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Real Property

Real Property

by Bennettju, Jul. 2014

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	Present Possessory Estates in Land Fee Simple Absolute	A fee simple absolute is the largest estate recognized by law. It can be sold, divided, devised or inherited and has an indefinite or potentially infinite duration. Today, a fee simple is PRESUMED in the absence of express contrary intent (i.e., words of inheritance are no longer necessary). The whole "bundle of sticks." To create: "To A and his heirs..." or just "To A..."
	Present Possessory Estates in Land Defeasible Fees (Overview)	Types of defeasible fees: 1) Fee simple determinable (and possibility of reverter) 2) Fee simple subject to condition subsequent (and right of entry) 3) Fee simple subject to an executory interest (and executory interest)
	Present Possessory Estates in Land Fee Simple Determinable	A fee simple determinable terminates upon the happening of a stated event and AUTOMATICALLY reverts to the GRANTOR. It is created by durational language, e.g., "for so long as," "while," "during," or "until." (But note that mere statements of purpose, e.g., "to be used for," do NOT create a FSD--the grantee can do whatever he wants with it.) A fee simple determinable can be conveyed, but the grantee takes subject to the estate being terminated by the specific event. The corresponding interest in the grantor is a Possibility of Reverter, which automatically reverts the property to him upon the happening of the stated event. P.o.R. is transferable, descendible and devisable.
	Present Possessory Estates in Land Fee Simple Subject to Condition Subsequent	A fee simple subject to a condition subsequent is an estate in which the grantor RESERVES the right to terminate the estate upon the happening of a stated event; thus, the estate does NOT automatically terminate--the grantor must take action. Created by use of conditional words, e.g., "upon condition that," "provided that," "but if," etc. The corresponding future interest in the grantor is the Right of Entry. (Grantor must take action to enforce this--the estate does not automatically revert.) Most courts hold that they are devisable, and all courts agree they are descendable.
	Present Possessory Estates in Land Fee Simple Subject to Executory Interest	If a fee simple terminates upon the happening of a stated event and then passes to a THIRD PARTY rather than reverting to the grantor (FSD) or giving the grantor a right to terminate (FSSTCS), the third party has an EXECUTORY INTEREST. Ex. 1: "To A and his heirs for so long as liquor is not sold on the premises; in that event, to B." B has an executory interest. Ex. 2: "Blackacre to XYZ Church, but if it is used for anything other than church purposes, then to B." B has an executory interest. Once the event/condition happens, the third party's interest AUTOMATICALLY springs to life--i.e., they don't have to take action.
	Present Possessory Estates in Land Defeasible Fees (Conditions and Limitations Violating Public Policy)	Conditions or limitations that violate public policy enerally are struck down, and the grantee takes free of the restraint. If the purpose is to PENALIZE marriage or to encourage divorce, it will likely be struck down. If the purpose is to give support until marriage or in the event of divorce, it will likely be upheld.
	Present Possessory Estates in Land Fee Tail	The fee tail is an estate where inheritability is limited to lineal heirs. It is created by the words: "to A and the HEIRS OF HIS BODY." Most jurisdictions have abolished the fee tail, and an attempt to create one results in a fee simple.
	Present Possessory Estates in Land Life Estate (by Grantee's Life)	A life is estate is one measured by the life or lives of one or more persons. It may be created by operation of law (e.g., dower) or by conveyance. The usual life estate is measured by the life of the grantee (e.g., "to A for life"). Created by language such as "to A for life" or "to B after the life of A." Typically, a life estate is indefeasible (i.e., it ends only when the life tenant dies). But it is possible to create life estates that are defeasible in the same way fee estates can be (i.e., determinable, condition subsequent, or executory interest.)
	Present Possessory Estates in Land Life Estate (Pur Autre Vie)	A life estate "pur autre vie" is measured by the life OTHER than the grantee's (e.g., "to A for the life of B"). A life estate pur autre vie also results when the life tenant conveys his life estate to another (e.g., if A, the holder of a life estate, conveys his interest to B, B has a life estate for the life of A).
	Present Possessory Estates in Land Life Estate (Rights and Duties of Life Tenant--General Rule)	A life tenant is entitled to any ORDINARY uses and profits of the land, but cannot do anything that injures the interests of a remainderman or reversioner. A future interest holder may sue for damages or to enjoin such acts, and if she spends money to perform the life tenant's obligations, she is entitled to reimbursement.
	Present Possessory Estates in Land Life Estate (Rights and Duties of Life Tenant--AFFIRMATIVE Waste)	Exploitation of natural resources (e.g., minerals) by a life tenant is generally limited to situations when: - Necessary for repair or maintenance of the land; - The land is suitable only for such use; or - It is expressly or impliedly permitted by the grantor. Under the OPEN MINES doctrine, if mining was done on the land prior to the life estate, the life tenant can continue mining, but is limited to the mines already open.
	Present Possessory Estates in Land Life Estate (Rights and Duties of Life Tenant--PERMISSIVE Waste)	A life tenant is obligated to: - Preserve the land and structures in a reasonable state of repair; - Pay INTEREST (but not principal) on mortgages; - Pay ordinary TAXES on the land; and - Pay special assessments for public improvements of short duration. Permissive waste occurs when a life tenant fails to do these things. However, this duty is limited to the extent of the income or profits generated from the land (or to its reasonable rental value, if there is no income or profit). A life tenant is NOT onligated to insure the premises for the benefit of remaindermen and is not responsibile for damages caused by a third-party tortfeasor.
	Present Possessory Estates in Land Life Estate (Rights and Duties of Life Tenant--AMELIORATIVE Waste)	Ameliorative waste is a change that BENEFITS the property economically. This waste was actionable at common law, but now a life tenant may alter or even demolish existing buildings if: - The market value of the future interests is not diminished; and EITHER - The remaindermen do not object; or - A substantial and permanent change in the neighborhood conditions (e.g., change from residential to 90% industrial) has deprived the property in its current form of reasonable productivity or usefulness. Note: If the land is practically worthless in its present state, the life tenant may seek a partition sale, the proceeds of which are put in trust with income paid to the life tenant.
	Present Possessory Estates in Land Life Estate (Renunciation of a Life Estate)	If a life tenant who receives the estate by will or intestacy renounces his interest, the future interest following the life estate is generally accelerated so that it becomes immediately possessory.
	Future Interests in Land Reversions	A reversion is the estate left in a grantor who conveys less than she owns (e.g., O conveys just "to A for life;" O has a reversion). i.e., what the grantor keeps when he doesn't transfer all the sticks. It arises by operation of law; it does not have to be expressly resered. A reversion is alienable, devisable, and inheritable. Its holder can sue for waste and for tortious damage to the reversionary interest.
	Future Interests in Land Reversionary Interests (Overview)	Three kinds of reversionary interests: 1) Possibility of Reverter 2) Right of Entry 3) Reversion All reversionary interests are VESTED and, thus, not subject to the Rule Against Perpetuities.
	Future Interests in Land Remainders (General Rule)	A remainder is a future interest in a THIRD PERSON that can become possessory on the natural expiration of the preceding estate. It cannot divest a prior estate, and it cannot follow a time gap after the preceeding estate. A remainder must be EXPRESSLY CREATED in the instrument creating the preceding possessory estate. Good Example: O conveys "to A for life, then to B and his heirs." B has a remainder. Bad Example: O conveys "to A for life, then to B and his heirs one day after A's death" -- B does NOT have a remainder b/c of the gap. Typically (or only) follows life estates.
	Future Interests in Land Remainders (Indefeasibly Vested Remainder)	A vested remainder is one created in an EXISTING and ASCERTAINED person, and NOT subject to a condition precedent. The remainderman has a right to immediate possession upon normal termination of the preceeding estate. An indefeasibly vested remainder is a vested remainder that is not subject to divestment or diminution.
	Future Interests in Land Remainders (Vested Remainder Subject to Open)	This is a veested remainder created in a CLASS of persons (e.g., "children") that is certain to become possessory, but is subject to diminution (e.g., by the birth of additional persons who will share in the remainder as a class. Ex.: O conveys "to A for life, then to the children of B." A and B are living and B has one child, C. C has a vested remainder subject to open (if B has more kids during A's life).
	Future Interests in Land Remainders (Vested Remainder Subject to Total Divestment)	This is a vested remainder that is subject to a condition subsequent. Example: O conveys "to A for life, then to B and his heirs; but if B dies unmarried, then to C and his heirs." B has a vested remainder subject to complete divestment by C's executory interest.
	Future Interests in Land Remainders (Contingent Remainder - General Rule)	Contingent remainders are those created in UNBORN or UNASCERTAINED persons, or subject to a condition PRECEDENT.
	Future Interests in Land Remainders (Contingent Remainder - Subject to Condition Precedent)	A condition is precedent if it must be satisfied before the remainderman has a right to possession. Ex. 1: O conveys "to A for life, then to B and his heirs IF B marries C." B's remainder is contingent b/c he must marry C before he can take possession." Ex. 2: O conveys "to A for life, then to B and his heirs if B marries C, otherwise to D and his heirs." B and D have ALTERNATIVE contingent remainders.
	Future Interests in Land Remainders (Contingent Remainder - Unborn or Unascertained Persons)	A remainder created in unborn or unascertained persons is contingent b/c until the remainderman is ascertained, no one is ready to take possession if the preceding estate ends. Ex.: O conveys "to A for life, then to the children of B." If B is childless at the time of the conveyance, the remainder is contingent.
	Future Interests in Land Remainders (Contingent Remainder - Destructibility)	At common law, a contingent remainder was destroyed if it failed to vest before or upon the termination of the preceding freehold estate. Ex.: O conveys "to A for life, then to B if she reaches age 21." If A dies before B reaches age 21, B's remainder is destroyed. Most states have abolished the destructibility rule. In those states, B's interest in the above example would be converted to an executory interest upon A's death b/c it will divest O's reversionary estate when B turns 21.
	Future Interests in Land Remainders (Contingent Remainder - Merger)	When one person acquires all of the present and future interests in land except a contingent remainder, under the common law, the contingent remainder is destroyed. Ex.: O conveys "to A for life, then to B's children." If, before B has any children, O purchases A's life estate, O will have a life estate pur autre vie and a reversion. These interests merge, and the contingent remainder in B's unborn children is destroyed. Note: You can't have merger if the life estate and the next vested interest were created by the same instrument. Merger may occur only when one person later acquires immediately successive estates.
	Future Interests in Land Remainders (Rule in Shelly's Case)	At common law, if the same instrument created a life estate in A and gave the remainder only to A's heirs, the remainder was not recognized, and A took the life estate and the remainder. Ex.: O conveys "to A for life, then to B for life, then to the heirs of A." The Rule transforms the reaminder in A's heirs into a remainder in A. The Rule in Shelley's Case has been abolished in most states.
	Future Interests in Land Remainders (Doctrine of Worthier Title)	Under the Doctrine of Worthier Title, a remainder in the grantor's heirs is invalid and becomes a reversion in the grantor. Example: O grants Blackacre "to A for life, then to the heirs of O." Under the DOWT, A has a life estate, and O has a reversion. DOWT is generally treated as a rule of construction (i.e., it does not apply if an intent to create a remainder in heirs has been clearly manifested). DOWT applies only to inter vivos transfers (not wills) and only if the word "heirs" is used.
	Future Interests in Land Executory Interests (Shifting vs. Springing)	Executory interests are future interests in third parties that either DIVEST a transferee's preceding freehold estate ("SHIFTING" interests); - Ex.: In a grant from O "to A for life, then to B and his heirs; but if B predeceases A, then to C and his heirs." C has a shifting executory interest because it divests a transferee's preceding estate. Or that follow a gap in possession or cut short a grantor's estate ("SPRINGING" interests). - Ex.: In a grant from O "to A and his heirs when A marries B," A has a springing executory interest b/c it divests the grantor's estate. Note: Executory interests are NOT considered vested and thus are subject to the RAP; but executory interests are not destructible.
	Future Interests in Land Transferability of Remainders and Executory Interests	Vested remainders are fully transferable, descendible, and devisable. At common law, contingent remainders and executory interests were not transferable inter vivos, but most courts today hold that they are freely transferable. Contingent remainders and executory interests are descendible and devisable, provided survival is not a condition to the interest's taking. Note: Any future interest that is transferable is reachable by creditors.
	Future Interests in Land Class Gifts (Definition)	A "class" is a group of persons having a common characteristic (e.g., children, nephews). The share of each member is determined by the number of persons in the class. A class gift of a remainder may be vested subject to pen (where at least one group member exists) or contingent (where all group members are unascertained).
	Future Interests in Land Class Gifts (Rule of Administrative Convenience)	Under the rule of administrative convenience, in the absence of express contrary intent, a class closes (i.e., no one born after that time may share in the gift) when some member of the class can call for distribution of her share in the class gift (i.e., when it becomes possessory). Ex.: T executes LWT devising Blackacre to "W for life, then to A's children." T's LWT "speaks" at T's death, meaning the class gift to A's children is now vested subject to open. The class remains open until W's death, at which point it becomes possessory and the class closes. Any of A's children born before W's death take, but A's children born after W's death are excluded. Note: Persons in gestation at the time the class closes are included in the class.
	Future Interests in Land Class Gifts (Survival)	Survival of a class member to the time of closing is usually unnecessary to share in a future gift UNLESS survival was made an express condition (e.g., "to A for life and then to his surviving children"). However, certain terms are construed to create implied survivorship conditions (e.g., widow, issue, heirs, next of kin).
	Rule Against Perpetuities (Applicability)	The Rule Against Perpetuities applies to the following kinds of estates: - Contingent remainders; - Executory interests; - Vested remainders subject to open (e.g., class gifts); - Options to purchase (not attached to a leasehold); - Rights of first refusal; and - Powers of appointment
	Rule Against Perpetuities (Interests Exempt from RAP)	Except for vested remainders subject to open, the RAP does NOT apply to vested interests. Thus, other vested remainders, reversions, possibilities of reverter, and rights of entry are not subject to the rule. Moreover, there is a charity-to-charity exception to the Rule (i.e., the Rule does not apply to any disposition over from one charity to another) and an exception for options to purchase held by a current tenant.
	Rule Against Restraints on Alienation Types of Restraints on Alienation	Generally, any restriction on the transferability of a legal (as opposed to equitable) interest is void. (But restraints on the alienation of equitable interests--e.g., spendthrift clauses in trust instruments--are valid.) There are three 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; and 3) PROMISSORY restraints, under which an attempted transfer breaches a covenant. A DISABLING restraint on any legal interest is void.
	Rule Against Restraints on Alienation Restraints on Fee Simple Estates	All absolute restraints on fee simple estates are void; thus, the grantee may freely transfer the property. However, restraints on fee simple estates for a LIMITED TIME and REASONABLE PURPOSE may be upheld (e.g., a restraint limited to the joint lifetimes of co-owners as a reasonable way to ensure that neither will have to reside with a stranger).
	Rule Against Restraints on Alienation Discriminatory Restraints	Judicial enforcement of restraints prohibiting the transfer or use of property to or by a person of a specified racial, religious or ethnic group constitutes discriminatory STATE ACTION forbidden by the 14th Amendment. Discriminatory restrictions may also violate the Fair Housing Act.
	Rule Against Restraints on Alienation Restraints on a Life Estate	Forfeiture and promissory restraints on life estates are valid, but disabling restraints are void.
	Rule Against Restraints on Alienation Restraints on Future Interests	Restraints on VESTED future interests generally are valid to the extent that restraints on present interests of the same type are valid.
	Rule Against Restraints on Alienation Other Valid Restraints on Alienation	1) Reasonable restrictions in commercial transactions; 2) Reasonable options and rights of first refusal; and 3) Restrictions on assignment and sublease of leaseholds (e.g., requiring landlord's consent).
	Concurrent Estates Joint Tenancy (Right of Survivorship)	A joint tenancy's distinguishing feature is the right of survivorship. When one joint tenant dies, the property is freed from her concurrent interest (i.e., her survivors do not succeed to it--instead, it goes to the other joint tenant).
	Concurrent Estates Joint Tenancy (Creation - Four Unities)	At common law, requires the "Four Unities:" 1) Unity of TIME (must have received the interest at the same time); 2) Unity of TITLE (must have received equal title by the same instrument); 3) Unity of INTEREST (must have received equal interests); and 4) Unity of POSSESSION (must have received equal right to possession). If there are two joint tenants, they each hold an "undivided one-half interest." Modern law requires a CLEAR EXPRESSION of the right of survivorship; otherwise, a conveyance to two or more persons is PRESUMED to be a Tenancy in Common.
	Concurrent Estates Joint Tenancy (Severance)	Under certain circumstances, the right of survivorship is severed (i.e., terminated) and a tenancy in common results: 1) A voluntary or involuntary inter vivos conveyance by a joint tenant of her undivided interest destroys the joint tenancy (and transferee and other former joint tenant hold as tenants in common). 2) Severance results if one joint tenant contracts to convey her interest, but the courts are split on whether an executory contract by all joint tenants works as a severance. 3) Slayer statute situations. Note: a LWT is INEFFECTIVE to work a severance (b/c of the right of survivorship).
	Concurrent Estates Joint Tenancy (Situations Where Severance May Not Occur)	1) JUDGMENT LIENS: Usually when a plaintiff obtains a money judgment against a defendant, that judgment becomes a lien on the defendant's real property in the county where the judgment is docketed. The lien runs with the land, burdening it until the judgment is paid or the lien expires. If such a lien is acquired against a joint tenant, it does not sever the joint tenancy UNTIL it is actually sold at a foreclosure sale. 2) MORTGAGES: In most states, a mortgage is a lien on title and does not sever a joint tenancy (lien theory). Severance occurs only if the mortgage is foreclosed and the property is sold. The execution of a mortgage in a title theory state does sever a joint tenancy. 3) LEASES: States are split as to whether one joint tenant's lease of her interest causes a severance.
	Concurrent Estates Tenancy by the Entirety	A tenancy by the entirety is a MARITAL estate akin to joint tenancy. (i.e., a joint tenancy with a "fifth unity" of marriage.) In some common law juris., it arises presumptively in any conveyance to a huband and wife. Only death, divorce, mutual agreement or execution by a joint creditor of both the husband and wife can sever a tenancy by the entirety. An individual spouse cannot convey or encumber tenancy by the entirety property. A deed or mortgage executed by only one spouse is ineffective.
	Concurrent Estates Tenancy in Common	A tenancy in common is a concurrent estate with no right of survivorship. Tenants can hold different interests in the property, but each is entitled to possession of the whole. Interests are alienable, devisable, and inheritable. Today, multiple grantees are PRESUMED to take as tenants in common (rather than joint tenants).
	Concurrent Estates Rights and Duties of Co-Tenants (Possession)	Each co-tenant has the right to possess ALL portions of the property, but has no right to exclusive possession of any part. A co-tenant out of possession cannot bring a possessory action unless she is OUSTED (e.g., another co-tenant claims right to exclusive possession).
	Concurrent Estates Rights and Duties of Co-Tenants (Rents and Profits)	In most states, a co-tenant in possession has the right to retain profits from her own use of the property; i.e., she need not share profits with other co-tenants absent ouster or an agreement to the contrary. (Thus, a co-tenant in possession does not have to pay fair market value for rent to a co-tenant not in possession.) However, a co-tenant must share net rents from third parties and net profits gained from exploitations of land, such as mining.
	Concurrent Estates Rights and Duties of Co-Tenants (Effective of One Concurrent Owner's Encumbering the Property)	A joint tenant or tenant in common may encumber her interest (e.g., by mortgage or judgment lien), but may not encumber the interests of other co-tenants. If, e.g., one tenant in common mortgages her interest, the mortgagee can foreclose only on the mortgaging co-tenant's interest. If a joint tenancy is involved, a mortgage (in a lien theory state) or lien does NOT sever the joint tenancy, but a foreclosure sale will. Note, however, that in the case of a joint tenancy, a mortgagee or lienor runs the risk that the obligated co-tenant will die before foreclosure, extinguishing the mortgagee's or lienor's interest.
	Concurrent Estates Rights and Duties of Co-Tenants (Remedy of Partition)	Any co-tenant has a right to judicial partition, either: - IN KIND (i.e., physical division of land among co-tenants); or - BY SALE and a division of the proceeds. Courts prefer partition in kind, but will permit partition by sale when a fair and equitable physical division of the property cannot be made. Although generally this right may be exercised at any time, restraints on partition made by co-tenants are valid, provided they are limited to a reasonable time.
	Concurrent Estates Rights and Duties of Co-Tenants (Expenses for Preservation of Property & Contribution)	REPAIRS: A co-tenant who pays more than her pro rata share of NECESSARY repairs is entitled to contribution from the other co-tenant(s), provided she has notified them of the need for repairs. IMPROVEMENT: There is no right of contribution for the cost of improvements unless there is a partition. TAXES AND MORTGAGES: Contribution can be demanded for taxes or mortgage payments paid on the entire property. However, reimbursement to a co-tenant in sole possession is limited to the extent that expenditures exceed the rental value of her use.
	Concurrent Estates Rights and Duties of Co-Tenants (Duty of Fair Dealing)	A confidential relationship exists among co-tenants; e.g., one co-tenatn's acquisition of an outstanding title or lien that may effect the estate is deemed to be on behalf of other co-tenants. It is difficult for one co-tenant to adversely possess against other co-tenants.
	Landlord and Tenant Nature of Leasehold (Overview)	A leasehold is an estate in land under which the tenant has a present possessory interst in the leased premises and the landlord has a future interest (reversion). Types: 1) Tenancy for years 2) Periodic tenancy 3) Tenancy at will 4) Tenancy at sufferance
	Landlord and Tenant Nature of Leasehold (Tenancy for Years)	Definition: A tenancy for years continues for a fixed period of time (e.g., L rents to T for two years). Creation: Usually created by written leases. Under the SOF, a writing is required if the lease is for more than one year. Termination: A tenancy for years ends AUTOMATICALLY at its termination date. - Breach of Covenants: In most leases, the landlord reserves a right of entry, which allows him to terminate the lease if the tenant breaches any of the lease's covenants (e.g., failure to pay rent). - Surrender: a tenancy for years may also terminate if the tenant surrenders the tenancy and the landlord accepts. The same formalities required for creation of the leasehold are required for surrender (e.g., if unexpired term exceeds one year, surrender must be in writing).
	Landlord and Tenant Nature of Leasehold (Periodic Tenancy)	Definition: A periodic tenancy continues for successive periods (e.g., month to month) until terminated by proper notice by either party. Creation: A periodic tenancy can be created by: - Express agreement (e.g., L leases to T from month to month); - Implication (e.g., L leases to T at a rent of $1k payable monthly); or - Operation of law (e.g., T remains in possession after the lease expires, and L treats it as a periodic tenancy; or the lease is invalid but T goes into possession anyway). Termination: A periodic tenancy is AUTOMATICALLY RENEWED until proepr notice of termination is given. Usually, notice must be one full period in advance (e.g., one month's notice for month-to-month tenancy) and timed to terminate the lease at the end of a period. For a year-to-year lease, six months' notice is required.
	Landlord and Tenant Nature of Leasehold (Tenancy at Will)	Definition: A tenancy at will is terminable at the will of either the landlord or the tenant. Creation: Generally a tenancy at will must be created by an express agreement that the lease can be terminated at either time. Absent such an agreement, periodic rent payments will cause a court to treat it as a periodic tenancy. If the lease gives only the landlord the right to terminate, a similar right will be implied in favor of the tenant (but not vice versa). Termination: A tenancy at will may be terminated by giving notice and a reasonable time to quit by any party with the power to do so, or may be terminated by operation of law (e.g., death, comission of waste, etc.).
	Landlord and Tenant Nature of Leasehold (Tenancy at Sufferance)	Creation: a tenancy at sufference arises when a tenant wrongfully remains in possession after the expiration of a lawful tenancy. Termination: a tenancy at sufferance lasts only until the landlord takes steps to evict the tenant. No notice of termination is required.
	Landlord and Tenant Nature of Leasehold (Hold-Over Doctrine - General Rule)	If a tenant continues in possession after his right to possession has ended, the landlord may: - Evict him; or - Bind him to a new periodic tenancy. Generally, the terms and conditions of the expired tenancy govern the new one. (But see commercial vs. residential tenants). If the landlord NOTIFIES the tenant BEFORE the lease expires that occupancy after the termination will be at increased rent, the tenant, by holding over, is held to have acquiesced to the new terms (even if the tenant objected to the new terms).
	Landlord and Tenant Nature of Leasehold (Hold-Over Doctrine - Commercial vs. Residential)	COMMERCIAL tenants may be held to a new year-to-year tenancy if the original lease term was for one year or more, or a periodic term based on the frequency of rent payments if the original term was for less than one year. RESIDENTIAL tenants, however, are generally held to a new month-to-month tenancy, regardless of the original term.
	Landlord and Tenant Nature of Leasehold (Hold-Over Doctrine - Exceptions)	There are exceptions to the hold-over doctrine. Watch for situations where: - The tenant remains in possession for only a few hours after termination or leaves a few articles of personal property; - The delay is not the tenant's fault (e.g., severe illness); or - It is a seasonal lease. In these cases, the landlord cannot bind the tenant to a new tenancy.
	Landlord and Tenant Leases (Definition and General Rules)	A lease is a K that governs the landlord-tenant relationship. At common law, covenants in the lease were independent; i.e., if one party breached a covenant, the other party could recover damages but still had to perform his promises and could not terminate the relationship. Today, the doctrines of actual and constructive eviction and the implied warranty of habitability are exceptions to this rule. Also, in nearly all states, the landlord may terminate the lease for the nonpayment of rent. Modern courts are also likely to construe other covenants as dependent and excuse one party's performance if the other party's breach relates to a material part of the lease.
	Landlord and Tenant Tenant Duties and Landlord Remedies (Tenant's Duty to Repair and Waste)	A tenant cannot damage (i.e., commit waste on) the leased premises. The rules governing waste in the leasehold context are much like those governing waste in the life estate context. Three types of waste: voluntary; permissive; affirmative.
	Landlord and Tenant Tenant Duties and Landlord Remedies (Tenant's Duty to Repair and Waste - Destruction of Premises without Fault)	If the leased premises are destroyed without the fault of either the landlord or the tenant, no waste is involved. In the absence of lease language to the contrary, neither party has a duty to restore the premises, but the tenant has a duty to continue paying rent. In most states, statutes or case law now give the tenant the option to terminate the lease in this situation, even in the presence of an explicit covenant to repair.
	Landlord and Tenant Tenant Duties and Landlord Remedies (Tenant's Duty to Repair and Waste - Tenant's Liability for Covenants to Repair)	If a RESIDENTIAL tenant covenants to repair, the landlord usually remains obligated to repair under the nonwaivable implied warranty of habitability. However, a NONRESIDENTIAL tenant's covenant to repair is enforceable, and a landlord may be awarded damages for breach based on the property's condition when the lease terminates compared with its condition when the lease commenced. A tenant who covenants to repair is NOT usually liable to rebuild after structural damage or casualty destruction, unless the covenant expressly includes such repairs. In the absence of a specific reference to ordinary wear and tear, a covenant to repair usually includes such repairs.
	Landlord and Tenant Tenant Duties and Landlord Remedies (Duty to Not Use Premises for Illegal Purposes)	If th e tenant uses the premises for an illegal purpose, the landlord may terminate the lease or obtain damages and injunctive relief. Occasional unlawful conduct by the tenant does not breach this duty.
	Landlord and Tenant Tenant Duties and Landlord Remedies (Duty to Pay Rent)	At common law, rent was due at the end of the leasehold term. However, leases usually contain a provision making rent payable at some other time (e.g., monthly in advance). Most states today have statutes providing that if the leasehold terminates before the time originally agreed upon, the tenant must pay a proportionate amount of the agreed rent. The landlord is not permitted to retain a security deposit beyond the damages actually suffered. If a rent deposit is denominated a "bonus," the landlord can retain it after the tenant is evicted. If a tenant effectively surrenders his leasehold interest back to the landlord, his duty to pay rent ends.
	Landlord and Tenant Tenant Duties and Landlord Remedies (Landlord Remedies - Tenant on Premises But Fails to Pay Rent)	At common law, a breach of the lease--such as failure to pay rent--resulted only in a cause of action for money damages; not the right to terminate the lease. Most modern leases, however, give the nonbreaching party the right to terminate. Thus, if a tenant is on the premises and fails to pay rent, the landlord may bring suit for rent due or may evict the tenant under the state's unlawful detainer statute. Also, some states allow a landlord who does not receive rent to assert a lien on personal property found on the premises.
	Landlord and Tenant Tenant Duties and Landlord Remedies (Landlord Remedies - Tenant Abandons)	If the tenant unjustifiably abandons the property, the majority view is that the landlord has a duty to mitigate damages by seeking to relet the premises. If the landlord repossesses and/or relets, the tenant's liability depends on whether the landlord has accepted the surrender. If surrender is not found, the tenant is liable for the difference between the promised rent and the fair rental value of the property (or, in cases of reletting, the difference between the promised rent and the rent received from reletting). If surrender is found, the tenant is free from any rent liability accruing after abandonment. Note that the landlord's resumption of possession for himself constitutes acceptance of surrender.
	Landlord and Tenant Landlord Duties and Tenant Remedies (Duty to Deliver Possession of Premises)	Statutes in most states require the landlord to put the tenant in ACTUAL possession of the premises at the beginning of the leasehold term; i.e., the landlord is in breach if he has not evicted a hold-over tenant by the beginning of the lease term.
	Landlord and Tenant Landlord Duties and Tenant Remedies (Quiet Enjoyment - Overview)	Every lease has an implied covenant that neither the landlord nor a paramount title holder (e.g., a prior mortgagee who forecloses) will interfere with the tenant's quiet enjoyment and possession of the premises. This covenant may be breached in the following ways: 1) Actual eviction; 2) Partial eviction; or 3) Constructive eviction.
	Landlord and Tenant Landlord Duties and Tenant Remedies (Quiet Enjoyment - Actual Eviction)	Actual eviction occurs when the landlord, a paramount title holder, or a hold-over tenant excludes the tenant from the entire leased premises. Actual eviction terminates the tenant's obligation to pay rent.
	Landlord and Tenant Landlord Duties and Tenant Remedies (Quiet Enjoyment - Partial Eviction)	Partial actual eviction occurs when the tenant is physically excluded from only part of the leased premises. Partial eviction by the LANDLORD relieves the tenant of the obligation to pay rent for the ENTIRE premises, even though the tenant continues in possession of the remainder. Partial eviction by a THIRD PERSON with paramount title results in an apportionment of rent; i.e., the tenant is liable for the reasonable rental value of the portion she continues to possess.
	Landlord and Tenant Landlord Duties and Tenant Remedies (Quiet Enjoyment - Constructive Eviction)	Constructive eviction occurs when a landlord's breach of duty renders the premises unsuitable for occupancy. To establish a claim, the tenant must prove: 1) The landlord breached a duty to the tenant; 2) The breach substantially and materially deprived the tenant of her use and enjoyment of the premises (e.g., flooding, absence of heat in winter, loss of elevator service in a warehouse); 3) The tenant gave the landlord notice and a reasonable time to repair; and 4) After such reasonable time, the tenant vacated the premises (i.e., tenant can't remain in possession and sue for constructive eviction). A tenant who has been constructively evicted may TERMINATE the less and may also seek DAMAGES.
	Landlord and Tenant Landlord Duties and Tenant Remedies (Implied Warranty of Habitability)	Most jurisdictions imply a covenant of habitability into RESIDENTIAL leases. This warranty is NONWAIVABLE. The landlord's duty is tied to standards of local housing codes. In the event of a breach, the tenant may: - Terminate the lease; - Make repairs and offset the cost against future rent; - Abate the rent to an amount equal to the fair rental value in view of the defects; or - Remain in possession, pay full rent, and sue for damages. Remember: No applicability to COMMERCIAL tenants.
	Landlord and Tenant Landlord Duties and Tenant Remedies (Retaliatory Eviction)	In many states, a landlord may not terminate a lease or otherwise penalize a tenant in retaliation for the tenant's exercise of her legal rights, including reporting housing or building code violations. Many statutes PRESUME a retaliatory motive if the landlord acts within, e.g., 90 to 180 days after the tenant exercises her rights. To overcome the presumption, the landlord must show a valid, nonretaliatory reason for his actions.
	Landlord and Tenant Landlord Duties and Tenant Remedies (Discrimination)	Tenants and potential tenants are protected by: - the Civil Rights Act of 1866, which bars racial or ethnic discrimination; and - the Fair Housing Act, which bars discrimination based on ethnicity, religion, national origin, gender and disability, as well as discrimination against families with children (except in senior housing).
	Landlord and Tenant Assignments and Subleases (General rule and definitions)	Absent an express restriction in the lease, a tenant may freely transfer her leasehold interest, in whole or in part. A COMPLETE transfer of the entire remaining term is an ASSIGNMENT. If the tenant retains any part of the remaining term (other than a right to reenter upon breach), the transfer is a SUBLEASE.
	Landlord and Tenant Assignments and Subleases (Consequences of Assignment)	An assignee stands in the shoes of the original tenant in a direct relationship with the landlord; i.e., the assignee and the landlord are in "privity of estate," and each is liable to the other on all covenants in the lease that "run with the land." A covenant runs with the land if the original parties to the lease so intend and if the covenant "touches and concerns" the land (i.e., benefits the ladnlord and burdens the tenant, or vice versa, with respect to their interests in the property). Because a covenant to pay rent runs with the land, the assignee owes rent DIRECTLY to the landlord. After assignment, the original tenant is no longer in privity of estate with the landlord, but remains liable on the original contractual obligation to pay rent. If the assignee reassigns the leasehold interest, his privity of estate with the landlord ends and he has no liability for the subsequent assignee's failure to pay rent.
	Landlord and Tenant Assignments and Subleases (Consequences of Sublease)	A sublessee is the tenant of the original lessee and usually pays rent to the original lessee, who then pays the landlord. A sublessee is not personally liable to the landlord for rent or for the performance of any of the covenants in the main lease unless the sublessee expressly assumes the covenants. The landlord may terminate the main lease for nonpayment of rent or breach of other covenants if the lease so states or the power is given by statute. The sublease automatically terminates with the main lease. A sublessee cannot enforce any covenants made by the landlord in the main lease, except a RESIDENTIAL sublessee may be able to enforce the implied warranty of habitability.
	Landlord and Tenant Assignments and Subleases (Covenants Against Assignment or Sublease)	Lease covenants restricting assignment and sublease are strictly construed against the landlord. (Thus, a covenant prohibiting assignment does not prohibit subleasing and vice versa). A valid covenant against assignment is considered waived if the landlord was aware of the assignment and did not object (e.g., by knowingly accepting rent from the assignee). Once the landlord consents to one transfer, the Rule in Dumptor's Case provides that he waives the covenant as to future transfers unless he expressly reserves it. If a tenant assigns or sublets in violation of a lease provision, the transfer is not void. The landlord, however, may usually terminate the lease or sue for damages.
	Landlord and Tenant Assignments and Subleases (Assignments by Landlords)	A 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. The tenants' consent is NOT required. Once tenants are given reasonable notice of the assignment, they must recognize and pay rent to the new owner as their landlord. The benefit of all tenant covenants that touch and concern the land runs with the landlord's estate to the new owner. The burden of the landlord's covenants that touch and concern the land runs with the landlord's estate to the assignee; thus, the assignee is liable for the performance of those covenants. The ORIGINAL landlord ALSO remains liable on all of the covenants he made in the lease.
	Landlord and Tenant Condemnation of Leaseholds	If the ENTIRE leasehold is taken by eminent domain, the tenant's liability for rent is extinguished because both the leasehold and reversion have merged in the condemnor and there is no longer a leasehold estate. The lessee is entitled to compensation. However, if the taking is temporary or pratial, the tenant is NOT discharged from the rent obligation, but is entitled to compensation (i.e., a share of the condemnation award) for the taking.
	Landlord and Tenant Tort Liability of Landlord and Tenant (Landlord's Liability - Latent Dangerous Conditions)	If, at the time the lease is intered into, the landlord knows (or should know) of a dangerous condition that the tenant could not discover by reasonable inspection, the landlord must DISCLOSE (not repair) it. Otherwise, the landlord will be liable for any injuries resulting from the condition. If the tenant accepts the premises after disclosure, she assumes the risk for herself and others, and the landlord is no longer liable.
	Landlord and Tenant Tort Liability of Landlord and Tenant (Landlord's Liability - Public Use)	A landlord is liable for injuries to members of the public if, at the time of the lease, he: 1) Knows (or should know) of a dangerous condition; 2) Has reason to believe the tenant may admit the public before repairing the condition; and 3) Fails to repair the condition.
	Landlord and Tenant Tort Liability of Landlord and Tenant (Landlord's Liability - Furnished Short-Term Residence)	A landlord who rents a fully furnished premises for a short period (e.g., summer cottage) is under a stricter duty. He is liable for injuries resulting from ANY defect, whether or not he knew of the defect.
	Landlord and Tenant Tort Liability of Landlord and Tenant (Landlord's Liability - Negligent Repairs by Landlord)	Even if a landlord has no duty to make repairs, a landlord who actually attempts to repair is liable if an injury results b/c the repairs are done negligently or give a deceptive appearance of safety.
	Landlord and Tenant Tort Liability of Landlord and Tenant (Landlord's Liability - Landlord Contracts to Repair)	If the landlord covenants to repair, he is liable for injuries resulting from his failure to repair or negligent repair.
	Landlord and Tenant Tort Liability of Landlord and Tenant (Landlord's Liability - Modern Trend - General Rule)	Many courts are now holding that a landlord owes a general duty of reasonable care toward residential tenants, and will be held liable for injuries resulting frmo ordinary negligence if he had notice of a defect and had an opportunity to repair it.
	Landlord and Tenant Tort Liability of Landlord and Tenant (Landlord's Liability - Modern Trend - Defects Arising After Tenant Takes Possession)	A landlord generally is held to have notice of defects existing before the tenant took possession, but is NOT liable for defects arising after the tenant takes possession UNLESS the landlord knew or should have known of them.
	Landlord and Tenant Tort Liability of Landlord and Tenant (Landlord's Liability - Modern Trend - Legal Duty to Repair)	If the landlord has a statutory duty to repair (e.g., housing codes), he is liable for injuries resulting from his failure to repair or negligent repair.
	Landlord and Tenant Tort Liability of Landlord and Tenant (Landlord's Liability - Modern Trend - Security)	Some courts hold landlords liable for injuries to tenants inflicted by third-party criminals where the landlord failed to: - comply with housing code provisions dealing with security; - maintain ordinary security measures; or - provide advertised extraordinary security measures.
	Fixtures Definition	A fixture is a chattel that has been so affixed to land that it has ceased being personal property and has become part of the realty. A fixture passes with the ownership of the land.
	Fixtures Chattels Incorporated Into Structure	When items are incorporated into the realty so that they lose their identity (e.g., bricks, concrete), they are fixtures, as are items that are identifiable but whose removal would cause considerable damage (e.g., plumbing, heating ducts).
	Fixtures Common Ownership Cases (General Rule)	A common ownership case is one in which the person who brings the chattel to the land owns both the chattel and the land (e.g., X installs a furnace in his own home). An item is a "fixture" if the OBJECTIVE intention of the party who made the "annexation" was to make the item part of the realty. This intention is determined by: - The nature of the article; - The manner of attachment; - The amount of damage that would be caused by its removal; and - The adaptation of the item to the use of the realty.
	Fixtures Common Ownership Cases (Constructive Annexation)	An article of personal property that is so uniquely adapted to the real estate that it makes no sense to separate it (e.g., keys to doors, custom curtain rods) may be considered a fixture even if it is not physically annexed to the property.
	Fixtures Divided Ownership Cases (General Rule)	In divided ownership cases, the chattel is owned and brought to the realty by someone other than the landowner (e.g., tenant, licensee, or trespasser). ACCESSION describes the annexor's intent to make chattels a permanent part of the real estate.
	Fixtures Third Party Cases	Suppose a landowner affixes a chattel to the land. The seller of the chattel retains a security interest in the chattel, and the landowner mortgages the land. If the landowner then defaults on both chattel and mortgage payments, as between the seller and the mortgagee, the general rule is that the first to record his interest wins. However, under the UCC, a seller wins if the "fixture filing" is recorded within 20 days after the chattel is affixed to the land. The seller must compensate the mortgagee for damage or repair caused by removal.
	Fixtures Divided Ownership Cases (Landlord-Tenant)	An agreement between the landlord and tenant is controlling on whether an annexed chattel is a fixture. Absent an agreement, a tenant is deemed to lack the intent to permanently improve the property, and thus may remove his annexed chattels if removal does not substantially damage the premises or destroy the chattel. Annexed chattles must be removed BY the end of the lease term (or within a reasonable time after the termination of an indefinite tenancy), and the tenant is responsible for repairing any damage caused by the removal.
	Fixtures Divided Ownership Cases (Life Tenant and Remaindermen)	The same rules apply in the life tenant-remainderman context as in the landlord-tenant situations, except that the life tenant's representative may remove annexations within a reasonable time after the life tenant's death.
	Fixtures Divided Ownership Cases (Licensee or Trespasser and Landowner)	Licensees are treated much like tenants, whereas trespassers normally lose their annexations. Thus, absent a statute, an adverse possessor or good faith respasser cannot remove fixtures (e.g., house erroneousl constructed on a parcel that possessor believed she owned). Some courts, however, allow a good faith trespasser recovery measured by the value added to the land (not construction costs).
	Landlord and Tenant Tort Liability of Landlord and Tenant (Landlord's Liability - Overview)	At common law, a landlord had no duty to make the premises safe. Today, there are six exceptions: 1) Concealed (Latent) Dangerous Condition; 2) Common Areas (e.g., hallways in apartment buildings) 3) Public Use 4) Furnished Short-Term Residence 5) Negligent Repairs by Landlord 6) Landlord Contracts to Repair
	Easements, Profits, Covenants and Servitudes Nonpossessory Interests	Easements, profits, covenants and servitudes are nonpossessory interests in land, creating a right to use land possessed by someone else.
	Easements, Profits, Covenants and Servitudes Easements (Overview)	An easement holder has the right to use another's tract of land for a special purpose (e.g., to lay pipe, to access a road or lake), but has no right to possess or enjoy that land. An easement is presumed to be of perpetual duration unless the grant specifically limits the interest.
	Easements, Profits, Covenants and Servitudes Easements (Types of Easements)	Most easements are affirmative, which means the holder is entitled to make affirmative use of the servient tenement. Negative easements entitle the holder to compel the possessor of the servient tenement to refrain from engaging in an activity on the servient estate (e.g., building a structure in excess of three stories). Historically, negative easements were recognized only for light, air, lateral and subjacent support, and flow of an artificial stream. Today, negative easements are simply restrictive covenants.
	Easements, Profits, Covenants and Servitudes Easements (Easement Appurtenant)	An easement is appurtenant when it benefits the holder in his physical use or enjoyment of another tract of land. Thus, for an easement to be appurtenant, there must be two tracts: the DOMINANT tenement (the estate benefited) and the SERVIENT tenement. An easement appurtenant passes with teh transfer of the benefited land, regardless of whether it is mentioned in the conveyance. The burden of the easement also passes automatically with the servient estate unless the new owner is a bona fide purchaser with no actual or constructive notice of the easement. An easement appurtenant cannot be conveyed apart from the dominant tenement, unless it is conveyed to the owner of the servient tenement to extinguish the easement.
	Easements, Profits, Covenants and Servitudes Easements (Easement in Gross)	The holder of an easement in gross acquires a right to use the servient tenement independent of his possession of another tract of land; i.e., the easement benefits the holder rather than another parcel. An easement in gross for the holder's personal pleasure (e.g., right to swim in the pond on Blackacre) is not transferable, but one that serves an economic or commercial interest (e.g., right to erect billboards on Blackacre) is transferable.
	Easements, Profits, Covenants and Servitudes Easements (Creation - Overview)	The basic methods of creating an easement are: 1) Express grant or reservation 2) Implication 3) Prescription
	Easements, Profits, Covenants and Servitudes Easements (Creation - Express Grant or Reservation)	Any easement must be memorialized in writing by the holder of the servient tenement unless its duration is breif enough (commonly one year or less) to be outside the coverage of the SOF. A grant of easement must comply with all formal requisites of a deed. An easement by reservation arises when a grantor conveys title to land but reserves the right to continue to use the tract for a special purpose. Under the majority view, an easement can be reserved only for the grantor--an attempt to reserve an easement for a third person is void.
	Easements, Profits, Covenants and Servitudes Easements (Creation - Implication - Overview)	An easement by implication is created by operation of law; it is an exception to the Statute of Frauds. There are three types of easements by implication: 1) Easement implied from existing use 2) Easement implied without any existing use 3) Easement by necessity
	Easements, Profits, Covenants and Servitudes Easements (Creation - Implication - Easement implied from existing use)	An easement may be implied if: - Prior to the division of a single tract; - An apparent and continuous use exists on the "servient" part; - That is reasonably necessary for the enjoyment of the "dominant" part; and - The court determines that the parties intended the use to continue after division of the land.
	Easements, Profits, Covenants and Servitudes Easements (Creation - Implication - Easement implied without any existing use)	In two limited situations, easements may be implied without preexisting use. Subdivision Plat: When lots are sold in a subdivision with reference to a recorded plat or map that also shows streets leading to the lots, buyers of the lots have implied easements to use the streets to access their lots. Profit a Prendre: the holder of a profit a prendre has an implied easement to pass over the surface of the land and to use it as reasonably necessary to extract the product.
	Easements, Profits, Covenants and Servitudes Easements (Creation - Implication - Easement by Necessity)	An easement by necessity arises when a landowner sells a portion of his tract and by this division deprives on lot of access to a public road or utility line. The owner of the servient parcel has the right to locate the easement.
	Easements, Profits, Covenants and Servitudes Easements (Creation - Prescription)	Acquiring an easement by prescription is analagous to acquiring property by adverse possession. To acquire a prescriptive easement, the use must be: 1) Open and notorious (i.e., discoverable upon inspection); 2) Adverse (i.e., without the owner's permission); and 3) Continuous and uninterrupted 4) For the statutory period. Generally, prescriptive easements cannot be acquired in public land.
	Easements, Profits, Covenants and Servitudes Easements (Scope)	In the absence of specifi limitations in the grant, courts assume that the easement was intended to meet both present and future needs of the dominant tenement (e.g., easement may widen to accomodate new, wider cars). If, however, the dominant parcel is subdivided, the lot owners will not succeed to the easement if to do so would unreasonably overburden the servient estate.
	Easements, Profits, Covenants and Servitudes Easements (Use of Servient Estate and Repairs)	The servient owner generally may use her land in any way she wishes so long as her conduct does not interfere with performance of the easement. The easement holder has the duty to make repairs to the easement if he is the sole user; but if both parties are using the easement, teh court will apportion the repair costs.
	Easements, Profits, Covenants and Servitudes Easements (Termination - Overview)	An easement can be terminated in the following ways: 1) Stated conditions 2) Unity of ownership (merger) 3) Release 4) Abandonment 5) Estoppel 6) Prescription 7) Necessity 8) Condemnation and destruction
	Easements, Profits, Covenants and Servitudes Easements (Termination - Unity of Ownership/Merger)	If the same person acquires ownership of both the easement and the servient estate, the dominant and servient estates merge and the easement is destroyed. Even though there may be later separation, the easement will not be automatically revived. The unity must be complete (i.e., the duration of the servient tenement must be equal to or longer than the duration of the dominent tenement with which it is combined).
	Easements, Profits, Covenants and Servitudes Easements (Termination - Release)	An easement can be terminated by a deed of release from the owner of the easement to the owner of the servient tenement.
	Easements, Profits, Covenants and Servitudes Easements (Termination - Abandonment)	An easement is extinguished when its holder demonstrates by physical action (e.g., building a structure that blocks access to easement on adjoining lot) an intent to permanently abandon the easement. Merely expressing a wish to abandon does not extinguish the easement; neither does mere nonuse. However, oral expressions combined with a long period of nonuse may be sufficient.
	Easements, Profits, Covenants and Servitudes Easements (Termination - Estoppel)	Oral expressions of an intent to abandon do not terminate an easement unless committed to writing (released) or accompanied by action (abandonment). But if the owner of the servient estate changes his position in reasonable reliance on the representations made or conduct by the owner of teh easement, the easement terminates through estoppel.
	Easements, Profits, Covenants and Servitudes Easements (Termination - Prescription)	To terminate an easement by prescription, there must be an adverse, continuous interruption of the use for the prescriptive period (usually 20 years).
	Easements, Profits, Covenants and Servitudes Easements (Termination - Necessity)	Easements created by necessity terminate as soon as the necessity ends.
	Easements, Profits, Covenants and Servitudes Easements (Termination - Condemnation and Destruction)	Condemnation of the servient estate extinguishes all easements. Courts are split as to whether easement holders are entitled to compensation. Involuntary destruction of a structure in which there is an easement extinguishes the easement; voluntary destruction of such a structure does not.
	Easements, Profits, Covenants and Servitudes Easements (Irrevocable Licenses)	A license becomes irrevocable in the following circumstances: - ESTOPPEL: If a licensee invests substantial amounts of money or labor in reliance on the license, the licensor is estopped to revoke. The license becomes an easement by estoppel, which lasts until the holder receives sufficient benefit to reimburse him for his expenditures. - LICENSE COUPLED WITH AN INTEREST: a license coupled with an interest is irrevocable as long as the interest lasts. For example, the vendee of a chattel may enter the seller's land to remove the chattel, and a future interest holder may enter and inspect the land for waste.
	Easements, Profits, Covenants and Servitudes Profits	Profits entitle the holder of the benefit to take some resources (e.g., soil, timber, materials, fish) from the servient estate. Implied in every profit is an easement entitling the benefit holder to enter the servient estate to remove the resources. All of the rules governing creation, alienation, and termination of easements are applicable to profits. In addition, a profit may be extinguished through SURCHARGE (misuse that overly burdens the servient estate).
	Easements, Profits, Covenants and Servitudes Covenants Running with the Land At Law, a.k.a. Real Covenants (Overview)	A real covenant, normally found in a deed, is a written promise to do something on the land (e.g., maintain a fence) or a promise not to do something on the land (e.g., not build a multifamily dwelling). Real Covenants run with the land at law, which means that subsequent owners may enforce or be burdened by the covenants.
	Easements, Profits, Covenants and Servitudes Covenants Running with the Land At Law, a.k.a. Real Covenants (Requirements for BURDEN to Run)	If the following requirements are met, any successor in interest to the burdened estate will be bound by the covenant: 1) The covenanting parties must have INTENDED that successors in interest to the covenantor be bound by the terms of teh covenant. 2) Under modern recording acts, a subsequent purchaser for value must have had actual, inquiry, or record NOTICE of the arrangement at the time of purchase. 3) At the time the promisor entered into the covenant with the promisee, the two must have shared some interest in the land independent of the covenant (i.e., HORIZONTAL PRIVITY) (e.g., grantor-grantee, landlord-tenant, mortgagee-mortgagor). 4) To be bound, the successor in interest to the covenanting party must hold the entire durational interest held by the covenantor at the time he made the covenant (i.e., VERTICAL PRIVITY). 5) The easement must TOUCH AND CONCERN the land. Negative covenants do so if they restrict the holder of the servient estate in his use of that parcel of land. Affirmative covenants do so if they require the holder of teh servient estate to do something.
	Easements, Profits, Covenants and Servitudes Covenants Running with the Land At Law, a.k.a. Real Covenants (Requirements for BENEFIT to Run)	If the following three requirements are met, the promisee's successor in interest may enforce the covenant: 1) The covenanting parties must have INTENDED that the scucessors in interest to the covenantee be able to enforce the covenant. 2) The benefits of a covenant run to the assignees of the original estate or any lessor estate; i.e., any succeding possesory estate may enforce the benefit (VERTICAL PRIVITY); 3) The benefit of a covenant TOUCHES AND CONCERNS the land if the promised performance benefits the covenantee and her successors in the use and enjoyment of the benefited land. Note: Horizontal privity is not required for the benefit to run. Thus, where horizontal privity is lacking, the promisee's successors can enforce the covenant against the original promisor, but not against the promisor's successors.
	Easements, Profits, Covenants and Servitudes Covenants Running with the Land At Law, a.k.a. Real Covenants (Specific Situations Involving Real Covenants)	Generally, promises to pay money to be used in connection with the land (e.g., homeowners' association fees) and covenants not to compete run with the land. Racially restrictive covenants are unenforceable.
	Easements, Profits, Covenants and Servitudes Covenants Running with the Land At Law, a.k.a. Real Covenants (Remedy for Breach)	A breach of a real covenant generally is remedied by an award of damages, collectible from the defendant's general assets. If an injunction is sought, the promise may be enforced as an equitable servitude.
	Easements, Profits, Covenants and Servitudes Covenants Running with the Land At Law, a.k.a. Real Covenants (Termination)	As with all other nonpossessory interests, a covenant may be terminated by: 1) a written release; 2) the merger of the benefited and servient estates; or 3) the condemnation of the burdened property.
	Easements, Profits, Covenants and Servitudes Equitable Servitudes (Overview)	An equitable servitude is a covenant that, regardless of whether it runs with the land at law, equity will enforce against the assignees of the burdened land who have notice of the covenant. The usual remedy for breach is an injunction.
	Easements, Profits, Covenants and Servitudes Equitable Servitudes (Distinguish from Real Covenants)	A single promise can create both a real covenant and an eqauitable servitude. For teh bar exam, the main difference between the two will be the remedy sought. If MONEY damages are sought, you should use the real covenant analysis. If a party seeks an injunction, you should consider whether the requirements for enforcement as an equitable servitude have been met.
	Easements, Profits, Covenants and Servitudes Equitable Servitudes (Creation - Generally)	Generally, as with real covenants, equitable servitudes are created by covenants contained in a writing that satisfies the SOF. EXCEPTION: - Negative equitable servitudes may be implied from a common scheme for development of a residential subdivision.
	Easements, Profits, Covenants and Servitudes Equitable Servitudes (Common Scheme - Notice)	To be bound by a covenant not in her deed, a grantee must have had notice of the covenants in the deeds of others in the subdivision. Notice may be ACTUAL (direct knowledge of covenants); INQUIRY (neighborhood appears to conform to common restrictions); or RECORD (prior deed with covenant in grantee's chain of title).
	Easements, Profits, Covenants and Servitudes Equitable Servitudes (Common Scheme - Overview)	Negative equitable servitudes may be implied form a common scheme for development of a residential subdivision. Thus, if a developer subdivides land, and some deeds contain negative covenants while others do not, the negative covenants will be binding on ALL parcels provided there was a common scheme of development and notice of the covenants. Reciprocal negative servitudes will be implied only if, at the time that sales in the subdivision began, the developer had a plan that all parcels would be subject to the restriction. The scheme may be evidenced by: - A recorded plat; - A general pattern of restrictions; or - Oral representations to early buyers. Note: If the scheme arises after some lots are sold, no implied servitude can arise with respect to the lots already sold without express covenants.
	Easements, Profits, Covenants and Servitudes Equitable Servitudes (Requirements for the BURDEN to Run)	A successor is bound if: 1) The covenanting parties INTENDED that the servitude be enforceable by and against assignees; 2) The successor of the promisor has actual, inquiry, or record notice of the servitude; and 3) The covenant touches and concerns the land (i.e., it restricts the holder of the servient estate in his use of that parcel).
	Easements, Profits, Covenants and Servitudes Equitable Servitudes (Requirements for the BENEFIT to Run)	The benefit of an equitable servitude runs with the land, and thus is enforceable by the promisees successors, if: 1) The original parties so intended; and 2) The servitude touches and concerns the benefited property. In contrast to real covenants, which require vertical and horizontal privity of estate for burdens to run, and vertical privity for benefits to run, no privity of estate is required for an equitable servitude to be enforceable by and against assignees.
	Easements, Profits, Covenants and Servitudes Equitable Servitudes (Equitable Defenses to Enforcement)	A court will not enforce an equitable servitude if: 1) The person seeking enforcement is violating a similar restriction on his own land (unclean hands); 2) A benefited party acquiesced in a violation of the servitude by one burdened party; 3) A benefited party acted in such a way that a reasonable person would believe the covenant was abandoned or waived (estoppel); 4) The benefited party fails to bring suit against the violator within a reasonable time (laches); or 5) The neighborhood has changed so significantly that enforcement would be inequitable.
	Easements, Profits, Covenants and Servitudes Equitable Servitudes (Termination)	Like other nonpossessory interests, an equitable servitude may be extinguished by: 1) Written release from the benefit holders; 2) Merger of the benefited and burdened estates; or 3) Condemnation of the burdened property.
	Easements, Profits, Covenants and Servitudes Party Walls and Common Driveways (General Rule)	Courts will treat a wall erected partly on the property of each of two adjoining landowners as belonging to each owner to the extent it rests upon her land. Courts will also imply mutual cross-easements of support, with the result that each party can use the wall or driveway and neither party can unilaterally destroy it.
	Easements, Profits, Covenants and Servitudes Party Walls and Common Driveways (Creation)	Creation: a written agreement is required by the SOF for the express creation of a party wall or common driveway agreement, but an irrevocable license" can arise from detrimental reliance on a parol agreement.
	Easements, Profits, Covenants and Servitudes Party Walls and Common Driveways (Running of Covenants)	If party wall or common driveway owners agree to be mutually responsible for maintaining the wall or driveway, the burdens and benefits of these covenants run to the successive owners of each parcel.
	Adverse Possession General Rule	Title to real property can be acquired by adverse possesion. Title by adverse possession results from the operation of the statute of limitations for ejectment. If an owner does not, within the statutory period, take action to eject a possessor who claims adversely to the owner, the title vests in the possessor.
	Adverse Possession Requirements (Overview)	To establish title by adverse possession, the possessor must show: 1) An actual entry giving EXCLUSIVE possession that is; 2) Open and notorious; 3) Adverse (hostile); and 4) Continuous throughout the statutory period.
	Adverse Possession Requirements (Running of Statute)	The statute of limitations begins to run when the true owner can first bring suit. Filing a suit will not stop the period from running, however; the suit must be pursued to judgment.
	Adverse Possession Requirements (Actual and Exclusive Possession)	An adverse possessor will gain title only to land she actually occupies. In some cases, actual possession of the entire parcel claimed is not necessary. If an adverse possessor actually occupies a reasonable portion of the parcel, and her occupation is under color of title (i.e., a document that purports to give title but does not actually do so) to the entire parcel, then she will be deemed to have constructively possessed the entire parcel. "Exclusive" means that the possessor is not sharing with the true owner or the public. Two or more people may obtain title by adverse possession--they take title as tenants in common.
	Adverse Possession Requirements (Open and Notorious Possession)	Possesion is open and notorious when it is the kind of use the owner would make of the land. The adverse possessor's occupation must be sufficiently apparent to put the true owner on notice that a trespass is occurring.
	Adverse Possession Requirements (Hostile/Adverse)	The hostility requirement is satisfied if the possessor enters without the owner's permission. The adverse possessor's state of mind is irrelevant; i.e., it does not matter whether she believes the land to be her own or knows she is trespassing. When possession starts permissively (e.g., by lease), possession does not become adverse until the possessor makes clear to the true owner the fact that she is claiming "hostilely."
	Adverse Possession Requirements (Hostile/Adverse - Co-tenants)	Possession by one co-tenant is usually not adverse to his co-tenants because each co-tenant has the right to possession of all the property. A co-tenant must oust others or make an explicit declaration that he is claiming exclusive dominion to create adverse possession.
	Adverse Possession Requirements (Hostile/Adverse - Grantor Stays in Possession)	Where a grantor stays in possession of land after her conveyance, she is presumed to be there with permission of the grantee. (Likewise, if a tenant remains in possession after the expiration of the lease, he is presumed to have permission of the landlord.
	Adverse Possession Requirements (Continuous Possession)	An adverse claimant's possession must be continuous throughout the statutory period. Intermittent periods of occupancy are not sufficient. However, constant use by the claimant is not required as long as possession is of a type that the usual owner would make.
	Adverse Possession Requirements (Continuous Possession - Tacking)	There need not be continuous possession by the same person; an adverse possessor can TACK her own possession onto the periods of adverse possession of her predecessors, but PRIVITY is required.
	Adverse Possession Requirements (Payment of Taxes)	Most states do NOT require the adverse possessor to pay taxes on the property, but such payment is good evidence of a claim of right.
	Adverse Possession Disability of True Owner	The statute of limitations does not begin to run if the true owner was under some disability to sue WHEN THE CAUSE OF ACTION FIRST ACCRUED. Typical disabilities: minority; imprisonment; insanity. Remember: if the disability arose after the statute of limitations had already begun to run, it has no effect--the statute continues to run.
	Adverse Possession Adverse Possession and Future Interests	The statute of limitations does not run against a holder of a future interest until the interest becomes possessory. The event or condition giving rise to a grantor's right of entry does not trigger the statute of limitations for purposes of adverse possession--it does not begin to run until the right is asserted by the grantor. However, the interests that automatically go to another person (e.g., possibility of reverter) do start the sattute running.
	Adverse Possession Land that cannot be adversely possessed	Title to government-owned land and land registered under a Torrens system cannot be acquired by adverse possession.
	Adverse Possession Effect of Covenants in True Owner's Deed	If an adverse possessor uses the land in violation of a restrictive covenant in the owner's deed for the limitations period, she takes free of the restriction. If, however, the possessor's use complies with such a covenant, she takes title subject to the restriction.
	Easements, Profits, Covenants and Servitudes Easements (Compare w/ Licenses)	Licenses privilege their holders to go upon the land of another. But unlike an easement, a license is not an interest in land; it is merely a privilege, REVOCABLE at the will of the licensor. A license is personal to the licensee, and, thus, inalienable. Any attempt to transfer a license results in revocation by operation of law. Note: A failed attempt to create an easement (such as violation of SOF) results in a license.
	Conveyancing Land Sale Contracts (Statute of Frauds Applies)	A land sale contract must be memorilized in a writing that contains the signature of the party to be charged and the essential terms (e.g., parties, description of land, and price). Part performance (e.g., possession, substantial improvements, payment of purchase price--two out of three) can take a countract out of the SOF.
	Conveyancing Land Sale Contracts (Doctrine of Equitable Conversion - Rule)	Under this doctrine, once a contract is signed, equity regards the buyer as the owner of the real property. The seller's interest (the right to the proceeds of sale) is considered personal property. The bare legal title that remains in the seller is considered to be held in trust for the buyer. The right to possession follows the bare legal title, however; thus, the seller is entitled to possession until closing.
	Conveyancing Land Sale Contracts (Doctrine of Equitable Conversion - Passage of Title on Death)	Under the doctrine of equitable conversion, if a party to a land sale contract dies before the contract is completed, the seller's interest passes as personal property and the buyer's interest passes as real property. Thus, if the seller dies, bare legal title passes to his heirs or devisees, but they must give up title to the buyer at closing. If the buyer dies, his heirs or devisees can demand a conveyance of the land at closing.
	Conveyancing Land Sale Contracts (Marketable Title - General Rule)	Every K contains an implied covenant that the seller will provide marketable title (i.e., title reasonably free from doubt) at closing. It need not be perfect title, but it must be free of questions that present an unreasonable risk of litigation. Title may be unmarketable because of a defect in the chain of title (e.g., variation in land description in deeds, defectively executed deed, evidence that a prior grantor lacked capacity to convey).
	Conveyancing Land Sale Contracts (Marketable Title - Encumbrances)	Generally, mortgages, liens, restrictive covenants, easements and significant encroachments render title unmarketable. An easement that is beneficial, visible, or known to the buyer does not impair the marketability of title. Remember: A seller has the right to satisfy a mortgage or lien at closing with the proceeds of the sale. Thus, the buyer cannot claim that title is unmarketable b/c it is subject to a mortgage prior to closing, if the closing will result in marketable title.
	Conveyancing Land Sale Contracts (Doctrine of Equitable Conversion - Risk of Loss)	If property is destroyed (without fault of either party) before closing, the majority rule places the risk on the BUYER. Some states, however, have enacted the Uniform Vendor and Purchaser Risk Act, which places the risk on the seller unless the buyer has title or possession at the time of loss. Note: Even if the risk of loss is on the buyer, if the property is damaged or destroyed, the seller must credit any fire or casualty insurance proceeds he receives against the purchase price the buyer is required to pay.
	Conveyancing Land Sale Contracts (Marketable Title - Adverse Possession)	On the MBE, title acquired by adverse possession is UNMARKETABLE, despite the fact that most modern cases are contra to this.
	Conveyancing Land Sale Contracts (Marketable Title - Future Interests Held by Unborn or Unascertained Parties)	While most states consider all types of future interests transferable, when a holder of a future interest is unborn or unascertained, it is impossible to convey marketable title. Courts will not appoint a guardian ad litem to represent the unborn or unascertained parties for the purposes of conveying land.
	Conveyancing Land Sale Contracts (Marketable Title - Zoning Restrictions)	Zoning restrictions do not affect marketability, but an EXISTING violation of a zoning ordinance does render title unmarketable.
	Conveyancing Land Sale Contracts (Marketable Title - Time of Marketability)	If the seller has agreed to furnish title at the date of closing, the buyer cannot rescind prior to that date on grounds that theseller's title is not marketable. Note that in an installment land K, the seller need not provide marketable title until the buyer has made his last payment.
	Conveyancing Land Sale Contracts (Time of Performance)	Courts presume that time is not "of the essence" in real estate Ks. Thus, the closing date is not absolutely binding, and a party late in tendering her own performance can still enforce the K if she tenders within a reasonable time (e.g., two months) after the closing date. Time IS of the essence if: - The K so states; - The circumstances indicate that was the parties intent; or - One party gives the other party notice that time is of the essence. If time is of the essence, a party who fails to tender performance on the closing date is in breach and may not enforce the K. Even if time is not of the essence, a party who is late in tendering performance is liable for incidental losses.
	Conveyancing Land Sale Contracts (Tender of Performance)	The buyer's obligation to pay and the seller's obligation to convey are concurrent conditions. Thus, neither party is in breach until the other tenders performance (even if the closing date passes). If neither party tenders performance, the closing date is extended until one of them does so. A party need not tender performance if the other party has repudiated the K or it is impossible (e.g., unmarketable title that cannot be cured) for the other party to perform.
	Conveyancing Land Sale Contracts (Liquidated Damages)	Sales Ks usually require the buyer to deposit "earnest money" with the seller, and provide that if the buyer defaults in performance, the seller may retain this money as liquidated damages. Courts routinely uphold the seller's retention of earnest money if the amount appears to be reasonable in light of the seller's anticipated and actual damages.
	Conveyancing Land Sale Contracts (Seller's Liability for Defective Property - Warranty of Fitness/Quality)	Contracts of sale and deeds of real property carry no implied warranty of quality or fitness for purpose. However, a majority of courts now recognize a warranty of fitness or quality in the sale of a new house by the BUILDER (new construction).
	Conveyancing Land Sale Contracts (Seller's Liability for Defective Property - Negligence of Builder)	A person may sue a builder in negligence in performing a building contract. Some courts permit the ultimate vendee to sue the builder despite lack of privity.
	Conveyancing Land Sale Contracts (Seller's Liability for Defective Property - Sale of Existing Land and Buildings)	The seller of existing buildings (i.e., not new construction) may be liable to the purchaser for defects such as a leaky roof, flooding basement, or termite infestation, on any of several different theories: 1) Fraudulent misrepresentation; 2) Active concealment; or 3) Failure to disclose.
	Conveyancing Land Sale Contracts (Seller's Liability for Defective Property - Failure to Disclose Defects)	Most states hold a seller liable for failure to disclose defects if: - he knows or has reason to know of the defect; - the defect is not apparent, and the seller knows that the buyer is unlikely to dsicover it upon ordinary inspection; and - the defect is serious and would probably cause the buyer to reconsider the purchase if known. Factors increasing the likelihood that liability will be imposed in these cases include whether the property is a personal residence, whether the defect is dangerous, and whether the seller created the defect or made a failed attempt to repair it.
	Conveyancing Land Sale Contracts (Seller's Liability for Defective Property - Disclaimer of Liability)	A general disclaimer in the sales contract (e.g., property sold "as is" or "with all defects") is NOT sufficient to overcome a seller's liability for fraud, concealment, or failure to disclose. If the disclaimer identifies SPECIFIC types of defects (e.g., "seller is not liable for any defects in the roof") it will likely be upheld.
	Conveyancing Land Sale Contracts (Real Estate Brokers)	Real estate brokers are the SELLER'S agents but should disclose material information about the property if they have actual knowledge of it. Traditionally, agents earned their commissions when they produced a buyer who was ready, willing, and able to purchase the property. Therefore, the commission was owed regardless of whether the deal actually closed. The growing trend, however, is to award the commission only if the sale actually closes or if it fails to close b/c of the fault of the seller.
	Conveyancing Land Sale Contracts (Title Insurance)	A title insurance police insures that a good record title of the property exists as of the policy's date and promises to defend the record title if litigated. An OWNER'S POLICY protects only the person who owns the policy (usually either the owner of the property or the mortgage lender) and does not run with the land to subsequent purchasers. A LENDER'S POLICY follows any assignment of the mortgage loan.
	Conveyancing Deeds - Form and Content (Formalities)	A deed must be: - In WRITING; - SIGNED by the grantor; and - Reasonably IDENTIFIES the parties and land. Most other formalities (e.g., seal, consideration, attestaion and acknowledgement) are generally unnecessary.
	Conveyancing Deeds - Form and Content (Void vs. Voidable Deeds)	A VOID deed will be set aside by the court even if the property has passed to a bona fide purchaser, but a VOIDABLE deed will be set aside only if the property has not passed to a bona fide purchaser. Void deeds include those that are forged, were never delivered, or were obtained by fraud in the factum (i.e., grantor did not realize she was signing a deed). Voidable deeds include those executed by minors or incapacitated persons, and those obtained through fraud in the inducement, duress, undue infuence, mistake, and breach of fiduciary duty.
	Conveyancing Deeds - Form and Content (Fraudulent Conveyances)	Even when a deed complies with the required formalities, it may be set aside by the grantor's creditors if it was made: - With actual intent to hinder, delay or defraud any creditor of the grantor; or - Without receiving a reasonably equivalent value in exchange for the transfer, and the debotr was insolvent or become insolvent as a result of the transfer. However, the deed will NOT be set aside as against any grantee who took in good faith and paid reasonably equivalent value.
	Conveyancing Deeds - Form and Content (Description of Land Conveyed - Rules of Construction)	Where descriptions are inconsistent or conflicting, these methods of description are given the following order of priority: 1) Natural monuments (e.g., oak tree); 2) Artificial monuments (e.g., stakes, buildings); 3) Courses (e.g., angles); 4) Distances (e.g., feet, yards); 5) Name (e.g., Blackacre); and 6) Quantity (e.g., 300 acres).
	Conveyancing Deeds - Form and Content (Description of Land Conveyed - Boundary Cases)	Presumptively, title to land passes to the center of a right-of-way or water boundary. This presumption can be rebutted by language in the deed. In variable boundary line cases (i.e., water boundary), the slow and imperceptible change in the course of a river or stream operates to change the legal boundary. Accretion (slow deposit of soil on land abutting water) belongs to the abutting owner. Avulsion (sudden change of watercourse) does NOT change ownership rights. Fixed boundaries are not changed by encroachment of water.
	Conveyancing Land Sale Contracts (Marketable Title - Remedy if Title Not Marketable)	The buyer must notify the seller that his title is unmarketable and give him reasonable time to cure the defects. If the seller fails to cure the defects, the buyer's remedies include rescission, damages, specific performance with abatement, and a quiet title suit. But if closing occurs, the contract and deed merge, and the seller's liability on the implied contractual covenant ends. Note: A quitclaim deed does NOT in any way affect the implied covenant to provide marketable title--thus, it does not let the seller off the hook for title defects.
	Conveyancing Land Sale Contracts (Remedies for Breach of Sales K)	The nonbreaching party is entitled to damages (difference between K price and market value on the date of breach, plus incidental costs) or, because land is unique, specific performance. Note that if the buyer wishes to proceed despite unmarketable title, she can usually get specific performance with an abatement of the purchase price.
	Conveyancing Deeds - Form and Content (Description of Land Conveyed - General Rule)	A description is sufficient if it provides a good lead to the identity of the property (e.g., "all my land in Stockton"). If it is too indefinite, the grantor retains title (but reformation of the deed is a possible remedy). Parol evidence is generally admissible to resolve patent or latent ambiguities if the description gives a good lead, but it may not be admissible where the description is inadequate.
	Conveyancing Deeds - Form and Content (Description of Land Conveyed - Reformation)	A deed will be reformed if it does not represent the parties' agreement because of: - Mutual mistake; - A scrivener's error; or - A unilateral mistake caused by misrepresentation or other inequitable conduct.
	Conveyancing Deeds - Delivery and Acceptance (Delivery - In General)	A deed is not effective unless it has been delivered and accepted. Delivery refers to the grantor's INTENTION to make a deed presently effective (i.e., "donative intent") even if possession is postponed. Delivery may be satisfied by manual delivery, notarized acknowledgment by the grantor and recordation, or anything else showing the grantor's intent to deliver. Parol evidence is admissible on the issue of intent to deliver, but not to show that delivery was conditional. Note: Title passes on delivery--even if the grantee wants to give it back, it is not a cancellation or "reconveyance." To return title to the grantor, the grantee must draw up a new deed and deliver it to the grantor.
	Conveyancing Deeds - Delivery and Acceptance (Delivery - Retention of Interest by Grantor or Conditional Delivery)	Retention of control or interest by the grantor (e.g., right to revoke) indicates a lack of intent to pass title. Thus, if a grantor executes a deed but does not deliver it during his lifetime, no title passes. Failure to record a delivered deed does not affect the passage of title. A properly executed and delivered deed that provides that title will not pass until the grantor's death is valid and creates a future interest in the grantee. If a deed is absolute on its face but delivered with an oral condition, the condition is disregarded and the delivery is absolute (and parol evidence is not admissible on the issue).
	Conveyancing Deeds - Delivery and Acceptance (Delivery - Where Grantor Gives Deed to Third Party With No Conditions)	If the grantor gives a deed to a third party with instructions to give it to the grantee, there is a valid delivery. If the grantor fails to give instructions, the validity of the delivery depends on whether the third party could be considered the grantor's agent. If so, there is no delivery.
	Conveyancing Deeds - Delivery and Acceptance (Delivery - Where Grantor Gives Deed to Third Party with Conditions - "Relation Back" Doctrine)	Title usually passes when the condition occurs, but if justice requires it (e.g., grantor dies or becomes incompetent) and there is an efnorceable contract to convey, title may "relate back" to the time when the grantor gave the deed to the third party. Rights of intervening bona fide purchasers are protected.
	Conveyancing Deeds - Delivery and Acceptance (Delivery - Where Grantor Gives Deed to Third Party with Conditions - Donative Transaction)	When a grantor gives a deed to a third party to give to a donee when a condition occurs, the main issue is whether the grantor can revoke the deed before the condition occurs. Where the condition is not the grantor's death, most courts hold delivery revocable unless there is an enforceable K to convey (i.e., same as true escrow cases). Where the condition is the grantor's death, courts find delivery irrevocable where the grantor's intent was to create a future interest in the donee.
	Conveyancing Deeds - Delivery and Acceptance (Acceptance)	Acceptance by teh grantee is required in order to complete a conveyance. Most states PRESUME acceptance. Acceptance relates back to the date the deed was delivered into escrow (unless this would defeat the rights of intervening third parties).
	Conveyancing Deeds - Delivery and Acceptance (Dedication)	Land may be transferred to a PUBLIC body (e.g., city, county) by dedication. An offer may be made by written or oral statement, submission of a map or plat showing the dedication, or opening the land for public use. To be effective, a dedication must be accepted, which may be done by formal resolution, approval of map or plat, or actual assumption of maintenance or improvements.
	Covenants for Title and Estoppel by Deed Types of Deeds (Overview)	There are three types of deeds used to convey property interests other than leaseholds: 1) General warranty deed; 2) Special warranty deed; and 3) Quitclaim deed.
	Covenants for Title and Estoppel by Deed General Warranty Deed (Covenants Contained)	1) Covenant of Seisin: the grantor covenants that she has the estate she purports to convey; she must have both title and possession at the time of the grant. 2) Covenant of Right to Convey: grantor has authority to make the grant (title alone sufficient). 3) Covenant Against Encumbrances: covenant against the existence of physical or title encumbrances 4) Covenant for Quiet Enjoyment: grantee will not be disturbed in possession by a third party's lawful claim of title 5) Covenant of Warranty: grantor agrees to defend against reasonable claims of title by a third party and to compensate grantee for any loss sustained by the claim of superior title; 6) Covenant for Further Assurances: grantor promises ot perform acts reasonably necessary to perfect title conveyed.
	Covenants for Title and Estoppel by Deed General Warranty Deed (Breach)	Three of the covenants (seisin, right to convey, against encumbrances) are PRESENT covenants and are breached, if at all AT THE TIME OF CONVEYANCE. Quiet enjoyment, warranty, and further assurances are FUTURE covenants and are breached only upon disturbance of the grantee's possession. Presesent covenants cannot be enforced by remote grantees, but future covenants run wth the grantee's estate.
	Covenants for Title and Estoppel by Deed General Warranty Deed (Damages and Remote Grantees)	If there are successive conveyances by general warranty deed and the last grantee is evicted by lawful claim of title, he may sue ANYONE up the line. Some states allow him to recover to the extent of consideration received by a defendant-covenantor. Other states limit recovery to the lesser of what he paid or what the defendant-covenantor received.
	Covenants for Title and Estoppel by Deed Statutory Special Warranty Deed	In many states, use of the word "grant" in a deed creates by implication two limited assurances against acts of the grantor (not her predecessors): 1) That the grantor has not conveyed the same estate or any interest therein to anyone other than the grantee; and 2) That the estate is free from encumbrances made by the GRANTOR.
	Covenants for Title and Estoppel by Deed Quitclaim Deed	A quitclaim deed releases whatever interest the grantor has. No covenants of title are included or implied.
	Covenants for Title and Estoppel by Deed Estoppel by Deed	If the grantor purports to convey an estate in property that she does not then own, her subsequent acquisition of the estate will automatically inure to the benefit of the grantee. This doctrine applies where teh conveyance was by warranty deed, or where the deed purported to convey a particular estate. It is not usually applicable to quitclaim deeds. Most courts hold that title inures to the benefit of the grantee only as against the grantor. Thus, if the grantor transfers her after-acquired title to a BFP for value, the BFP will prevail over the original grantee. The original grantee can accept title or sue for damages for breach of covenant.
	Conveyancing Deeds - Delivery and Acceptance (Delivery - Where Grantor Gives Deed to Third Party with Conditions)	A valid conditional delivery occurs when a grantor gives a deed to a third party with instructions to give it to the grantee when certain conditions occur (e.g., if grantee pays purchase price before a certain date). Parol evidence is admissible to show that delivery is conditional. A grantor can revoke only if: (i) the condition has not yet occurred, and (ii) there is no enforceable written contract to convey. If a grantee wrongfully acquires the deed from the escrow holder prior to performance of the condition, title does not pass and the grantee cannot give good title to a subsequent purchaser.
	Recording Types of Recording Acts (Race-Notice Statutes)	Under a race-notice statute, a subsequent BFP is protected only if she takes without notice AND records before the prior grantee. Typical Language: "No conveyance or mortgage of an interest in land is valid against any subsequent purchaser for value without notice thereof whose conveyance is first recorded. Effect: Subsequent BFP who records first prevails.
	Recording Types of Recording Acts (Race Statutes)	Under a pure race statute, whoever records first wins. Notice is irrelevant. Very few states have such statutes. Typical Language: "No conveyance or mortgage of an interest in land is valid against any subsequent purchaser whose conveyance is first recorded." Effect: Grantee who records first prevails.
	Recording Definition of Bona Fide Purchaser (BFP)	A BFP is a person who: (1) PAYS VALUE for the interest and 2) has NO NOTICE (actual, constructive/record, or inquiry) of a prior instrument conveying that same interest to someone else. Thus, a purchaser or mortgagor can be a BFP, but a donee, heir or devisee cannot be, b/c they do not give value.
	Recording Judgment Creditors	Most states permit a plaintiff who obtains a money judgment to place a judgment lien on the defendant's real property by filing the judgment in the appropriate county office. The majority, however, hold that such a judgment creditor is NOT protected by the recording statute against a prior unrecorded conveyance by the defendant.
	Recording Shelter Rule	A person who takes FROM a BFP will prevail against any interest the transferor-BFP would have prevailed against. This is true even if the transferee had actual notice of a prior unrecorded conveyance. This rule does not, however, help a transferee who previously held title; she cannot "ship through" a BFP to get good title.
	Recording Purchaser Under Installment Land K	In most states, a purchaser under an installment land K is protected only to the extent of payment made. In a dispute with a prior claimant, the court may award the purchaser: 1) A share of the property as a tenant in common equal to the proportion of payments made; 2) A lien on the property to the extent of the amount paid; or 3) The entire property, subject to a lien to the extent of the balance still owed.
	Recording Notice (Actual)	Actual notice includes knowledge obtained from any source (e.g., newspaper, word-of-mouth, etc.).
	Recording Notice (Inquiry)	Under certain circumstances, a purchaser is required to make reasonable inquiries. He is charged with knowledge of whatever the inquiry would have revealed, even if he made none. References in recorded instruments to unrecorded transactions, unrecorded instruments in the chain of title (e.g., grantor's title documents are not recorded) and possession unexplained by the record put a purchaser on inquiry notice. The mere fact that a quitclaim deed was used does not charge the purchaser with inquiry notice.
	Recording Notice (Constructive/Record - Chain of Title)	A subsequent purchaser will be held to have record notice only if the deed in question is recorded "in the chain of title," which means that it is recorded in such a manner that a searcher could not reasonably find it. Although no one has a leagl duty to perform a title search, a subsequent purchaser will be charged with the notice that such a search would provide, whether or not she actually searches. Examples that would implicate: 1) Wild deed 2) Deeds recorded late 3)Deeds recorded before grantor obtained title 4) Deed in chain referring to instrument outside chain 5) Restrictive covenants (deeds from common grantor)
	Recording Types of Recording Acts (Overview)	There are three major types of recording acts; in all three, the burden is on the subsequent taker to prove that he qualifies for protection under the statute. 1) Notice Statutes 2) Race-Notice Statutes) 3) Race Statutes
	Recording Types of Recording Acts (Notice Statutes)	Under a notice statute, a subsequent BFP prevails over a prior grantee who failed to record. This is b/c the subsequent BFP had no actual or constructive notice at the time of the conveyance. Typical Language: "No conveyance or mortgage of an interest in land is valid against any subsequent purchaser for value without notice thereof, unless it is recorded." Effect: Subsequent BFP prevails (regardless of whether she records at all).
	Recording Title Search	In a TRACT index juris., the searcher looks at hte page indexed by block and/or lot describing the property and any instruments affecting it. In a GRANTOR-AND-GRANTEE index juris., the searcher establishes a chain of title by searching back in time in the grantor-grantee index. From that point, he then searches forward in time in teh grantor-grantee index to see if any grantor conveyed an interest to someone outside the backward chain.
	Recording Effect of Recordation	Recordation gives prospective subsequent grantees constructive notice of the existence and content of recorded instruments. It also raises a presumption of valid delivery and authenticity. However, it does NOT validate an invalid deed or protect against interests arising by operation of law (e.g., dower, title by adverse possession); to this extent, BFPs are still in jeopardy.
	Security Interests in Real Estate Types of Interests (Overview)	1) Mortgage 2) Deed of trust 3) Installment Land K 4) Absolute Deed 5) Sale-Leaseback
	Security Interests in Real Estate Types of Interests (Mortgage)	The debtor/notemaker is the MORTGAGOR. The lender is the MORTGAGEE. On default, the lender can realize on the mortgaged real estate only by having a judicial foreclosure sale conducted by the sheriff.
	Security Interests in Real Estate Types of Interests (Deed of Trust)	The debtor/notemaker is the trustor. He gives a deed of trust to a third-party trustee, who is usually closely connected to the lender (the beneficiary). On default, the lender instructs the trustee to foreclose the deed of trust by sale.
	Security Interests in Real Estate Types of Interests (Installment Land K)	An installment purchaser obtains legal title only when the full K price has been paid off. Forfeiture clauses, allowing the vendor upon default to cancel the K, retake possession, and retain all money paid, are common.
	Security Interests in Real Estate Types of Interests (Absolute Deed)	An absolute deed, if given for security purposes, can be treated by the court as an "equitable" mortgage to be treated as any other mortgage (i.e., creditor must foreclose by judicial action).
	Security Interests in Real Estate Types of Interests (Sale-Leaseback)	A landowner may sell her property for cash and then lease it back from the purchaser for a long period of time. Like an absolute deed, this may be treated as a disguised mortgage.
	Security Interests in Real Estate Transfers by Mortgagee (Transfer of Mortgage without note)	Generally, the note and mortgage must pass to the same person for the transfer to be complete. Some states hold that the transfer of the mortgage automatically transfers the note as well, unless the mortgagee-transferor expressly reserves the rights to the note. In these states, the transferee of the mortgage can then file an equitable action and compel a transfer of the note as well. Other states hold that, b/c the note is the principal evidence of the debt, a transfer of the mortgage without the note is void.
	Security Interests in Real Estate Transfers by Mortgagor	A grantee of mortgaged property takes subject to the mortgage. If the grantee signs an ASSUMPTION agreement, he becomes primarily liable to the lender, while the original mortgagor is secondarily liable as a surety. The mortgage may opt to sue either. If no assumption agreement is signed, the grantee is not personally liable on the loan, and the original mortgagor remains primarily and personally liable. Nonetheless, if the grantee does not pay, the loan may be foreclosed, wiping out the grantee's investment. Once a grantee has assumed a mortgage, any modification of the obligation by the grantee and mortgagee discharges the original mortgagor of all liability.
	Security Interests in Real Estate Lien Theory vs. Title Theory vs. Intermediate	According to the lien theory, the mortgagee is considered the holder of a security interest only and the mortgagor is deemed the owner of the land until foreclosure. The mortgagee may not have possession before foreclosure. According to the title theory, legal title is in the mortgagee until the mortgage has been satisfied or foreclosed, and the mortgagee is entitled to possession upon demand at any time. In a few states that follow the intermediate theory, legal title is in the mortgagor until default, and upon default, legal title is in the mortgagee. The mortgagee may demand possession when a default occurs.
	Security Interests in Real Estate Priority (General Rule)	A mortgage's priority is usually determined by the time it was placed on the property. Foreclosure does not destroy any interests senior to the intere being foreclosed. But it generally destroys all junior interests. Failure to include a junior interest holder in a foreclosure action results in preservation of that party's interest. See Secured Transactions.
	Security Interests in Real Estate Transfers by Mortgagee (Transfer of Note without Morgage)	The note can be transferred without the mortgage, but the mortgage will automatically follow the properly transferred note, unless the mortgagee-transferor expressly reserves the rights to the mortgage. No separate written assignment of the mortgage is necessary. See Commercial Paper re: how to become, and effects of becoming, an HDC.
	Security Interests in Real Estate Redemption in Equity vs. Statutory	Redemption in Equity: At any time PRIOR to the foreclosure sale, the mortgagor may redeem the property by paying the amount due. If the note or mortgage contains an acceleration clause, the full balance of the note or mortgage must be paid to redeem. This right cannot be waived in the mortgage itself. Statutory: About half the states allow the mortgagor to redeem the property for some fixed period (e.g., six months) after the foreclosure sale has occurred.
	Zoning Nonconforming Use	A use that exists at the time of passage of a zoning act that does not conform to the statute cannot be eliminated at once. Amortization is the gradual elimination of such uses.
	Zoning Special Use Permit	A special use permit is one that must be obtained even though the zoning is proper for the intended use. It is often required for hospitals, funeral homes, drive-in businesses, etc.
	Zoning Variance	A variance is a departure from the literal restrictions of a zoning ordinance granted by administrative action.
	Zoning General Rule	The state may enact statutes to reasonably control the use of land for the protection of the health, safety, morals and welfare of its citizens. The zoning power is based on the state's police power and is limited by the DPC and EPC of the Fourteenth Amendment, and the "no taking without just compensation" clause of the Fifth AMendment. Cities and counties can exercize zoning power only if so authorized by a state enabling act.

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