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215 Cards in this Set

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Real Property Approach: What are the three kinds of interests in land?

Estates (present/future interests, concurrent estates); easements; restrictive covenants
What are the present possessory estates?

Fee simple, life estate, fee tail (abolished)
Characteristics of FSA

Fully alienable, divisible, and descendible

Effect of restraints on alienation on FSA

(To A, but if A tries to sell, then to B)


Generally VOID.

Exception: right of first refusal is valid. To A, but if A tries to sell, then B has right of first refusal (B has option to buy land before A can sell to someone else)

How to create FSA?

to A, to A and his heirs.
How to create life estate?

To A for life. Always measured by life.

What is life estate pur autre vie

What happens when life tenant dies before measuring life? What happens is measuring life dies first?

life estate measured by the life of another. If the life tenant dies before the measuring life, then the life estate goes to the estate of the deceased until the measuring life dies. If the measuring life dies first, then the life estate terminates.

To A, for the life of B.

Transferability of life estates?

Alienable. You can transfer the life estate but when the measuring life dies, it goes back to O.

Effect of restraints on conveyance on life estate? i.e. Provision terminating life estate if life tenant tries to convey away the life estate is valid.

How to create Fee simple determinable

Grant includes clear conditional language, violation of condition results in automatic forfeiture of the interest.
Future interest = possibility of reverter

To A, so long as Blackacre is used for recreation.

A = FSD; O = POR

How to create fee simple subject to condition subsequent?

Future Interest?

Characteristics: divisible, descendible, alienable, subject to the condition.

Clear conditional language and express reservation of right of entry in the grantor. Its O's prerogative to exercise right of entry.

To A, so long as Blackacre is used for recreation, but if Blackacre ceases to be used for recreation, O reserves right to enter and take possession.

Future interest is the right to entry

How to create fee simple subject to executory interest?

Future Interest?

Characteristics: divisible, descendible, alienable.

Clear conditional language, violation creates right in THIRD PARTY.

To A, but property ceases to be used for residential purpose during As life, to B.

A = fee simple subject to executory interest

B = shifting executory interest

What future interests does GRANTOR hold?

Reversion (after a life estate)

Possibility of reverter (FSDPOR)

Springing Executory Interest (after FSSEL) (To A if A graduates Law School)

Future Interests in GRANTEE?

Contingent Remainder

Vested Remainder OR Indefeasibly Vested Remainder

Vested Remainder Subject to Complete Divestment

Vested Remainder Subject to Open

Vested Remainder

To A for life, then to B.

A = life estate, B = vested remainder

B is ascertainable and no conditions to interest vesting.

B's interest is indefeasibly vested. Even if B dies before A, B's interest will go to his estate.

Vested Remainder Subject to Complete Divestment

To A for life, then to B; however if B dies before A, to C.

Life estate is limited by law of....

3 kinds of waste + definitions

Voluntary (Affirmative Waste) = affirmative conduct that causes decrease in value of prop OR consumption/exploitation of natural resource.

Permissive = a failure to maintain the property.

Ameliorative waste = when life tenant alters the property substantially but it increases the value of the land.

How to avoid liability for voluntary waste? PURGE

Prior Use

Reasonable repairs



GR: Prior Use

GR is that depletion of natural resources is affirmative waste.

Exception = Open Mines Doctrine. Where consumption of the natural resources was the normal use of the land then can continue its normal use. So if it was a coal mine, keep mining coal.

Permissive waste - what is maintenance?

Maintenance means that the life tenant must continue the normal use of the property and has the obligation to make reasonable repairs.

Repair NOT replace.

Life tenant obligation for taxes

Life tenant must pay all ordinary taxes.

Life tenant obligation for mortgage payments
Life tenant pays the interest on the mortgage but does not make any principal payments. Future interest holder pays principal.

When can a life tenant allow ameliorative waste to occur?

Where changed conditions have made the property relatively worthless, life tenant can alter without incurring liability to future interest holder.
How to create Joint Tenancy w/ Right of Survivorship? TTIP

Four unities must be met: interest must have vested at same TIME; all must have TITLE from same instrument; all tenants take same INTERESET (kind and amount); all have same rights of POSSESSION

Time, Title, Interest, Possession

What is a right of survivorship?

surviving tenants take AUTOMATICALLY on death of a joint tenant. A, B, and C each have equal 1/3 interests. C dies; A and B each own 1/2.

Characteristics of JT?

not DIVISIBLE or DESCENDIBLE, is ALIENABLE. Severs that JTs interest and creates Tenancy in COMMON.

A, B, and C = JTs. Each has 1/3. C sells to D. D is tenant in common with A and B. A and B remain JTs.

How to terminate JT??

SPAM: Sale, PArtition, Mortgage (in title theory state)

What is Partition?

JT asks court to partition prop. 3 ways: by voluntary agreement of how the property will be divided; partition in kind (court draws lines); or forced sale of the entire prop - equal division of proceeds.

What is Lien Theory?

When a mortgage is executed, a lien attaches to the title, but title is not actually transferred. The unities are NOT disturbed and mortgage doesn't destroy JT.

Title Theory?

Mortgage is severance of JT because when Mortgage is executed, title passes to mortgagee. Destroys unities.

Which is FL?

LIEN THEORY. Mortgage does not destroy JT

Rights of Creditors to reach JT interest?

Creditors can reach during the lifetime of a Tenant. Forced sale in the JTs interest results in severance when sale takes place.

Once JT dies, the interest AUTOMATICALLY passes to the other JTs by survivorship. Creditors can no longer reach.

How to create Tenancy by Entirety?

Any grant of a concurrent estate to H&W gives rise to tenancy by entirety provided 4 unities are met.


Right of survivorship

NOT alienable

NOT divisible

NOT descendible

Cannot unilaterally create mortgage.

How to terminate?


Mutual agreement IN WRITING


Execution by a JOINT creditor

What is tenancy in common?

Default estate. Only shared unity is that of POSSESSION. Each is entitled to possess the whole but owns their own individual part. NO SURVIVORSHIP!
Characteristics of Tenancy in common?
Freely divisible, descendible, and alienable. NO SURVIVORSHIP RIGHTS.

What are the rights of a co-tenant to rents/profits?


Generally, don't have to share profits with your co-tenants

EXCEPT where there is: ouster, an agreement to share, rent from third parties; or where there is depletion of natural resources (farming doesn't count)

What is ouster?

Where one co-tenant is either keeping the other off the property OR one is claiming a right of exclusive possession. Must share profits made from that time.
Rights of possession of each co-tenant?

Each has right to possess the whole. Cant keep the other off.

What is Contribution?

What does each have to pay for?

right of one co tenant to force the other to pay fair share of expenses for the property.

Don't have to pay for improvements (ex: new house);

co-tenants have to pay fair share on mortgage (if both on it); taxes; and fair share for necessary repairs.

What are the non free hold estates?

Tenancy for years

periodic tenancy

tenancy at will

tenancy at sufferance

What is a tenancy for years

tenancy for a specified period of time with a start and end date.

When does the SoF have to be satisfied?

if the tenancy for years is more than a year. Tenancy for a year or less can be ORAL
Do you need notice to terminate tenancy for years?

No notice is required.

What is a periodic tenancy

tenancy that repeats.

How to create periodic tenancy?

By express agreement

Implied agreement (parties agree to tenancy but don't agree to a duration) (ex: A leases apartment to B for $500/month but no duration stated)

By operation of law (2 ways - see next)

How to create a periodic tenancy by operation of law?

1) With an ORAL lease that violates the SoF (ex: L and T orally agree to enter into a 5 year lease with rent of $1,000 a month. Not a tenancy for years because violates SoF. Creates periodic tenancy when T sends check and L accepts)

2) Hold over tenants (tenancy at sufferance)

What is a hold over tenant?

tenant who was on the property under a valid lease but the lease has expired and the tenant remains on the property. When tenant holds over but sends next months check for rent and LL cashes it, a periodic tenancy for month to month is created.
What is the term for the kind of possession a hold over tenant has?

Tenancy at sufferance. Refers to the possession that the tenant has over the property.

How to terminate periodic tenancy?

Exception for year to year?

Must give notice that is at least equal to the length of the period.

If month to month - then one month notice.

If year to year then 6 months notice.

Who creates the tenancy at sufferance?

How to create a tenancy at sufferance?

The Landlord has options with the hold over tenant. They can:

1) SUE to evict the tenant. Sue in trespass and recover damages for the holdover OR

2) Impose a new periodic tenancy

If an expired tenancy was for less than a year, the new tenancy will me measured by what?

the period for rent payments. For residential property, usually results in a month to month tenancy

In the case of commercial property, if the expired tenancy was for a year or more the new tenancy will be measured by what?

Commercial hold over tenants result in a new year to year tenancy.

When can the LL impose a new periodic tenancy?

When it is REASONABLE under the circumstances. Cant impose bc moving van is a day late.
Can the LL raise rent for the new periodic tenancy?

If the LL gave the tenant notice before the original lease was expired as to the raised rent, then YES. New higher rent can be collected.

What is the FLORIDA rule for holdover tenants?

FL law does NOT allow the LL to impose a new periodic tenancy but they can collect double rent for the time that the tenant is in holdover.

What is a tenancy at will?

tenancy where either party can terminate at any time.

Notice to terminate?

Either party may terminate by giving the other notice of termination and reasonable time to vacate the premise.
Termination by operation of law of tenancy at will?

Death of either party

waste by the tenant

assignment by the tenant

transfer of title of the prop by LL (LL sells to 3rd party)

Lease by the LL to a third party

What are the duties of tenant?

Pay rent

Maintain the premise

What are the tenants maintenance requirements if the lease is silent?

Tenant cant commit waste.

If the premise are destroyed without the tenants fault, tenant given opportunity to terminate lease

What are tenants maintenance requirements if lease includes covenant to repair?

If there is an express promise in lease, T must abide by the terms. GR is not responsible for general wear and tear but may be responsible if covenant expressly includes that T is responsible for this.

What are LL remedies when T fails to pay rent?

CL: LL can sue for damages but could only collect past due rent

Maj Rule: LL may sue for damages and terminate lease (evict T)

What are LL remedies if T abandons lease?

LL can accept offer of abandonment and retake the premise terminating the lease. T has no further rent obligation.

LL can relet the premise and hold T liable for deficiency. Maj Rule requires LL to mitigate damages by trying to find a new tenant.

What is the FL rule?

LL doesn't retake = may hold tenant liable for remainder of rent as it comes due. No duty to mitigate.

LL retakes premise = LL must mitigate damages and try to find new tenant/hold old tenant liable for deficiency

Duties of LL?

Must deliver possession of the premise

Must deliver premise in habitable condition

implied covenant of quiet enjoyment

What is the LL duty to deliver in habitable condition?

Implied warranty of habitability (note: CL didn't have this. If delivered physical possession, then satisfied)

This applies to residential leases only. Obligates LL to provide and maintain leased premise to be fit for basic human habitation

What is retaliatory eviction?

If T lawfully reports LL for violation of housing code (and violation of implied warranty of habitability) LL is barred from penalizing T w/ eviction.

What are T's remedies for violation of implied warranty of habitability?

T can move out and terminate lease (no more rent required)

T can stay on property and sue for damages

T can make reasonable repairs and deduct cost from future rent payments

What is the implied covenant of quiet enjoyment?

Implied promise in every lease not to interfere with tenants quiet enjoyment of the leased premise

how does LL breach implied covenant of quiet enjoyment?

Total eviction

Partial Eviction

Constructive Eviction

What is total eviction?

Remedies for T?

Direct physical invasion of T possession

Termination of lease, no more rent obligation

What is Partial Eviction?

Remedies for T?

LL physically excludes T from some portion of leased property

T remedies = stay on what's left and stay for free.

What if there is partial eviction by someone other than LL?

Rent is proportionately reduced to reflect the amount of the premise taken

What is constructive eviction?

not physical eviction but interference w/ T enjoyment and use

What are the elements to establish constructive eviction? SING

LL failure to provide a service (not 3rd party)


Substantial Interference w/ T use

Notice (T notifies L who fails to respond)

Get out (T vacates in reasonable time)

What is an assignment of lease?

transfer of ALL of T's interest

What is assignee's liability for payment of rent?

T is liable for rent if there is: privity of Estate or privity of contract.

There is privity of estate between present LL and present T.

Privity of K between LL and original T where there is an agreement(the lease)

Assignees liability on other lease covenants?

A covenant will run with the land if it touches and concerns the land. If performance of the covenant makes the land more valuable or useful then it touches and concerns and Assignee will be responsible for it.

Liability for successive landlords on the lease?

Original LL continues to be liable to original T because of privity of K

Successor LL may be liable to original T if there is EITHER privity of K or privity of estate AND the covenant runs with the land (touches and concerns).

LL 2 will be in privity of estate, will be responsible for covenants that run w/ land.

What result if successive LL expressly assumes the lease agreements?

LL two will be liable for all of the covenants in the lease, even those that don't run with the land.
Sublease liability for rent?

Sublessee is not liable for rent

LL can recover rent from anyone w/ whom he is in privity with (K or estate) In a sublease, the sublessee is not in either privity. Privity of estate remains with sublessor because only part of their interest is transferred in the sublease.

What is a non-assignment or non sublease clause?

Are they valid?

Effect of violation?

clause in lease that says tenant may not assign or sublet the premise without express permission of LL.


transfer is VOIDABLE by LL.

Courts strictly construe non assignment/non sublease clauses...this means what?

a non assignment clause wont prevent subleases; non sublease clause wont prevent assignments.

What is the effect of the LL consent?

Permission given to assignment once means that the clause is waived UNLESS LL states otherwise at the time of giving permission. LL must reserve right to approve future assignments/subleases.

LL can approve an assignment impliedly by accepting a check from an assignee or sublessee.

What are the two kinds of condemnation?

Full and partial
Is T excused from paying rent in partial condemnation?

No. T still pays full rent

Will tenant share in condemnation award for partial taking?
T gets an amount of money from government that would be equal to the rent paid for the part taken.
Will T have to continue to pay rent when there is complete taking?

NO - this is because complete taking extinguishes the lease and T is excused from paying further rent
Will tenant share in condemnation award for complete taking?

Maybe. T shares ONLY to the extent that the fair rental value of the property exceeds the amount of rent due under the lease.

Ex: if the fair rental value was $3000/month but T was paying $1000/month then T shares to the extent that the fair rental value exceeds the rent that was due - $2,000 x months left on lease.

What is the GR for tort liability for LL to T?

LL has no duty to T or T's invitees for injuries sustained on the premise for the period of the lease.

5 exceptions to LL tort duties


Common areas

Latent defects

Assumption of repairs

Public Use

Short Term lease of furnished apt

Duty to maintain common areas

LL liable for failure to exercise reasonable care in maintaining common area

Duty for latent defects

LL is under duty to disclose latent defects LL knows about or has reason to know of.

A defect that T doesn't know of and wouldn't discover.

What is assumption of repairs?

If you assume the duty to repair either express or implied (i.e. by fixing in the past) then you have to be reasonable in making repairs. No negligence in completing repairs

Public Use

LL knows of defects

LL knows T wont fix the defect

LL knows public uses the premise

LL must repair

Short term lease duty

rental of a furnished dwelling for a short term makes LL liable for defects even if LL didn't know of them or has reason to know. Liable for any defects causing harm.

What is T's tort liability?

T always liable to 3rd party invitee for negligent failure to correct dangerous conditions on leased premise, regardless if LL can be liable too.
GR For fixtures?

Fixtures become part of the property. Cannot be removed by seller or tenant.

Note that if there is an express agreement regarding the fixture, it will control.

When is an item a fixture?

Intent of the person installing it. Did they intend that the item remain with the property?

4 common factors relevant to intent?

1) degree of attachment

2) what is the general custom

3) how much harm will result to the premise on removal? Substantial harm usually means no removal

4) Are the fixtures TRADE FIXTURES? i.e. personal property used in trade or business. These are generally NOT fixtures and can ALWAYS be removed.

When can T or seller remove fixtures?

T must remove before T vacates at end of sublease

S must remove item before closing or seller will lose it.

Think: washers and dryers. These are personal property fixtures. Can remove.

What is an easement?

A non possessory interest in land involving a right to use the land

Define affirmative easement

right to do something on the servient land.

define negative easement

right to compel the servient owner to refrain from something. Usually limited to LASSS

Light, air, support, stream, scenic views

Define appurtenant easement
easement that directly benefits the use of another parcel of land. Ex: path over lot A that benefits lot B in the use and enjoyment of lot B

Define easement in gross

easement where there is no dominant estate. there is only ONE parcel of land. That parcel is burdened by the easement. Easement is either for a commercial use (ex: utility easements; easement for billboard); or for personal use (ex: easement to A to fish on B's land; swim in B's pool).

Servient estate is the estate that is....

burdened by the easement

dominant estate is the estate that is....

benefitted by the easement

how to create an easement? PING

Prescription (COAH)

(continuous, open, actual, hostile)




How to create an easement by prescription?


Continuous use (seasonal use may satisfy)

Open/notorious use

Actual use of the easement

Hostile use - any grant of permission destroys

Implied easements arise in 2 situations

Easement from previous use by common grantor (implied easement)

Easement by absolute right of access rule (necessity)

What is a common grantor?

How to form implied easement from previous use by common grantor?

A is a common grantor where A owns a large parcel of land and grants part of it to B. A had always used a path across B's land. Easement arises where there was previous use that was:

1) continuous

2) apparent

3) reasonably necessary

How is an easement of absolute right of access formed? (Easement by Necessity)

Where a grant of land is made but the land is totally landlocked from access. The servient estate gets to choose where the easement is located. Location must be reasonable

Express easement arises from a...

grant to someone else or reservation of the easement when the land is sold to someone else.

How to transfer the benefit of an easement appurtenant?

All who subsequently succeed to title of a dominant estate become entitled to the benefit of the easement appurtenant. Easement cant be transferred separately from dominant estate.
Does the deed to the dominant estate have to mention the easement?

No. All who succeed in title to the benefitted estate have benefit of using the easement even without mentioning it in the deed.
Can you transfer a commercial easement in gross?

Yes. Commercial easement in gross always transfers. So if Gulf Power sells to Southern Company then Southern Company gets to keep using the same power lines.
Can you transfer a personal easement in gross?

Easement in gross that is personal is not transferrable. B cant transfer her right to use A's pool to C.
GR for transfer of easement burden when servient estate is sole?

Easements are always binding on subsequent holders of servient estates, even if the easement is not specifically mentioned in the deed provided that the subsequent holder had notice of the easement.
How does a successor in title have notice of the easement?

Actual knowledge

Constructive knowledge (easement was recorded)

Inquiry notice (buyers physical inspection of land & sees physical appearance of easement)

How to define the scope of the use of an easement?

Terms of the easement generally define scope.

Where agreement is silent, the easement is assumed to be perpetual (lasts forever) and the use is presumed to be reasonable use with the development of the dominant estate.

What is reasonable use
reasonable use with the development of the dominant estate is what would have likely been contemplated by the parties when the easement was granted.

How to remedy excessive use?

enjoin the excessive use but do not terminate the easement

Who is responsible for repair to easement?

Holder of the BENEFIT is responsible for making repairs. If the benefitted estate causes damage to servient state in making repairs, must repair the damage.

How to terminate an easement? END CRAMPS




Condemnation of serv. land (eminent domain)




Termination by estoppel

servient landowner materially changes position in reasonable reliance that the easement wont be enforced. Must have: 1) representation of relinquishment from dominant estate and 2) servient estate changes their position in reliance
Termination by necessity

once the necessity that gave rise to the implied easement no longer exists, the implied easement automatically terminates
Termination by abandonment
Intent to abandon must be manifested by holder of dominant estate by taking some physical action that would show their intent to abandonment. Mere non-use is not enough
Termination by merger

Merger is done where there is unit of ownership of the two parcels (dominant and servient)

If the land is later divided again and no longer under one ownership, easement is not automatically recreated. We don't mess with dead stuff.

Termination by release

A valid release must be in writing and comply with deed formalities

What is a license?

a limited privilege to enter land for a specific purpose/use. generally informal and freely revocable.

this is a CONTRACT right.

liability for wrongful revocation of license?

Damages (contract theory)

A ________ is a license.


GR for ticket holders to enforce rights?

Ticket holders have no PROPERTY right. Cant sue to regain entry. Can sue for money damages for breach of K.

When is a license IRREVOCABLE?

How to enforce?

Where an easement was attempted; but unsuccessful bc of SoF.

When the license holder spend considerable money on the property in furtherance of an oral license.

Enforced by estoppel.

What is a profit?

Right to go onto land of another and take away natural resources. Grant of profit = grant of implied easement.

Analyzed by same rules as for easement

What is a covenant?

Promise to do or not do something on the land.

I promise not to build for commercial purpose (restrictive)

I promise to maintain the land (affirmative)

How to distinguish between covenant and equitable servitude?

What remedy is PL asking for?

Covenant = money damages

Equitable Servitude = injunction for enforcement

When PL wants money damages, one property is ________ and the other is ___________ by the promise to do or not do something

Benefited by the promise

Burdened by the promise. No dominant and servient.

When will a BURDEN run with the land?


Writing (promise in writing)

Intent of original parties for it to run

Touch and Concern

Horizontal privity

Vertical Privity

Notice to successor

What is horizontal privity?

Original parties were in privity of estate

Grantor/grantee; LL/T; mortgagor, mortgagee

What is vertical privity?

Where there is a nexus between one of the original parties and their successor. Look for a non-hostile connection (contract, devise, descent, some land transfer).


When does a BENEFIT run?



Intent for benefit to run

Touch and Concern

Vertical Privity

Notice to successor

An equitable servitude is a _____ that is enforced in _______.


equity by injunction

How to create an equitable servitude?




Touch and concern


Equitable Servitude


How to create an implied equitable servitude? Common Scheme Doctrine
General scheme by subdivider when the sales began and the successors were on notice (AIR) Actual, Inquiry, Record (Constructive - in deed)

Defense to enforcement of equitable servitude?

Doctrine of Changed Conditions: the restriction will be terminated when change of the circumstances are so pervasive that it affects the entire area and renders the purpose of the restriction moot.

Unclean hands (PL made wrongful use too)

Acquiescence (PL allowed another neighbor to make the wrongful use)

Laches (PL sat on their rights)

What are the elements of adverse possession? CHANE




Notorious / open


Is possessors intent relevant?

No if possessor doesn't know they are wrongfully on the land, doesn't matter if other elements are met. No intent requirement
What is the FL SoL for AP?

7 years

The AP SoL does not run when...

When the owner of the land is disabled at inception of the AP. So if wrongfully on land and actual owner is insane, SoL doesn't start for AP

Infancy, incarceration, insanity

Note: intervening disability doesn't stop clock

What is tacking?

When not allowed?

Where AP may tack his time to his predecessors to meet SoL time. Must have privity (non hostile nexus) between AP1 and AP2.

NO Tacking when AP2 ousts AP1.

Exception to the ACTUAL possession requirement? Color of title
Color of title is where X makes a claim of title to land but claim is not valid. If X goes onto property under color of title to 100 acres and only actually possesses 75 acres for 7 years, X obtains title to 75 acres PLUS the 25 other acres under Doctrine of Constructive AP.
What is the GR for Doctrine of Constructive AP?

expands AP to the full extend to the color of title under which AP makes claim to the prop. The amount of land actually possessed must be reasonable in relation to the whole. The property must be contiguous
Second Exception to actual possession requirement of AP:

Leasing land to a third party is possession for AP.

Can there be AP vs. a co tenant?

No adverse possession against a co-tenant unless the co-tenant in possession excludes the other from possession AND the period for SoL runs.

AP vs. holder of future interest rule?

The AP clock doesn't start running against the holder of the future interest until it becomes possessory.

Ex: A has life estate, remainder to B. C meets requirements for AP during A life estate. C gets the life estate. For C to get the remainder in FSA, must meet all requirements for AP vs. B too. So must remain for 7 years of B's interest too.


When the condition happens, the clock starts running again on the holder of POR.

Is title acquired by AP marketable?

NO - must initiate a quite title action
Conveyancing happens in two steps:

1) closing (governed by contract of sale)

2) conveyance (governed by prop law)

When does the contract of sale exist?

ESCROW PERIOD -- the time K is signed until deed transferred at closing
SoF requirements for land sale k?

Must be in writing and signed

must include description of property

Names of parties

Price term

Exception to SoF writing? Part Performance

Payment of part of the K price


Improvements to land

must have 2 of the three.

Doctrine of equitable conversion addresses who bears ___________.

Risk of loss

Once the K is signed, who bears risk of loss?

Buyer. After signing, B is treated as owner of the land and seller holds only equitable title for security purposes.

What happens if one party dies before closing during escrow?

if either party dies before closing, specific performance still enforceable. Seller still has to sell (treated as personal property interest in money) buyer still has to buy (treated as real property interest)

What is marketable title?

Every land sale K has implied promise of marketable title. This is title that is reasonably free from doubt - free from defect.
How to satisfy marketable title requirement?

Proof of title given to buyer

Title free of encumbrances (easements, mortgages, restrictive covenants other than those DISCLOSED to buyer)

Valid legal title as of closing (can use money from sale to satisfy mortgage)

What are not considered encumbrances on title?

utility easements, zoning ordinances, violations of housing codes

If buyer finds out that S cannot convey marketable title, buyer must...

Notify seller of the defect and allow seller reasonable time to cure even if this postpones closing

Buyers remedies for failure to deliver marketable title?


Sue for Money Damages

Specific performance (w/ reduction in sale price to reflect defect in title)

GR: Time is of the essence in land sale K

Generally, time is not of the essence unless K says so or parties intended time to be of the essence.

What if time is of the essence clause is violated?

The party who failed to perform is in complete breach of K and cannot enforce it.

What effect where closing is delayed and no time is of the essence clause?

No breach. GR is that as long as performance is in a reasonable time, usually 2 months from specified closing date

Remedies for breach of K for land sale K?

Damages (difference between K price and value of property as of date)

Liquidated Damages (Buyers deposit will be forfeited in event of B breach...must be reasonable - abt 10% of K price)

Specific performance - land is always unique

Remedies for discovery of defects after closing?

GR: Buyer cannot recover bc buyer should have inspected

Exception: Active concealment - S cannot actively conceal defects. Misrepresentation or fraud on part of S; S failure to disclose defects in prop that S knew of or should have known that materially affects value of Prop. (Johnson)

When does a deed become valid?

Consideration that is required for valid deed?

Execution by grantor and delivery

Acceptance (implied unless express rejection)


GR is that deed must _________ the land with ________ in order to pass title.
describe the land with sufficient accuracy Must identify the property being transferred.

Can hold a deed void for ____


Delivery of deed test:

Did grantor have the necessary intent? No physical transfer required

A properly executed deed raised a ______ of delivery, even if grantee ____________.

presumption of delivery even if grantee knows nothing of the deed

But if grantor dies and still in their possession, presumption of no delivery

________ once deed is delivered. Returning deed has ___________________ effect on title.

Title is passed once deed delivered. Return to grantor has no effect on title.

Conditional delivery: To A, but not until I die creates:

O = life estate

A = vested remainder in FS

Effect of oral conditions?

Ignore them.

Delivery conditioned on grantee payment of purchase price is:

Valid. Usually use escrow.

Note: oral instructions to escrow agent are always admissible.

What are the 3 kinds of deeds?

Quitclaim (no promises made to title)

General Warranty (6 present and future promises)

Special Warranty (no defects from caused by grantor, no promises about the other owners)

Three present covenants?


Right to convey (S has title and can validly convey)

Covenant against warranties (no encumbrances other than those disclosed)

Three future covenants?

quiet enjoyment

covenant of warranty (promise to protect buyer against others who come later and make claim to title)

covenant of further assurances (seller promises to take all steps necessary to convey valid title)

Where one grantor uses general warranty deed, who can recover for breach?

All future successors in interest can sue for breach of the future interests.

A conveys to B by general warranty deed for $5000. B conveys to C by no warranty for $10,000. B breaches covenant of warranty (future covenant). B can recover $5,000 from A but nothing from B.

What is estoppel by deed?

Court finds that Grantor gave an implied covenant to Grantee that title will be conveyed to grantee. Grantee can sue to enforce transfer of title.

Effect of subsequent sale to BFP on estoppel by deed?

Sale to subsequent BFP will cut off rights of earlier grantee and cut off right to rely on estoppel by deed.

GR: Ademption and conveyance by will

if will tries to devise a specific parcel of land but T does not actually own the land at the time of death, gift fails and cannot be replaced by other property
Ademption does not apply when the land was in escrow. Devisee will receive what?

proceeds from the sale
CL rule for exoneration of mortgage at testator's death and majority change rule

CL: if devised property is subject to mortgage or other lien then must be exonerated out of testators estate (paid out of testator estate)

Modern Rule: Devisee takes property subject to mortgage

What was the common law rule before recording statutes?

Purpose of recording statute

First in time, first in right.

Protect interests of subsequent purchasers by giving them notice of prior purchaser.

Types of recording statutes?



Race Notice

FL is what kind of jurisdiction?

Pure notice

Race jurisdiction rule

first to record wins, knowledge irrelevant

Notice statute protects...

Subsequent BFP who takes without notice of the earlier transaction.

Don't have to record first, the subsequent BFP wins even if earlier BFP goes after subsequent BFP and records first.

Race Notice protects
Subsequent BFP who takes without notice of the earlier transaction AND records their deed first.

BFP Elements
subsequent purchaser for value who takes

What is an equitable mortgage

Grantor gives Grantee deed that looks like a conveyance but Grantee promises to recovney the land once grantor repays the debt to grantee. Treated as mortgage not a deed or conveyance of land
What is a deed of trust

given by debtor to third party trustee until loan is paid in full. if not repaid then trustee can seek foreclosure or resell it themselves

GR: Debtors right of redemption

Can it be waived?

at any time until the moment of foreclosure sale debtor can redeem property by paying amount that is due plus interest

GR: not in the original mortgage or deed of trust but can in a refinancing or execution of different agreement

waiving right of redemption is known as

clogging the equity

statutory right of redemption

most states allow mortgagor a statutory right to redeem property for some fixed time after foreclosure sale (usually 6 mos to a year)

Any changes in existing mortgages causes that mortgage to _____ over others

lose priority.
GR for right of lateral support

landowner has right to have her land supported by adjoining landowners and strict liability results if land is not supported.

SL for improvements to the land only if the land would have collapsed anyway, even without the weight of improvements.

GR: riparian rights

riparian owner may use all water needed for domestic purpose and are limited to reasonable use for all non domestic purposes (commercial or domestic uses)

Prior appropriation rule

first in time takes, first person to make beneficial use of water has right to continue that use against those who come later.
There is a presumption of _______ of an unrecorded instrument in Florida. BoP is on ________ to show that subsequent purchaser has knowledge.

lack of knowledge

prior purchaser

Consideration that BFP must pay is different from normal contract consideration. BFP must show that _____ was paid.

Real consideration was paid. Not just any consideration will suffice, BFP must pay VALUABLE consideration