
Grant
Exploitation (land only suitable for)
Permissive waste, or neglect
Occurs when the land is allowed to fall into disrepair OR life tenant fails to reasonably protect the land

a) must simply MAINTAIN the premises in reasonably good repair

b) obligated to pay all ordinary taxes on the land, to the extent of income or profits from the land. If there is none, pay all ordinary taxes to the extent of the premises rental value
Ameliorative waste
The life tenant must not engage in acts that will enhance the property's value, unless all of the future interest holders are known and consent

(sentimental value honored)
Future Interests in Transferees (list)
1. Vested remainder
2. Contingent remainder
3. Executory Interest
Species of Vested Remainders
1. Indefeasibly vested remainder

2. Vested remainder subject to complete defeasance/total divestment

3. Vested remainder subject to open
Executory Interest (types)
1. Shifting

2. Springing
Remainder
A remainder is a future interest created in a grantee that is capable of becoming possessory upon the expiration of a prior possessory estate created in the same conveyance in which the remainder is created.

1. Remainderman is sociable. He never travels alone. Always accompanies a preceding estate of a known fixed duration. (usually a life estate or a term of years)

2. Remainderman is patient and polite. Remainderman never follows a defeasible fee
Vested (definition)
A remainder is vested if it is both:

- created in an ascertained person

- not subject to any condition precedent
Contingent remainder (definition)
A remainder is contingent if:

- it is created in an unascertained person

- is subject to a condition precedent
To A for life, then to B's first child
- A is alive
- B, as yet, has no children

“to B's first child” is
A contingent remainder (unborn)
To A for life, then to B's heirs
- B is alive

“to B's heirs” is
Contingent remainder (unascertained)
Condition Precedent (definition)
Appears BEFORE the language creating the remainder or is woven into the grant to remainderman
To A for life, then, if B graduate from college, to B
- A is alive
- B is now in high school

“if B graduate from college” is

A
B
O

If B graduates from college during A's lifetime, B has:
“if B graduate from college” is a contingent remainder

A: life estate
B: contingent remainder
O: reversion (if B never graduates from college)

If B graduates from college during A's lifetime, B has: indefeasibly vested remainder
To A for life, and, if B has reached the age of 21, to B
A is alive
B is 19 yrs. Old

“if B has reached the age of 21” is

A
B
O

If B attains the age of 21:
“if B has reached the age of 21” is the condition precedent

A: life estate
B: contingent remainder
O: reversion (if B never reaches 21)

If B attains the age of 21: B's contingent remainder is transformed automatically into an indefeasibly vested remainder
The Rule of Destructibility of Contingent Remainders
“Historically, at common law” a contingent remainder was destroyed if it was still contingent at the time the preceding estate ended.

Abolished

O and heirs hold the estate subject to B's Springing Executory Interest
To A for life, and if B has reached the age of 21, to B
- A has died
- B is 19

Historically, at common law
A
B
O

Today
A
B
O
Historically, at common law
A: nothing (life estate over)
B: nothing (contingent remainder Destroyed)
O: fee simple absoulte

Today
A: nothing
B: springing executory interest
O: hold the estate subject to B's springing executory interest
Rule in Shelley's Case
... to A's heirs (A is alive)

Historically: the present and future interests merged giving A a fee simple absolute

A rule of law, not a rule of construction (would apply even in the face of contrary grantor intent)

Today virtually abolished
“To A for life, then to A's heirs”

Historically
A
Heirs
O

Today
A
Heirs
O
Historically (Rule in Shelley's case)
A: fee simple absolute
Heirs: nothing
O: nothing

Today
A: life estate
Heirs: contingent remainder
O: reversion (A could die without heirs)
Doctrine of Worthier Title
aka rule against a remainder in grantor's heirs

Still alive

Applies when O, who is alive, tries to create a future interest in his heirs. Contingent remainder of heirs is void. Endeavors to promote the free transferability of land.

DOWT is a rule of construction, not a rule of law. Grantor's intent controls
To A for life, then to O's heirs
- O is alive

A
O
O's heirs

If no, DOWT
A
O
O's heirs
A: life estate
O: reversion
Heirs: nothing

If no DOWT
A: life estate
O: contingent remainder
Indefeasibly vested remainder (definition)
The holder is certain to acquire an estate in the future, with no conditions attached

No Strings Attached (N'Sync)
To A for life, remainder to B

A
B
O

If B predeceases A?
A: life estate
B: indfeasibly vested remainder
O: nothing

If B predeceases A: B's future interest passes by his will
Vested remainder subject to complete defeasance/total divestment (definition)
Taking is NOT subject to any condition precedent.

However, his right of possession could be cut short because of a condition subsequent
Comma Rule
When conditional language in a transfer follows language, that taken alone and set off by commas, would create a vested remainder, the condition is a condition subsequent and you have a vested remainder subject to complete defeasance
To A for life, remainder to B, provided, however that if B dies under the age of 25, to C
- A is alive
- B is 20

A
B
C
O

If B is under 25 at the time of A's death:

"provided, however, that if B dies under the age of 25,"
A: life estate
B: vested remainder subject to complete defeasance
C: shifting executory interest
O: reversion

If B is under 25 at the time of A's death: B still takes

"provided, however, that if B dies under the age of 25," is a condition subsequent
To A for life and if B has reached the age of 25, to B
- A is alive
- B is 20

A
B
O

"if B has reached the age of 25":

If B is under 25 when A dies:
A: life estate
B: contingent remainder
O: reversion

"if B has reached the age of 25" is the condition precedent

If B is under 25 when A dies: Estate reverts to O subject to B's springing executory interest
Vested remainder subject to open (definition)
A remainder is vested in a group of takers, at least one of whom is qualified to take possession

But each class member's share is subject to partial dimunition because additional takers not yet ascertained can still qualify as class members
To A for life, then to B's children
- A is alive
- B has two children, C and D

A
B
C
D
O


When does the class close?

What if C or D predeceases A?
A: life estate
B: nothing
C/D: vested remainder subject to open
O: nothing

The class closes at B's death or at A's death (rule of convenience)

Once A dies, a child born of conceived thereafter will not share in the gift unless IN THE WOMB at A's death

If C or D predeceases A their share goes to their devisees or heirs
Vested remainder subject to open

Open
Closed

How do we know when a given class has closed
A class is open if it is possible to enter

A class is closed when its maximum mebership has been set so that persons born thereafter are shut out

We will know when a class is closed by applying the Common Law Rule of Convenience:

The class closes whenver any member can demand possession
Executory Interest (definition)
It is a future interest in a transferee (a third party), which is not a remainder and which takes effect either cutting short some interest in another person ("shifting") or in the grantor or his heirs ("springing")

The Executioner/Dr. Evil
Shifting executory interest
It always follows a defeasible fee and cuts short someone other than the grantor
To A and her heirs, but if B returns from Canada sometime next year, to B and his heirs

A
B
O

RAP?
A: fee simple subject to B's shifting executory interest

B: shifting executory interest

O: nothing

RAP: No, 1 year limit
To A, but if A uses the land for nonresidential purposes at any time during the next 20 years, then to B

A
B
O

RAP
A: fee simple subject to B's shifting executory interest

O: Nothing

RAP: No, 20 yr. limit
Springing Executory Interest (definition)
Cuts short the grantor
To A, if and when he marries
- A is unmarried

A
O

RAP
A: springing executory interest

O: fee simple subject to A's springing executory interest

RAP: No, will know by end of A's life
To A, if and when he becomes a lawyer
- A is in high school

A
O

RAP
A: springing executory interest
O: fee simple subject to A's springing executory interest

RAP: no, know by the end of A's life
The Rule Against Perpetuities (the rule)
Certain kinds of future interests are void if there is any possibility, however remote, that the given interest may vest more than 21 years after the death of the measuring life
RAP (four step)
1. Determine which future interests have been created by the conveyance

2. Identify the conditions precedent to the vesting of the suspect future interest

3. Find a measuring life

4. Ask: We will know, with certainty, within 21 years of the death of our measuring liffe, if our future interest holders can or cannot take?
RAP potentially only applies to

Does not apply to
Does:
- contingent remainders,
- executory interests
- certain vested remainders subject to open

Not:
- any future interest created in grantor
- indefeasibly vested remainders
- vested remainders subject to complete defeasement
To A for life, then to the first of her children to reach the age of 30
- A is 70
- B, her only child, is 29

A:
B:
O:

Do RAP 4 step
A: Life estate
B: nothing
O: reversion


1. Classify future interest: contingent remainder

2. What are conditions precedent? A's death

3. Measuring life: A (conveyance is not B specific)

4. Will we know with certainty: no?

Fertile Octagenarian A could have child now and die in labor so it would not be 30 in 21 years. B could also die within the year.
RAP- 2 rules
1. A gift to an open class that is conditioned on the members surviving to an age beyond 21 violates the common law RAP

2. Many shifting executory interests violate the RAP. An executory interest with no limit on the time within which it must vest violates the RAP
To A for life, then to such of her children as live to attain the age of 30
- A is alive
- A has two children, B and C.
- B is 35; C is 40

A:
B/C:
O:
A: life estate
O: Reversion

B/C: Nothing. There vested remainders subject to open are voided by the common law RAP (bad as to one, bad as to all)
To A and his heirs so long as the land is used for farm purposes, and if the land ceases to be so used, to B and his heirs

A
B
O

RAP 4 step
A: Fee Simple Determinable
O: Possibility of Reverter

B: Nothing. Shifting Executory Interest is voided by RAP

1. Classify: Shifting..
2. Conditions: Ceased to be farmed
3. Measuring life: A (has power to breach)
4. Will we know? No
To A and his heirs, but if the land ceases to be used for farm purposes, to B and his heirs

A
B
O
A: fee simple absolute

B: Nothing (shifting executory interest voided by RAP)

O: Nothing (the strickening of the offensive future interest makes the conveyance gramatically unsound so the entire conditional clause is stricken)
To the American Red Cross, so long as the premises are used for Red Cross purposes, and if they cease to be so used, then to the YMCA

ARC:
YMCA:
O:

RAP?
ARC: fees simple subject to
YMCA's valid shifting executory interest

RAP? Violates, but charity-to-charity exception
4 RAP Reforms
1. "wait and see"/"second look doctrine"
- viewed at end of measuring life

2. USRAP
- Alternative 90 year vesting period

Both "wait and see" and USRAP embrace:

3. Cy pres
- as near as possible, court reform

4. The reduction of any offensive age contingency to 21 years
Concurrent Estates (list)
1) Joint Tenancy

2) Tenancy by the entirety

3) Tenancy in common
Joint Tenancy (definition)
- Two or more owners with the right of survivorship

- A joint tenant's interest is alienable, but not devisable or descendible
Creation of a Joint Tenancy
1) The Four Unities (T-TIP)
T: same Time
T: same Title
I: identical, equal Interests
P: identical rights to Possess the whole

2) Grantor must clearly express the right of survivorship

3) Use of straw transaction
Severance of a Joint Tenancy
SPAM

1) severance and Sale
2) severance and PArtition
3) severance and Mortgage
Severance and Sale (Severance of a Joint Tenancy)
1) A joint tenant can sell or transfer her interest during her lifetime.

- May do so secretly
- Buyer becomes tenant-in-common

2) In equity, a joint tenant's mere act of entering into a contract for the sale of her share will sever the joint tenacny as to that contracting party's interest
O conveys Blackacre to A, B, and C as joint tenants

Each own:

If A sells her interest to D, what is the state of title?

If B dies leaving behind heir, E, what is the state of title?
Each own: a presumptive 1/3rd share pluse the right to use and enjoy the whole

If A sells her interest to D, what is the state of title?
- A severs joint tenancy as to A's interest. B and C still hold 2/3rd as joint tenants and D is their tenant-in-common.

If B dies leaving behind heir, E, what is the state of title?
- C takes B's share and holds 2/3rs with D as tenants-in-common
- E gets nothing
O conveys Blackacre to A, B and C as joint tenants. On Jan 1., A enters into a contract for sale of his interest in joint tenancy with D, with the closing taking place on April 1. When does the severance as to A's interest occur and why?
Janurary 1 under Equitable Conversion

"equity regards as done what ought to be done"
Severance and Partition (Severance of a Joint Tenancy)
Three variations

1) By voluntary agreement

2) Partition in kind
- a judicial action for physical division of property if in the best interest of all parties

3) Forced sale
- Where the land is sold and sale proceeds divided up proportionately (judicial action in the best interest of all parties)
Severance and Mortgage (Severance of a Joint Tenancy)
One joint tenant's excecution of a mortgage or a lien on his or her share will sever the joint tenancy as to that now encumbered share only the minority of states that follow the title theory of mortgages

By contrast, the majority of states follow the lien theory of mortgages, whereby a joint tenant's execution of a mortgage on his or her interest will not sever the joint tenancy
A, B and C are joint tenants. A mortgages his interest. Will this sever the joint tenancy as to A's interest?
Minority: Yes (title theory)

Majority: No (lien theory)
Tenancy by the Entirety
- Only created in Husband and Wife with a right of survivorship

- In those states to recognize the tenancy by the entirety, it arises presumptively unless clearly stated otherwise

- Very protected form of co-ownership (Can't Touch This)

a) creditors of only one spouse can't touch

b) Neither tenant, acting alone, can defeat the right of survivorship by a unilateral conveyance to a 3rd party
A and B, married to each other, own Blackacre as tenants by the entirety. A then secretly transfers his interest to C.

C has
Nothing
Tenancy in Common
1) Each co-tenants owns an individual part and each has a right to posess the whole

2) Each interest is descendible, devisable and alienable. There are no survivorship rights between tenants in common.

3) The presumption favors the tenancy in common
Possession (Rights and Duties of Co-Tenants)
If one co-tenant wrongfully excludes another co-tenant from possession of the whole or any part, he has committed wrongful ouster
Rent from co-tenant in exclusive possession (Rights and Duties of Co-Tenants)
Absent ouster, a co-tenant in exclusive possession is not liable to others for rent
Rent from 3rd parties (Rights and Duties of Co-Tenants)
A co-tenant who leases all or part of the premises to a 3rd part must account to the others and provide them their fair share of the rental income
Adverse Possession (Rights and Duties of Co-Tenants)
Unless he has ousted the other co-tenants, one co-tenant in exclusive possession for the statutory adverse possession period cannot acquire title (lacks hostility)
Carrying Costs (Rights and Duties of Co-Tenants)
Each co-tenant is responsible for his fair share of carrying costs (such as taxes and mortgage interest payments) based upon the undivided share that he holds
Repairs (Rights and Duties of Co-Tenants)
A repairing co-tenant enjoys a right to contribution for reasonable and necessary repairs

Provided that she has notified the other of the need for the repairs
Improvements (Rights and Duties of Co-Tenants)
During the life of the co-tenancy, there is no right to contribution for improvements

However, at partition, the improving co-tenant is entitled to a credit equal to any increase in value caused by her efforts

The "improver" bears fully liability for any decrease in value caused by her efforts
Waste (Rights and Duties of Co-Tenants)
A co-tenant must not commit waste

A co-tenant can bring an action for waste during the life of the co-tenancy
Partition (Rights and Duties of Co-Tenants)
A joint tenant or tenant in common has a right to bring an action for partition
Leasehold/Freehold Estates (List)
1) Tenancy for Years
2) Periodic Tenancy
3) Tenancy at Will
4) Tenancy at Sufferance
Tenancy for Years
This is a lease for a fixed, determined period of time (1 day, 1 month, 1 year)

No notice is needed to terminate

A term of years greater than one year must be in writing to be enforcable (statute of frauds)
Periodic Tenancy (basic)
Day-to-Day; Month-to-Month


This is a lease which continues for successive or continuous intervals until L or T give proper notice of termination

Can be created expressly or impliedly

Terminate through written notice, usually at least equal to length of period itself

Year-to-year tenancy or great only requires 6 month notice

Parties may lengthen or shorten common law notice provisions (freedom of contract)

The periodic tenancy must end at the conclusion of a NATURAL LEASE PERIOD (notice on May 15th for a month to month terminates on June 30)
Periodic Tenancy by Implication
1. Land is leased with no mention of duration, but provision is made for payment of rent at set intervals

2. An oral term of years in violation of the statute of frauds create an implied period tenancy measured by the way rent is tendered
The Tenancy at Will
Tenancy for no fixed period or duration

"To T for as long as L or T desires"

1) Unless the parties expressly agree to a tenancy at will, the payment of regular rent will cause a court to treat tenancy as an implied period tenancy

2) Tenancy at will may be terminated by either party at any time. However, a reasonable demand to vacate is typically required
Tenancy at Sufferance
Created when T has wrongfully held over past expiration of the lease. We give this wrondoer estate to permit L to recover rent

Lasts only until L either evicts T or elects to hold T to a new tenancy
Tenant's liabilities to 3rd parties
1) T is responsible for keeping the premises in reasonably good repair (matter of tort law)

2) T is liable for injuries sustained by 3rd parties invited by T even where L has expressly promised to make all repairs (may sue for indemnification)
T's duty to repair
1) When the lease is silent

- T must maintain the premises and make ordinary repairs
- T must not commit waste

2) T's duty to repair when T has expressly covenated in the lease to maintain the property in good condition for the duration of the lease

- At common law, historically: T was responsible for any loss to the property (including loss attributable to force of nature)

- Today, majority view: T may terminate the lease if the premises are destroyed w/out T's fault
The law of fixtures
- Fixtures walk with the doctrine of waste

- When a a tenant removes a fixture he commits voluntary waste

- A fixture is a once moveable chattel that by virtue of its annexation to realty become part of the property
Tenant's liabilities to 3rd parties
1) T is responsible for keeping the premises in reasonably good repair (matter of tort law)

2) T is liable for injuries sustained by 3rd parties invited by T even where L has expressly promised to make all repairs (may sue for indemnification)
T's duty to repair
1) When the lease is silent

- T must maintain the premises and make ordinary repairs
- T must not commit waste

2) T's duty to repair when T has expressly covenated in the lease to maintain the property in good condition for the duration of the lease

- At common law, historically: T was responsible for any loss to the property (including loss attributable to force of nature)

- Today, majority view: T may terminate the lease if the premises are destroyed w/out T's fault
The law of fixtures
- Fixtures walk with the doctrine of waste

- When a a tenant removes a fixture he commits voluntary waste

- A fixture is a once moveable chattel that, by virtue of its annexation to realty shows the intent to permanently improve the realty

Common examples: heating systemns, customized storm windows, furnace, certain lighting installations

- T must not remove a fixture no matter that she installed it
How to tell a tenant installation qualifies as a fixture?
1) Express agreement controls; the agreement between L and T controls (freedom of contract)

2) In the absence of agreement, T may remove chattel that she has installed so long as removal does not cause substantial harm to the premises

- If removal will cause substantial damage, then in objective judgment T has shown the intent to install a fixture; stays put
T breaches duty to pay rent and is in possession of the premises
- the landlord's only options are to evict through the courts or continue the relationship and sue for the rent due.

- If the landlord moves to evict, she is nonetheless entitled to rent from the tenant until the tenant, who is now a tenant at sufferance, vacates

- Landlord must not engage in self-help (changing locks, forceable removal). Self-help is flatly outlawed and is punishable civilly and criminally
Surrender
Tenant breaches duty to pay rent but is out of possession

- L could choose to treat T abandonment as an implicit offer of surrender which L accepts
- Surrender is where T demonstrates by words or actions that she wishes to give up the leasehold
- If the unexpired term is greater than one year surrender must be in writing to satisfy the Statute of Frauds
T breaches duty to pay rent but is out of possession
SIN

1) Surrender

2) Ignore the abandonment and hold T responsible for the unpaid rent, just as if T were still there. (minority)

3) Relet the premises on the wrongdoer tenant's behlaf and hold him liable for any deficiecny (majory - mitigation principle)
Tenant's Duties
1) T's liability to 3rd parties
2) T's duty to repair
3) T's duty to pay rent
Landlord's Duties
1) Duty to deliver possession

2) The implied covenant of quiet enjoyment

3) Implied warranty of habitability

4) No retaliatory eviction
Duty to Deliver Possession
- The majority rule (English rule) requires that L put T in actual physical enjoyment of the premises. Thus, if at the start of T's lease a prior holdover is still in possession, L is in breach and the new T gets damages

- American rule (minority) does not require that L put T in actual, physical possession. Need only provide T with legal possession
Implied covenant of quiet enjoyment
- Applies to to both residential and commercial leases

- T has a right to quite use and enjoyment of the premises without interference from L

a) Breach by actual wrongful eviction.

b) Breach by constructive eviction
Constructive Eviction
SING

- Substantial Interference
- I
- Notice
- Goodbye

Substantial Interference: attributable to L's action or failure to act (chronic problem)

Notice: T must give L notice of the problem and L must fail to respond meaningfully

Goodbye: T must vacate w/in a reasonable time after L fails to fix the problem

- Landlord in not generally liable for acts of other tenants unless
1) L has a duty not to permit a nuisance
2) L must control common areas
Implied Warranty of Habitability
- Applies only to residential leases

- Not waivable

- Standard: suitable for basic human habitation

- The appropriate standard may be supplied by local housing or independent judicial decision

- The sorts of problems to trigger breach of the implied warranty of habitability include:
1) no heat in winter
2) no plumbing
3) no running water
T's entitlements when the implied warranty of habitability is breached
MR(3)

- Move out and terminate
- Repair and Deduct
- Reduce rent
- Remain in possession

1) Move out and terminate the lease

2) Repair and deduct, allowable by statute in a growing number of jurisdictions. T may make reasonable repairs and deduct their cost from the future rent

3) Reduce rent or withold all rent until the court determinse fair rental value. T must typically place withheld rent in an escrow account

4) Remain in possession, pay rent and affirmatively seek money damages
Assignment v. Sublease
1) In the absense of some prohibition, T may freely transfer his interest in whole (assignment) or in part (sublease)

2) L can prohibit without prior written consent

3) Once L consents to one transfer by T, L waives right to object to future transfers by that T, unless L expressly reserves the right
T has 10 months remaining on a two year term of years. T transfers all 10 months to T2.

This is:

L and T2 are:

L and T1 are:
This is an assignment

L and T2 are in privity of estate
- L and T2 are liable to each other for all of the covenants in the in the original lease that run with the land (promises to pay rent; paint; repair)
- In privity of contract if T2 expressly assumed all promises in the original lease

L and T1 are in privity of contract
- L and T1 are secondarily liable to each other
The sublease
L and sublessee are in neither privity of estate nor privity of contract

- No nexus
- In a sublease, T2 is responsible to T1 and vice-versa
Landlord's Tort Liability
Common Law: caveat lessee
- In tort, L was under no duty to make premises safe

Common Law exceptions: CLAPS
- Common areas
- Latent defects
- Assumption of repairs
- Public use rule
- Short term lease

1) L must maintain all common areas
2) L must WARN T of hidden defects of which L has knowledge or reason to know
3) An L who voluntarily assumes repairs must complete them with reasonable care
4) L who leases public space (convention/museum), and who should know, because of the nature of the defect and the length of the lease, that T will not repair is liable for any defects on the premises
5) L is responsible for any defect which harms T
Affirmative Easements (method of creation)
PING

- Prescription
- Implication
- Necessity
- Grant
Negative Easements
LASS

- Light
- Air
- Support
- Streamwater
- MINORITY: Scenic View
Can be created only by writing signed by grantor

Remedy: injunction or damages
Easement Appurtenant
- Benefits its holder in his physical use or enjoyment of his property

- IT TAKES TWO
1) Dominant tenement which derives the benefit
2) Servient tenement which bares the burden of the easement
A grants B a right of way across A's land so that B can more easily reach his land.

B has
Easement appurtenant to B's dominat tenement
Easement in Gross
Confers upon its holder only some PERSONAL or PECUNIARY advantage that is not related to his use or enjoyment of his land.

Common Examples:
- Billboards (Eat Beans!!!)
- Right to fish or swim
- Utility company laying cable
Transferability of easements
1) The appurtenant easement passes automatically with the dominant tenement, regardless of whether it is even mentioned in the conveyance

- The burden of the easement also passes automatically with the servient estate, unless the new owner is a BFP w/out notice

2) Easement in gross is not transferable unless it is for commercial purposes
A has an easement entitling her to swim in B's lake

B has:

Is it transferable:
Untransferable easement in gross (for personal enjoyment)
Starkist has an easement to use B's lake to fish for bait for Starkist's tuna company

Starkist has:

Transferable?
Transferable easement in gross (for commercial purposes)
Affirmative Easement (by grant)
An easement to endure for more than one year must be in a writing that complies with formal elements of a deed

- Deed of Easement satisfies the Statute of Frauds
Affirmative Easement (by implication)
- Previous use was apparent

- The parties expected that the use would survive division because its reasonably necessary to the dominant land's use and enjoyment
A owns two lots. Lot 1 is hooked up to a sewer drain located on Lot 2. A sells 1 to B, with no mention of B's right to continue to use the drain on 2.

B has
An easement appurtenent created by implication
Affirmative Easement (by necessity)
The landlocked setting: An easement of right of way will be implied by necessity if grantor conveys a portion of his land with no way out except over some part of grantor's remaining land
Affirmative Easement (by prescription)
Must satisfy elements of adverse possession: COAH

- Continuous use for given statutory period
- Open and notrious use
- Actual use
- Hostile use

Permission defeats acquisition of an easement by prescription (no hostility)
Scope of an Easement
Determined by the terms of the grant or the conditions that created it
A grants B an easement to use A's private road to get to B's parcel

B has:

A's parcel is:

Subsequently, B purchases the adjacent lot, with its small marina. May B unilaterally expand the use of the easement to benefit it?
B easement appurtenent to B's dominant land

A's parcel is servient

No, unilateral expansion is not allowed
Termination of an Easement
END CRAMP

- Estoppel
- Necessity
- Destruction
- Condemnation
- Release
- Abandonment
- Merger
- Prescription
Estoppel (Termination of an Easement)
Servient owner materially changes his or her position in reasonable reliance on the easement holder's assurances that the easement will no longer be enforced
A tells B that A will no longer be using her right of way across B's parcel. In reasonable reliance, B builds a swimming pool on B's parcel, thereby depriving A of the easement.

May A enforce the easement?
Easement is terminated by estoppel
Necessity (Termination of an Easement)
- Easements created by necessity expire as soon as the necessity ends

- However, if the easement attributable to necessity, was nonetheless created by express grant, it does not end automatically
O conveys a portion of tract to A, with no means of access except over a portion of O's remaining land. The parties reduce their understanding to express writing. The city then builds a public roadway affording A access.

The easement
Is not terminated by necessity because of the express writing
Destruction (Termination of an Easement)
Destruction of the servient land, other than through willful conduct of the servient owner will terminate the easement
Condemnation (Termination of Easements)
Condemnation of the servient estate by eminent domain will terminate the easement
Release (Termination of Easements)
A written release given by the easement holder to the servient owner terminates
Abandonment (Termination of Easements)
The easement holder must demonstrate by PHYSICAL ACTION the intent to never use the easment again

- Words or nonuse not sufficient
Merger (Termination of Easements)
The easement is extinguised when title to the easement and title to servient land become vested in the same person
Later separation of title causes an extinguished easement to
Nothing (not automatically revived)
Prescription (Termination of Easements)
The servient owner may extinguish the easement by interfering with it in accordance with the elements of adverse possession

Interference that is COAH

- Continuous
- Open and Notorious
- Actual
- Hostile
The License
The license is a mere privilege to enter land for some deliniated purpose

- Not subject to Statute of Frauds
- Freely revocable (unless estoppel)

Classic examples

1) Tickets
2) Neighbors talking by the fence (oral easement unenforcable)
Estoppel (license)
Estoppel will apply to bar revocation only when the licensee has invested substantial money or labor in reasonable reliance on the license's condition
The Profit
- The profit entitles its holder to enter the servient land and take from it the soil, minerals, timber, oil

- The profit shares all the rules of easements
Covenant (definition)
- The covenant is a promise to do or not do something related to land (contractual limitation)

- Can be negative or affirmative
How do you know whether to construe a promise as a covenant or an equitable servitude
Depends on the remedy the plaintiff seeks:

1) Money damages = covenant

2) Injunction = equitable servitude
The elements necessary for the burden to run (Covenant)
WITHN

- Writing
- Intent
- Touch and Concern
- Horizontal + vertical privity
- Notice
Touch and concern (covenants)
The promise must affect the parties' legal relations as landowners and not simply as members of the community at large

- Covenants to pay money to be used in connection with the land (such as homeowner's fees) and covenants not to compete do touch and concern the land
Horizontal privity (Covenants)
- Refers to the nexus between the original promising parties

- Requires that they be in succession of estate:
1) Grantor/Grantee
2) Landlord/Tenant
3) Mortgagor/Mortgagee

- Difficult to establish
Vertical privity (Covenants)
- Refers to the nexus between seller and buyer.

- Simply requires some non-hostile nexus such as
1) Contract
2) Devise
3) Descent

- The only time that vertical privity will be absent is if "buyer" acquired interest through adverse possession
Does the benefit run with the land (Covenants)
WITV

- Writing
- Intent
- Touch and Concern
- Vertical Privity
Equitable Servitudes
- A promise that equity will enforce against successors (injunctive relief)

WITNES
- Writing
- Intent
- Touch and concern
- Notice
- = an Equitable Servitude
Implied equitable servitude
- aka reciprocal negative servitude

- Two elements of the common scheme doctrine

1) When the sales began, the subdivider had a general scheme of residential development which included defendant's lot

2) The defendant lotholder had notice of the promise contained in the prior deeds
Three forms of notice (implied equitable servitude)
1) Actual notice
2) Inquiry notice (neighborhood conforms)
3) Record notice (publicly recorded documents)
Record Notice (implied equitable servitudes)
With respect to record notice, the courts are split

-Some take the view that a subsequent buyer is on record notice of the contents of prior deeds transferred to others by a common grantor

- The better view, taken by other courts, is that the subsequent buyer does NOT have record notice of the contents of those prior deeds transferred to others by the common grantor (better because less bothersome)
Equitable defenses to enforcement of equitable servitude
Changed conditions:

- The changed circumstances alleged by the party seeking release from the terms must be so pervasive that the entire area has changed

- Mere pockets of limited change not sufficient
Adverse Possession
- Possession for a statutorily prescribed period of time can ripen into title

- The elements: COAH
1) Continuous (uninterrupted)
2) Open and Notorious (usual owner)
3) Actual
4) Hostile (no consent)
State of Mind requirement for Adverse Possession
Possessor's subjective state of mind is irrelevant
Tacking (adverse possession)
- Once adverse possessor may tack on to his time with the land his predecessor's time

- So long as there is privity, which is satisfied by any non-hostile nexus such as blood, contract, deed or will

- Tacking is not allowed when there has been ouster
Disabilities (adverse possession)
The statute of limitations will not run against a true owner who is afflicted by a disability at the inception

- Common disabilities include insanity, infancy and imprisonment
Land Conveyance (2 step)
1. The land contract
2. The closing where the deed becomes our operative document
The Land Contract
1) The land K must be:
- in wrting
- signed by the party
- describe the land
- state some consideration
When the land contract overstates the size of the parcel
Specific Performance w/ a pro rata reduction in purchase price
The Doctrine of Part Performance
- Exception to the Statute of Frauds

- If you have two of the three, the doctrine is satisfied and equity will decree specific performance of an oral contract for the sale of land:

1) Buyer takes possession of the land

2) Buyer remits all or part of the purchase price

3) Buyer makes substantial improvements to the premises
Risk of Loss (Land Conveyance)
- Apply the doctrine of equitable conversion ("equity regards as done that which ought to be done")

- Once the K is signed Buyer is owner of the land, subject to the condition that he pay the purchase price at closing

- If, in the interim, the land is destroyed through no falut of either party the Buyer bares the risk of loss unless the K states otherwise
Land Contract (two implied promises)
1) Provide marketable title at the closing
2) Not make any false statements of material fact
Marketable Title
- Title free from reasonable doubt

- Title free from lawsuit and the threat of litigation

- Three circumstances will render title unmarketable

1) Adverse possession (even a portion)

2) Encumberances (mortgages and servitudes)

3) Zoning violations (must VIOLATE)
False Statements of Material Fact
- Majority of states now also hold seller liable for failing to disclose latent material defects

- A general disclaimer of liability will not excuse seller from liability for fraud or failure to disclose
Land Contract's Implied Warranty of Habitability
- Doesn't have one: Caveat Emptor

- Exception: implied warranty of fitness and workmanlike construction applies to the sale of a new home by a builder-vendor
The Closing
- Controlling document is now the deed

- Requires LEAD (Lawful Execution and Delivery)
Lawful Execution of the Deed
- Deed must be in writing
- Signed by the grantor
- Need not recite consideration nor must consideration pass to make a deed valid
- The description of the land does not have to be perfect (law requires only an unambiguous description and a good lead)
Delivery Requirement (Deed)
- Could be satisfied when grantor physically or manually tranfers the deed to the grantor

- Permissible to use mail, an agent or messenger

- Delivery does not necessarily require actual physical transfer of the instrument (itself)

- The standard is a legal standard and is a test solely of present intent. Did grantor have the present intent to be immediately bound irrespective of whether or not the deed itself has been actually handed over

- Express rejection defeats delivery

- Oral conditions drop out when the deed is absolute on its face
Delivery by Escrow
Is permissible

- Grantor may deliver an executed deed to a 3rd party, known as an escrow agent, with instructions that the deed be delivered to grantee once certain conditions are met. Once the conditions are met: title passes automatically to grantee

- If grantor dies or becomes incompetent or is otherwise unavailable before the express conditions are met, title will still pass
Quitclaim
- Contains no covenants.

- Grantor isn't promising that he has title to convey

- Seller did promise implicitly in the land K to prove marketable at CLOSING (short lived- off the hook after)
General Warranty Deed
Warrants against all defects in title including those attributable to grantor's predecessors

- Contains the six covenants
Present Covenants
- Breached, if ever, at the time the deed is delivered

- Statute of limitations for breach of a present covenant begins to run from the instant of delivery

1) Seisin
2) Right to convey
3) Against encumberances
Covenant of Seisin
- Present covenant

- Grantor warrants that he owns the estate he now claims to convey
Covenant of Right to Convey
- Present covenant

- Grantor promises that he has the power to make this conveyance (there are no temporary restraints on grantor's power to sell)
Covenant against Encumberances
- Present Covenant

- Grantor promises that there or no servitudes or mortgages on the land
Future Covenants
- Not breached, if ever, until the grantee is disturbed in possession

- Statute of limitations for breach will not begin to run until that future date

1) Covenant for quiet enjoyment
2) Covenant of warranty
3) Covenant for further assurances
Covenant for Quiet Enjoyment
- Future Covenant

- Grantor promises that grantee will not be disturbed in possession by a 3rd parties lawful claim of title
Covenant of Warranty
- Future Covenant

- Grantor promises to defend grantee should there be any lawful claim of title asserted by others
Covenant for Further Assurances
- Future covenant

- Grantor promises to do whatever future acts are necessary to perfect the title if it later turns out to be imperfect
Statutory Warranty Deed
Provided by statute in many states, deed contains two promises that grantor makes only on behalf of himself (not predecessors)

1) Grantor promises that he hasn't conveyed this estate to anyone other than grantee

2) Grantor promises that the estate is free from encumberances made by grantor
In a Notice jurisdiction who wins?
If B is a Bona Fide Purchaser, B wins regardless of whether or not she records before A does
In a race-notice jurisdiction who wins?
If B is a Bone Fide Purchaser, B wins if she records properly before A does
Recording Acts protect
1) Bona Fide Purchasers
2) Mortgages
Bona Fide Purchser
1) Purchase for value
2) Without notice that someone else got there first
B paid $50,000 for Blackacre, when its fair market value is $100,000. Is B a purcahser for value?
Yes, as long as B remits SUBSTANTIAL pecuniary consideration he qualifies as a buyer for value (bargain basement sale)
B is O's heir, or devisee, or donee. In a recording statute question B?
Loses unless the shelter rule applies

- Recording statutes do not protect donee, devisees or heir unless the shelter rule applies (case of the doomed donee)
Forms of Notice (recording statute)
AIR

- Actual notice
- Inquiry notice
- Record notice
Actual Notice (recording statute)
Prior to closing, B gets literal knowledge of A's existence
Inquiry Notice (recording statute)
- Whatever an exam of the land would reveal

- Buyer of real estate has a duty to inspect the premises before transfer of title, to see, for example, whether anyone else is in possession. If another is in possession, B is in on inquiry notice of that fact, regardless of whether buyer actually bothered to inspect or not

- If a recorded instrument makes reference to an unrecorded transaction, grantee is on inquiry notice of whatever a reasonable follow-up would have revealed
Record Notice (recording statute)
B is on record of A's deed if at the time B takes, A's deed was properly recorded w/in the chain of title
A conveyance of an interest in land shall not be valid against any subsequent purchaser for value, wihout notice thereof, unless the conveyance is recorded
Notice Statute
Any conveyance of an interest in land shall not be valid against any subsequent purchaser for value, without notice thereof, whose conveyance is first recorded
Race-Notice Statute
Chain of Title
To give record notice to subsequent takers, the deed must be recorded PROPERLY within the chain of title, which refers to that sequence of recorded documents capable of giving record notice to later takers

- In most states, the chain of title is established through a title search of the grantor/grantee index
The Shelter Rule
One who takes from a BFP will prevail against any entity the transferor BFP, would have prevailed against. In other words, the transferee "takes shelter" in the status of the transferor even though she otherwise fails to meet the requirements of BFP status
O conveys to A, who does not record. Later, O conveys to B, a BFP, who records. B then conveys to C, a mere donee who has actual notice of the O to A transfer.

A v. C?
C wins (shelter rule)
O sells Blackacre to A, who does not record. Then A sells to B, who does record. O then sells Blackacre to C.

B v. C
C wins

B had a WILD DEED and his recording is a nullity
Rule of the Wild Deed
If a deed, enterned on the records, has a grantor unconnected to the chain of title, the deed is a wild deed. It is incapable of giving record notice of its existence.
In 1950, O owns Blackacre. He is thinking about selling it to X, but for now decides against it. In 1950, X, who does not own Blackacre, sells it anyway to A, who records.

In 1960, O finally sells Blackare to X. X records.

In 1970, X sells Blackacre to B. B records

Who owned Blackacre 1960-1969?

Who owns Blackacre in in 1970?
60-69: A did, because of the rule of ESTOPPEL BY DEED

70: B as long as he is a BFP (A's recording too early, therefore a nullity)
Estoppel by Deed
One who conveys realty in which he has no interest is estopped from denying the validity of that conveyance if he subsequently acquires the interest the he had previously transfered
Mortgage (definition)
A mortgage is the conveyance of a security interest IN LAND, intended by the parties to be collateral for the repayment of the mortgage obligation

Union of two elements:

1) a debt
2) a voluntary transfer of a security interest in debtor's land to secure the debt
Mortgagor/Mortgagee
Mortgagor: debtor

Mortgagee: creditor
Legal Mortgage
The mortgage must be in writing to satisfy the Statute of Frauds:

- A deed of trust
- Sale Leaseback
- The Note
- The Mortgage Deed
- A Security Interest in Land
O owns Blackacre, Creditor lends O a sum of money. The parties understand that Blackacre is the collateral for the debt. Instead of executing a note or mortgage deed, O hands Creditor a deed to Blackacre that is absolute on its face.

This is called:

What if Creditor sells to BFP X?

Parol evidence is?
Called: Equitable Mortgage

BFP X owns the land. O's only recourse as to proceed against Creditor for fraud and to recover the proceeds

As between O and Creditor, Parol Evidence is freely admissible to show true intent
Unless and until foreclosure, debtor-mortgagor has:
title and the right of possession
Unless and until foreclosure, creditor-mortgagor has
a lien, the right to look to the land if there is a default
The mortgage automatically follows
A properly transfered note
The creditor-mortgageee can transfer his interest by
1) Endorsing the note and delivering it to the transferee

OR

2) By executing a separate document of assignment

- If a note is endorsed and delivered, the transferee is eligible to be come a holder in due course
Holder in Due Course
1) Note must be negotiable (made payable)

2) Orignal note must be indorsed by the mortgagee

3) ORIGINAL note must be delivered

4) Transferee must take in good faith w/out notice of illegality

5) Transferee must pay value


Take the note free of any personal defenses that could be raised against the original mortgagor

Still subject to real defense
Personal Defenses
- Lack of consideration
- Fraud in the inducement
- Unconscionability
- Waiver
- Estoppel
Real Defense
MAD FIFI(4)

- Material Alteration
- A
- Duress
- Fraud In the Factum (lie about the instrument)
- Incapacity
- Illegality
- Infancy
- Insolvency
On January 10, Madge took out a $50,000 mortgage on Blackacre with First Bank. First Bank records. Madge sells Blackacre to B. B records

- Does B hold subject to the mortgage in notice jurisdiction? in a race-notice?
Yes. All recording statutes apply to mortgages. Recording puts subsequent buyers on RECORD NOTICE. Bank also won race to record.
On January 10, Madge took out a $50,000 mortgage on Blackacre with First Bank. On Jan 11th, Madge sells Blackacre to B. On Jan 12th, First Bank records. On Jan 13th, B records.

- Does B hold subject to the mortgage in notice jurisdiction? in a race-notice?
Notice J: No, because no record notice

Race-Notice J: Yes, because Bank won race to record
Who is personally liable on the debt if O, our debtor-mortgagor, sells Blackacre to B?
If B has "assumed the mortgage": Both O and B are personally liable. B primarily, O secondarily.

If B takes "subject to the mortgage": B assumes no personal liability. O is personally liable, However, if a recorded mortgage reamains on the land and O does not pay, the Bank may still foreclose
Foreclosure
The mortgagee must foreclose by proper judicial proceeding. At the foreclosure, the land is sold. The sale proceeds go to satisfying the debt.

If less than the amount: the mortgagor brings a personal action against debtor for deficiency judgment

Surplus: junior liens are paid off in order of their priority. Any remaining goes back to debtor
Blackacre has an FMV of $50,000 and is subject to three mortgages. FB, with 1st priority, is owed $30,000. SB, 2nd priority, is owed $15,000, and TB, with third priority, is owed $10,000.

Assume FB forecloses and it is sold for $50,00. How will funds be distributed
Attorney's fee and the expenses of the foreclosure paid off the top. Then any accrued interest on FB's loan. The sale proceeds are then used to pay off the mortgages in the order of their priority. Each claimant is entitled to satisfaction in full before a subordinated leinholder may take
Blackacre has an FMV of $50,000 and is subject to three mortgages. FB, with 1st priority, is owed $30,000. SB, 2nd priority, is owed $15,000, and TB, with third priority, is owed $10,000.

SB forecloses. What happens to FB's mortgage?
Foreclosure will not affect FB's mortgage.

FB's mortgage will continue to exist on Blackacre and in the hands of the foreclosure sale buyer.

Foreclosure sale buyer is not personally liable, but FB may still foreclose

Foreclosure sale buyer has strong incentive to pay off lien.
Effect of Foreclosure on Various Interests
- Foreclosure will terminate interests junior to the mortgage being foreclosed, but will not affect senior interests

- Those with interests subordinate to those of the foreclosing party are necessary parties to the foreclosing action

- The debtor mortgagor is also considered a necessary party and must be joined, particularly if creditor wishes to proceed against debtor for a personal deficiency judgment

- Failure to include a necessary party results in preservation of that party's claim, despite foreclosure and sale. His mortgage will remain on the land
Priorites (foreclosure)
1) As a creditor, you must record

2) Once recorded, priority is determined by the norm of "first in time, first in right"

3) Exception: the purchase money mortgage has superpriority

4) Subordination agreements are permissible
Purchase Money Mortgage
- A mortgage given to secure a loan that enables the debtor to acquire the encumbered land

- If duly recorded, has superpriority upon foreclosure
Redemption in equity
Equitable redemption is universally recognized up to the date of sale.

At any time prior to the foreclosure the debtor has the right to redeem the land and free it of the mortgage

Once a valid foreclosure has taken place the right to equitable redemption is cut off

The right of equitable redemption is exercised by payinf off the missed payment(s) + interest + costs

If the mortgage contains an acceleration clause, the fulll balance + accrued interest + costs must be paid to redeem

The right to redeem may not be waived (clogging)
Statutory Redemption
Recognized in one-half the states, statutory redemption gives the debtor-mortgagor a statutory right to redeem for some fixed period after the foreclosure sale has occurred (typically six months to one year)

Where recognized, statutory redemption applies only after foreclosure has occurred.

The amount paid is usually the foreclosure sale price

In most states to recognize statutory redemption, the mortgagor will have the right of possession during the statutory period

When a mortgagor redeems, the effect is to nullify the foreclosure sale (redeeming owner is restored to title)
Lateral Support
If land is improved by buildings and an adjacent landowner's excavation causes that improved land to cave in, the excavator will be liable only if it acted negligently

Strict liability does not attach unless plaintiff shows that because of defendant's actions, plaintiff's improved land would have collapsed even in its natural state
Riparian doctrine
The water belongs to those who own the land bordering the water course

These people are known as riparains, who share the right of reasonable use of the water

One riparin will be liable if his or her use unreasonably interferes with others use
Prior Appropriation Doctrine
The water belongs initially to the state, but the right to divert it and use it can be acquired by an individual, regardless of whether or not he happens to be a riparian owner

The norm for allocation is first in time, first in line. Thus a person can acqure the right to divert and use water from a watercourse merely by being the first to do so. Any productive or beneficial use of the water, including use for agriculutre, is sufficient to create the appropriation right
Groundwater
AKA: percolating water. Water beneath the surface of the earth that is not confined to a known channel

The surface owner is entitled to make reasonable use of groundwater.

However, the use must not be wasteful
Surface Water
Those which come from rain, springs or melting snow, and which have noy yet reached a natural watercourse or basin

The common enemy rule:

A landowner may change drainage or make any other changes/improvements on his land to combat the flow of surface waters.

Many courts have modified the common enemy rule to prohibit unnecessary harm to the other's land
Trespass
Invasion of property by tangible, physical object

To remove, bring an action for ejectment
Private Nuisance
Substantial and unreasonable interference with another's use and enjoyment of the the land

No nuisance if the problem resuts from the plaintiff's supersensitivity or specialized use
Eminent Domain
Government's 5th Amendment power to take private property for public use in exchange for just compensation

- Explict takings: acts of governmental condemnation

- Implicit or regulatory takings: a governmental regulation that, although not intended to be a taking, has the same effect

The remedy for a regulatory taking; government must either

1) compensate the owner for the taking

2) terminate the regulation and pay owner for damages that occurred while the regulation was in effect
Zoning (defined)
Pursuant to its police powers, government may enact statutes to reasonably control land use
Variance
The principle means to achienve flexibility in zoning.

Proponent must show:

1) Undue hardship
2) That the variance won't work detriment to surrounding property values

The variance is granted or denied by administrative action (typically zoning board)
Nonconforming use
A once lawful, existing use now deemed non-conforming by a new zoning ordinance.

It cannot be eliminated all at once unless just compensation is paid.

Otherwise, it could be deemed an unconstitutional taking
Exactions
Exactions are those amenities that government seeks in exchange for granting permission to build (inherently suspect)

To pass constitutional scrutiny, these exactions must be reasonably related both in nature and scope to the impact of the proposed development
To A for life, then to B

A
B
O

RAP?
A: life estate
B: indefeasibly vested remainder
O: nothing

RAP: No
To A for life, and on A's death, to B, but if B predeceases A, then to C

A
B
C
O

RAP?
A: life estate
B: vested remainder subject to total divestment
C: contingent remainder
O: Nothing

RAP: No
To A for life, then to A's children in equal shares

A
Children
O

RAP?
A: life estate
Children: Vested remainder subject to open
O: nothing

RAP: Yes- as long as the class remains open
To A for life, then to B if B marries C

A
B
O

RAP?
A: life estate
B: contingent remainder
O: possibility of reverter

RAP: Yes
To A for life, then to A's surviving children

A
Children
O

RAP?
A: life estate
B: contingent remainder
O: possibility of reverter

RAP: Yes
To A for life remainder to B and her heirs; but if B predeceases A, then to C and his heirs

A:
B:
C:
O:

RAP?
A: life estate
B: vested remainder subject to total divestment
C: shifting executory interest
O: nothing

RAP: yes
To A when and if he becomes a doctor

A:
O:

RAP
A: springing executory interest
O: fee simple subject to A's springing executory interest

RAP: yes
To A for life, then two years after A's death, to B

A
B
O

RAP?
A: life estate
B: springing executory interest
O: reversion subject to B's springing executory interest

RAP: yes
RAP:

To A for life, then to A's children for their lives; and upon the death of the last survivor, to B
Valid

B's interest is vested
RAP:

To B for life, remainder to those of B's siblings who reach age 21
Valid

B's parents can be used as measuring lives
RAP:

To XYZ Orphanage so long as it is used to house orphans; if it ceases to be so used, then to the American Red Cross
Valid

Charity-to-charity
RAP:

To A for life, and on his death to his wife, W, for life; upon W's death to A's children then living
Valid

No unborn widow problem because the gift is to W, a life in being
RAP:

To X for life, then to Y; but if at her death, Y is not survived by children, then to Z
Valid


Y is the measuring life
To A, but if alcohol is served on the premises during Z's lifetime or within 21 years of Z's death, to B

RAP
Valid

B's interest will vest, if at all, within a life in being plus 21 years
RAP

Trust income to Polo Club. At the death of the survivor of A, B, C, D, E (all babies born on this date at Hospital) the trust will terminate and the corpus will be distributed to Z, his hers, successors or assigns
Valid

Saving clause
RAP

To A for life, then to A's children for their lives, then to B if B is then living, and if B is not then living, to C
Valid

B is the measuring life. B's and C's interests will vest or fail within B's lifetime
RAP

To A for life, then to A's children for their lives; and upon the death of the last survivor, to A's grandchildren
Void

A may have a child after this interest is created, so she could have grandchildren beyond the perpetuities period
RAP

To A for life, then to such of A's children who attain age 25
Void

Age contingency beyond 21 in an open class
RAP:

To Amnesty International so long as the premises are used for Amnesty International purposes; when they cease to be so used, then to Jane Webb
Void

This gift passes from charity to a private person and so not fall within the charity-to-charity exception
RAP

To A for life, then to his widow for life, then to A's surviving descendants
Void

Unborn widow problem
RAP

To M for life, then to M's children for their lives, then to M's grandchildren in fee

- M is 80
Void

Fertilce octogenarian
RAP

To X, but if alcohol is ever served on the premises, then to Y
Void

Future interest following a defeasible fee
RAP

The residue of my estate to my descendants who are living when my estate is distributed
Void

Administrative contingency problem
To B for life, then to such of B's children who become lawyers

RAP
Void

B may have a child born after disposition who becomes a lawyer more than 21 years after B's death
Rule Against Restraints on Alienation
Any restriction on the transferability of legal interests (fee simple, life estate) as opposed to equitable intrest (spendthrift clauses) is void
Types of Restraints on Alienation
1) Disabling restraints, under which attempted transfers are ineffective

2) Forfeiture restraints, under which an attempted transfer forfeits the interest

3) Promissory restraints, under which an attempted transfer breaches a covenant
Disabling Restraints
On any type of legal interest is void
Absolute Restraints
All absolute restraints on fee simple estates are void; thus, the grantee may freely transfer the property.

However, restraints on fee simple estate for a limited time and reasonable purpose are likely to be upheld
Valid Restraints on Alienation
1) Forfeiture and promissory restraints on life estates

2) Forfeiture restraints on transferability of future interests

3) Reasonable restrictions in commercial transactions

4) Rights of first refusal

5) Restrictions on assignment and sublease of leaseholds
RAP

To A for life, then to A's children for their lives, then to B if B is then living, and if B is not then living, to C
Valid

B is the measuring life. B's and C's interests will vest or fail within B's lifetime
RAP

To A for life, then to A's children for their lives; and upon the death of the last survivor, to A's grandchildren
Void

A may have a child after this interest is created, so she could have grandchildren beyond the perpetuities period
RAP

To A for life, then to such of A's children who attain age 25
Void

Age contingency beyond 21 in an open class
RAP:

To Amnesty International so long as the premises are used for Amnesty International purposes; when they cease to be so used, then to Jane Webb
Void

This gift passes from charity to a private person and so not fall within the charity-to-charity exception
RAP

To A for life, then to his widow for life, then to A's surviving descendants
Void

Unborn widow problem
RAP

To M for life, then to M's children for their lives, then to M's grandchildren in fee

- M is 80
Void

Fertilce octogenarian
RAP

To X, but if alcohol is ever served on the premises, then to Y
Void

Future interest following a defeasible fee
RAP

The residue of my estate to my descendants who are living when my estate is distributed
Void

Administrative contingency problem
To B for life, then to such of B's children who become lawyers

RAP
Void

B may have a child born after disposition who becomes a lawyer more than 21 years after B's death
Rule Against Restraints on Alienation
Any restriction on the transferability of legal interests (fee simple, life estate) as opposed to equitable intrest (spendthrift clauses) is void
Types of Restraints on Alienation
1) Disabling restraints, under which attempted transfers are ineffective

2) Forfeiture restraints, under which an attempted transfer forfeits the intrest

3) Promissory restraints, under which an attempted transfer breaches a covenant
Disabling Restraints
On any type of legal interest is void
Absolute Restraints
All absolute restraints on fee simple estates are void; thus, the grantee may freely transfer the property.

However, restraints on fee simple estate for a limited time and reasonable purpose are likely to be upheld
Valid Restraints on Alienation
1) Forfeiture and promissory restraints on life estates

2) Forfeiture restraints on transferability of future interests

3) Reasonable restrictions in commercial transactions

4) Rights of first refusal

5) Restrictions on assignment and sublease of leaseholds