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112 Cards in this Set

  • Front
  • Back

Present Possessory Estates:


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

• Duration: Absolute ownership, of potentially infinite duration

• Transferability: devisable, descendable, alienable

• Future Interests: none

Present Possessory Estates:


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

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

• Transferability: Passes automatically to grantee's lineal descendants

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

Present Possessory Estates:

Defeasible Fee:


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

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

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

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

Present Possessory Estates:
Defeasible Fee:
Fee simple subject to a condition subsequent (right of entry)

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

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

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

Present Possessory Estates:
Life Estate

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

Present Possessory Estates:
Life Estates:
Rights & Duties

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

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

Affirmative (voluntary waste) - natural resources: may not consume unless:
a. Repair and maintenance
b. expressly granted right to exploit
c. prior to the grant, the land was used to exploit (open mines doctrine)
d. if land only suitable for exploitation

Present Posessory Estates

Life Estates:

Permissive Waste and Ameliorative Waste

Tenant can't allow P to fall into disrepair
a. Preserve reasonable state of repair
b. Pay interest (not prin) on encumbrances
c. Pay ordinary taxes
d. Special assessments for pub. improve paid solely by life tenant if improves not likely to outlast life; otherwise, %split w/ future interest
e. No obligation to insure premises, but has an insurable interest
f. Under modern view not liable for damages caused by 3rd party tortfeasors; at CL, life tenant was liable
3. Ameliorative waste - can't destroy any property (sentimental value)
a. At CL, life tenant was always liable for improvements; now, can obtain a credit for increased value

Future Interests:
Reversionary Interests:

Reversion & Right of Entry

Reversion --> grantor grants less than they have; does not have to be express ("To A for life")

-- alienable, devisable, inheritable

-- already vested, no worries with RAP

Right of Entry --> created only by fee simple subject to condition subsequent

Future Interests:
Creation in Transferees:

Def: future interest in 3rd person that can become possessory on the natural expiration of preceding estate created in the same conveyance (usually life estate or term of years)
• Remainders never follow a defeasible fee
• Remainders never cut short or divest a prior transferee (they are polite & wait their turn)
• Two types: vested, contingent

Future Interests:
Creation in Transferees:
Indefeasibly Vested Remainder

Created in existing & ascertained person & not subject to condition precedent (not subject to divestment or diminuition).

Remainderman has right to immediate possession of estate upon normal termination of preceding estate

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

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

Created in a class (children) that is certain to become possessory but subject to diminution by birth of new class members (more kids)

• Language: A conveyes "To B for life, then to children of C" where B&C are both living. C's child D has vested reminder subject to open.
• CL rule: class closes when any member can demand possession. (thus, class can close at A's death, or at B's death, since B can't have any more children)
• Womb rule: a child in the womb at A's death is part of the class
• If C or D pre-decease A, their share passes to their devisees or heirs.

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

Vested remainder, subject to a condition subsequent.

Ex: A to "B for life, then to C, but if C dies unmarried, then to D." C has vested remainder subject to complete divestment by D's executory interest.

•Comma rule: if conditional language follows language that taken alone & set off by commas would created a vested remainder, you have a condition subsequent.

Future Interests:
Creation in Transferees:
Contingent Remainder

Created in an unborn/unascertained person OR subject to a condition precedent

1. Condition Precedent --> A to B for life, then to C if C marries D. C's remainder is contingent upon marrying D

2. Unascertained person: "A for life, then to B's kids" -- if B has no kids, remainder is contingent

Rule of destructability of contingent remainders (Part 1)

CL: contingent remainder destroyed if failed to vest at end of preceding estate.

Ex: To B for life, then to C if she reaches age 21. If B dies before C reaches age 21, C’s remainder is destroyed.

Modern: C's interest wold be converted to executory interest upon B's death, because it will divest A's reversionary estate when C turns 21.

Doctrine of Merger: If one person has all present and future interests, they merge and destroy future contingent remainders.

Rule of destructability Part 2

Rule in Shelley's case: ("A for life, then on A's death, to A's heirs", A is alive)

i. CL: remainder not recognized; present and future interests merge giving A a fee simple absolute
ii. Modern: A has life estate, A's unknown heirs have contingent remainder, O has reversion (if A dies heirless)

Doctrine of Worthier Title: ("B for life, then to A's heirs")

--> remainder in grantor's heirs is invalid and becomes reversion in grantor (B has life estate, A has reversion).

Future Interests:
Creation in Transferees:
Executory Interests

A future interest created in a 3rd party that isn't a remainder bc it cuts short an interest in another person (shifting executory interest) or in the grantor or his heirs (springing executory interest).

SUBJECT TO RAP b/c not vested
1. Shifting: always follows a defeasible fee & cuts short someone other than the grantor
Ex: "A to B for life, the to C, but if C predeceases B, then to D and his heirs."D has a shifting executive interest b/c it divests a transferee's preceding estate.

Springing: cuts short grantor's interest
Ex: "From A to B and his heirs when B marries". B has springing executory interest b/c it divests grantor.

Doesn't violate RAP bc B is the life in interest (we'll know by the end of B's life if the condition is met).

RAP General Info

No interest in property is valid unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest. If there is a possibility that it will vest more than 21 years after a life in being, it is invalid.

RAP Steps for Bar Exam

Period begins to run: Wills (at death); Deeds (delivery); Irrevocable trust (creation)

Step 1: Does RAP apply to future interest at issue? Look for: contingent remainders, executory interests and vested remainders subject to open
Step 2: Identify conditions precedent to the vesting of suspect future interests (ie, A must die)
Step 3: Find a measuring life (A) alive at date of conveyance & relevant to conditions precedent
Step 4: If we don't know w/ certainty that w/in 21 yrs of measuring life's death the future interest holders will take, or who they are, then conveyance violates RAP
• If RAP is violated, then grantor has a reversion
• Charity-charity exception
• Reform: wait & see approach. When the measuring life ends, you determine future interests at that point.

Common Violators

1. Age contingency beyond age 21 in open class ("to A for life, then to those of A's children who attain 25") (some states enacted reforms that reduce these ages to 21)

2. Unborn widow or widower -- since a person's widow is not determined until his death, it may turn out to be someone who was not alive at time of disposition.

3. Administrative contingency --> "to my issue surviving at the distribution of my estate"

No, b/c it's possible that estate won't be administered within 21 years

4. Options and rights of first refusal -- won't work if it might be exercised later then 21 years. (Does not apply to options to purchase held by lessee)

5. Executory Interest following a defeasible fee ("to A for so long as no liquor is consumed on the premises, then to B")

6. Fertile Oct - old people can still have kids - some states have set ages at 55 or something close, or admit medical testimony contradicting fertility

Class Gifts

Main Rule: "Bad as to one, bad as to all" - class must either close or all conditions precedent must be satisfied or it violates RAP

Gift to subclass exception - "Income to A for life, then to A’s children for their lives, then to A’s children’s issue."

--> each subclass gets evaluated separately. Here, A's kids living at time of the disposition are good, but gifts to after born issue of children of A violate the Rule.

Per capita gift exception - can evaluate each member individually if the gift is a fixed amount - ie, "1k to each of my great-grandchildren"

Rule against restraints on alienation:
Types of Restraints

GR: Any restriction on the transferability of a legal (not equitable) interest is void.

3 Types:

1. Disablity restraints, under which attempted transfers are ineffective (void on any type of legal interest)
2. Forfeiture restraints, under which an attempt causes forfeiture
3. Promissory restraints, under which an attempted transfer breaches a covenant

Rule against restraints on alienation:
Restraints on a fee simple

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

Rule against restraints on alienation:
Restraints on a life estate

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

Rule against restraints on alienation:
Other valid restraints on alienation

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

Concurrent Estates:
Joint Tenancy

Distinguishing feature: Rt of Survivorship

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

Concurrent Estates:
Joint Tenancy:
Creating a JT at CL

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

Concurrent Estates:
Joint Tenancy:

Ways a JT can be severed:

1. Inter Vivos Conveyance where one JT transfers her entire interest --> new owner takes as tenant in common (mere act of entering sales K severs JT due to equitable conversion)

2. Mortgage --> only destroys JT if mortgage is foreclosed and property sold.
3. Leases --> split on whether one JT leasing causes a severance

4. Murder -- some states place constructive trust on one JT's interests where she murders the other

5. Partition

Concurrent Estates:
Joint Tenancy:

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

Concurrent Estates:
Tenancy by the entirety

• Recognized in 21 states, it is a marital estate with RT of S. CL -- presumptive in any conveyance to married people.

Severs: by agreement, death, divorce, or execution by joint creditor.

-- Mortgage/Deed by one ineffective
-- Creditors of one spouse can't touch this property

Concurrent Estates:
Tenancy in Common

Concurrent estate with NO survivorship

3 features:

1. Each co-tenant owns: individual part and each has a right to the whole
2. Each interest is descendable, divisable, and alienable (b/c no RT to S)
3. Presumption favors this type (TiC)

Concurrent Estates:
Co-Tenant Rights/Duties

1. Right to possession of the whole, no right to exclusion of any part ("ouster").

--> Co-tenant cannot sue for possession unless ousted.

2. Each has right to retain profits from OWN use but must share net rents from 3Ps and net profits from exploitation (mining)

3. Each may encumber own interest; in JT, lender runs risk that obligor will die before foreclosure, thereby extinguishing lender's interest.

4. Partition -- any co-tenant can seek judicial partition

5. Repairs -- you pay more than pro rata share, get contribution (only if others had notice)

6. No right of contribution for improvements

7. Contribution for mortgage & taxes, but if sole possessor, only to extent exceed FMV for rent

Tenancy for years

Fixed Duration: start and end are fixed.

1. Creation: Oral or written; SOF if > 1 year

2. Automatic Termination at fixed time

3. CL: LL could not sue to collect rent not due yet

4. Modern: anticipatory repudiation damages ok (LL can evict non payer and sue for all rent)
5. Surrender: Tenant surrenders, LL accepts, Ok. Need writing if > 1 year left on lease requires a writing)

Periodic Tenancies

1. No ascertainable termination date.

2. Keeps renewing in successive intervals

3 Creation by:
a. Express Agreement (L leases to T m-m)
b. Implication #1: "L leases to T for $100/mo"

creates mo to mo tenancy.
c. Operation of Law: invalid lease (like SOF) or T holds over.
Termination: By proper notice by one party to another. Notice = equal to length of lease period, not more than 6 mos.

Tenancies at Will

1. No fixed term. Terminable at any time by T or L

2. Express creation or court will see it as periodic


3. Terminated -- Notice (modern at least 30

days); OR by operation of law (death, waste)

Note: If LL has the express right in the lease, then both parties have it. If tenant only has right to terminate, then ONLY the tenant has it.

Tenancies at Sufferance

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

Holdover Doctrine

• If the tenant continues in possession after his right to possession has ended, the landlord may:
1. Evict
2. Bind him to new periodic tenancy (generally same terms)

-- but if LL tells T rent will increase at end of lease, T acquieses simply by holding over.
3. Residential tenants are generally held to a new month to month tenancy REGARDLESS of the original term
1. Possession for only a few extra hours or leaves some personal property behind
2. Delay is not tenants fault (illness)
3. Seasonal lease

Tenant's Duties:
Duty to repair (Doctrine of Waste)

T must not commit waste (voluntary, permissive or ameliorative (liable for restoration))

-- Modern: fixing up OK if long term & reflects changes in neighborhood

T has duty to repair ordinary wear & tear but not structural (unless expressly included)

If P destroyed, neither has to repair but T has to keep paying rent


Law of Fixtures

T cannot remove fixture even if she installed it or she commits voluntary waste.

Fixtures = express agreement controls. No agreement, then remove if does not cause substantial harm.
• CL: tenant liable for any loss to property including force of nature. Modern: T may end lease if premises destroyed w/o fault of T.

Tenant's Duties:
Liability to 3rd Parties

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

Tenant's duties:
Duty to pay rent

If leasehold ends before end of lease, T has to pay proportional amount of rent and LL cannot keep security deposit beyond damages actually suffered.

If T surrenders property, duty to pay rent ends.


Landlord Remedies for T breaches

1. T on premises & fails to pay rent: CL $ only; Modern: terminate under unlawful detainer statute.

2. T abandons: LL must mitigate (try to relet), then get difference ($)

NOTE: LL can only evict through courts or continue relationship & sue for rent (NO SELF HELP)
If T going to surrender, must be in writing if >1 yr on lease left.

Landlord Duties:
Possession of Premises

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

Landlord Duties:
Duty of Quiet Enjoyment

• Tenant has a right to quiet use & enjoyment of premises w/o interference from LL or paramount title holder (bank, etc).

Violated where:

1. Actual eviction -- T no longer has to pay rent

2. Partial eviction -- T can't go in parts of P then won't pay full rent

3. Constructive eviction: 3 parts

a. Substantial interference due to LL's actions or failure to act,
b. Notice (T must notify LL of problem & LL must fail to act meaningfully), AND
c. Vacate: T must vacate w/in a reasonable time after LL fails to correct problem

Landlord Duties:
Warrant of Habitability

• Only applies to residential leases & is non-waivable

-- Based on housing codes (what meets basic needs -- heat, plumbing, etc)

T's remedies: may move out, repair deficiency & deduct from rent, reduce/withhold rent until court determines fair value (may have to put in escrow), OR remain & pay rent & sue for damages

Landlord Duties:
Retaliatory Eviction

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

Presumptive if happens w/in say 90-180 days of report; LL must show valid reason then.


GR: Absent express restriction, T can transfer her leasehold interest -- full interest = "assignment"

1. Assignee stands in T's shoes; A and LL are in privity of estate

1. Assignee and landlord are in privity of estate & each is liable for all covenants in the lease that run with the land (covenants that run with the land if original parties so intend and covenant touches and concerns the land)

Note: Original T & LL are in privity of K, and T will be secondarily liable to LL.

Ex: T1 assigns to T2, T2 assigns to T3, LL and T3 are in privity of estate, LL and T1 are in privity of K, T2 and LL aren't in any privity


BAR: transfer is sublease only when original T reserves time for herself .. last month)

1. Sublessee is not personally liable to LL for rent or any covenants in the main lease unless the sublessee expressly assumes the covenants
2. LL's remedies: Sublease is terminated if the LL terminates the main lease
3. Rights of sublessee: Sublessee cannot enforce covenants, except maybe implied warranty of habitability against the landlord
4. New tenant is responsible to original tenant, original tenant is responsible to LL

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

Assignments by Landlords

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

LL's Tort Liability:

MODERN: General Duty of Reasonable Care (repair if know, if after lease, no duty)

• CL, LL had no duty to make premises safe. Today, six exceptions:
1. Concealed dangerous condition (latent defect): If LL knows/should know & T can't reas discover, LL must repair or disclose; if LL knows or should know about it; If T accepts after disclosure, she assumes the risk and the landlord is not liable to her OR others
2. Public use: LL liable for injuries to he public if, at the time of the lease, he: 1) Knows/ should know of a dangerous condition, 2)believes T may admit public before repair; and 3. Fails to repair

3. Common areas:must maintain common areas

4. Furnished short-term residence: stricter duty, liable for injuries resulting from any defect whether or not he knew of the defect
5. Negligent repairs: if LL undertakes repairs, he can't do them negligently
6. Landlord contracts to repair: If the landlord covenants to repair, he is liable for injuries

Rights in the Land of Another

Def: a nonpossessory interest in land that creates a right to use land owned by another.


1. Express Grant: must be in writing (SOF)

2. Express Reservation: G grants land but holds right to continue using some part for special purpose (must meet SOF)

3. Implication (exception to SOF)

a. Existing use: prior to div. of one tract, apparent and continuous use, reasonably necessary for enjoyment/use of dominant part, court agrees intended to continue after div.

b. In subdivision, all can use roads to reach lot

c. Profit a prendre -- you can pass onto land to

get product (mining, etc)

d. Necessity: ie, after div. someone can't access utilities, road, etc.

e. Prescription: basically adverse possession
1. Affirmative = holder entitled to use the servient tenement (some part of it)
2. Negative easements = entitles the holder to compel the possessor of the servient tenement to refrain from engaging in an activity on the servient estate, usually involving: (i) light; (ii) air; (iii) lateral/subjacent support; (iv) for flow of an artificial stream. Negative easements MUST be created by express writing (no natural/automatic right)
• Types of easements:
1. Easement appurtenant to land
2. Easement held in gross

Easement in Gross

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


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



Characteristics: Affirmative or Negatives

1. Affirmative = holder entitled to use the servient tenement (some part of it)

2. Negative easements = entitles the holder to compel the possessor of the servient tenement to refrain from engaging in an activity on the servient estate, usually involving: (i) light; (ii) air; (iii) lateral/subjacent support; (iv) for flow of an artificial stream. Negative easements MUST be created by express writing (no natural/automatic right)



Types of Easements

1. Easement appurtenant to land -- when it benefits the holder in his physical use of enjoyment or another tract of land

(passes w/ transfer of the benefitted land; transfers with servient too, unless purchaser bona fide w/ no notice)

2. Easement held in gross -- right to use servient tenement regardless of possession of other land

Easements:Scope of easements

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


1. Stated conditions: original grant may say when it ends

2. Unity of ownership: same person owns both tracts & at later separation no revival

3. Release: by deed from owner of the easement to owner of servient estate

4. Abandonment physical action demonstrates intent to abandon

5. Estoppel: Reasonable reliance by owner of servient estate on oral representations or conduct by easement owner

6. Necessity: created by necessity end as soon as the necessity ends
7. Destruction: servient land involuntarily destroyed, easement ends
8. Condemnation: condemnation of the servient estate (may get $)

Licenses: Results from failed attempt to create an easement

• Licenses privilege their holders to go upon the land of another but does not create an interest in land
• Licenses subject to SoF (doesn't need to be in writing, may be oral)
• Revocable at the will of the licensor (unless estoppel (only if licensee spent lots of labor/$ or license coupled w/ interest)
• Personal, not alienable; attempts to transfer result in revocation by law


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

Real Covenants (Run with the land at law)

Def: written promise to do/not do something related to the land;

Differs from equitable servitude: if P seeks money damages, construe as covenant. If P seeks injunction, construe as equitable servitude

Burdens running w/ land

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

Benefits running w/ land

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

Specific covenants, Remedies, and Termination

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

Equitable Servitudes

• Definition: a promise that equity enforces against the assignees of the burdened land who have notice of the covenant

A single promise can create both ES and RC

Equitable Servitudes:

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

Equitable Servitudes:
Creation by Implication

• Common scheme doctrine: (recriprocal negative covenants)
1. When sales began, developer had a common plan all parcels would be subject to restriction

2. Scheme may be evidenced by:

a. recorded plat

b. general pattern of restrictions

c. oral representations to early buyers


Actual notice: literal knowledge of promises in prior deeds
Inquiry notice: neighborhood conforms to common restriction
Record notice: (minority view) sometimes imputed to buyers on basis of all available public documents, (majority view) buyer doesn't have record notice of prior deeds transferred to others by common grantor (less burdensome to D's title searcher)

Equitable Servitudes:
Running of Burden/Benefit

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

Equitable Servitudes:
Defenses: Court will not enforce if:

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

Equitable Servitudes:

1. Written release
2. Merger
3. Condemnation

Adverse possession

3 Requirements:

1. Physical = "actual, open, notorious."

2. Mental = Hostile -- (enters w/out permission, believes true owner,
3. Time = "continuous" for statutory period (CL = 20 yrs, modern 5-30yrs). (true owner disability tolls this)

Before statutory period runs, true owner can eject and seek rent as damages. After, adverse possessor is the owner. The END.

Land Conveyance:
The Land Sales Contract

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

Land Conveyance:
The Land Contract:
Risk of loss

Once K is signed, equity regards buyer as owner w/ seller's interest = personal property but may possess until closing.

Majority: Property involuntarily destroyed before closing = risk on buyer if property destroyed before closing (buyer gets insurance proceeds if seller receives them though)

• Passage on death: if seller dies, his heirs must give up title to the buyer at closing; if buyer dies, his heirs or devisees can demand conveyance at closing

Land Conveyance:
The Land Contract:
Marketable title

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

Land Conveyance:
The Land Contract:
Marketable Title:

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

Land Conveyance:
The Land Contract:
Time of performance

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

Land Conveyance:
The Land Contract:
Tender of performance

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

-- No need to tender 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

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The Land Contract:
Remedies for breach

• Nonbreaching party can get damages (diff b/w K price and FMV on date of breach, plus incidentals) or specific performance
• If buyer wishes to proceed despite unmarketable title, she can usually get specific performance with an abatement of the purchase price
• Liquidated damages - Courts routinely uphold such earnest money if the amount appears reasonable in light of anticipated/actual damages


Seller's Liabilities for Defective Property

1. Warranty of Fitness or Quality: most cts recognize for new house (build)

2. Sale of existing land/buildings, may be liable for defects like leaks, termites, etc under:

a. Misrepresentation: knew and lied

b. Active concealment

c. Failure to disclose: knew, buyer not likely to find, buyer not likely to buy if knew

d. Negligence: against builder

NOTE: General disclaimer "as is" not overcome fraud, concealment or failed to disclose

Land Conveyance:
The Closing:
Deed Lawfully Executed

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

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

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

Land Conveyance:
The Closing:
Delivery Requirement

Deed is not effective unless it has been delivered and accepted. Deed to dead person = invalid!

Delivery = grantor's intention to make a deed presently effective even if possession is delayed.

-- really look at INTENT: recording, physical act,

-- PE can be used to show intent, but not conditional delivery

Title passes on Delivery (no renege)
• Recipient's express rejection of the deed defeats delivery (if tries to return it, not work must make new deed).

- No oral conditions on delivery

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

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

Recording Systems

Meant to protect BFPs from secret interests previously granted

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

-- KEY: BFP had no actual/constructive notice
2. Race-notice jurisdiction: BFP wins only if he records before A

3. Pure Race -- 1st recorder wins!

Recording Systems:

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

Recording Systems:
Chain of Title Problems

1. Shelter Rule: One who takes from a BFP will prevail against anyone the BFP would have prevailed against (even if 2nd BFP knew)
2. Wild Deed Problem: Wild deeds can't give notice b/c outside of chain of title
3. Estoppel by Deed: One who conveys title he doesn't have interest in is estopped from denying the conveyance if he later gains title. However, a subsequent BFP would win out.

4. Unacknolwedged Instrument: NO GOOD

Security Interests in Land


1. Mortgage ( debtor/lender)-- foreclosure by judicial foreclosure sale

2. Deed of Trust (debtor = notemaker) = deed of trust to 3p trustee, connected to lender -- foreclosure by sale

3. Installment Land K: only get title when full $ is paid off; forfeiture/repossession on default

4. Absolute Deed: equitable mortgage

5. Sale-Leaseback: sell and lease back (like a mortgage basically)

Equitable Mortgage

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

Interest Transfers:
Transfer by Mortgagee (Lender)

Transfer of Mortgage w/out Note: most states say transfer of mortgage = transfer of note; some say w/out note, transfer of mortgage void

Transfer of Note w/out Mortgage: mortgage automatically follows unless mortgagee expressly reserves mortgage

May be transferred by: endorsing and transferring (only way for transferee to become holder in due course) OR by separate assignment

Interest Transfers:
Transfer by Mortgagor

A grantee of mortgaged property takes subject to mortgage.

Assumption: by writing, grantee agrees to be primarily liable to lender; if no assumption, original mortgagor remains liable, but loan may be foreclosed (wipes out grantee's interests)

"Due on Sale" clause: Lender can demand full payment of the loan if the mortgagor transfers any interest in the property without the lender's consent

Possesion before foreclosure

1. Theories of Title: mortgagee may have a right to take possession before foreclosure, depending on the theory the state follows
a. Lien: mortgagee only holds security interest, can't enter before foreclosure
b. Title: Legal title is in the mortgagee, can possess before foreclosure
c. Intermediate: legal title is in the mortgagee upon default (works about like title theory)

2. Consent & abandonment: mortgagee may take possession if the mortgagor gives consent to do so, or if the mortgagor abandons the property
3. Risks of mortgagee in possession: Duty to account for rents, duty to manage property prudently, potential tort liability

4. Receiverships:

Most mortgagees attempt to intercept the rents before foreclosure by getting a receiver appointed by the court to manage the property.

California Bar Tutors (2014-08-19). 2014 California Bar Exam Total Preparation Book (Kindle Locations 3756-3757). . Kindle Edition.


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

Security Interests in Land


Purchase Money Mortgage

A mortgage given in exchange for funds used to purchase the property.

PMMs have priority over non-PMMs executed at about the same time even if the non-PMM was recorded first.

Security Interests in Land

Installment Land Contracts

Most installment Ks provide for forfeiture rather than foreclosure as the vendor's remedy but to avoid such harsh results courts may:

1. Equity of Redemption: Several states give the contract purchaser a grace period to pay the accelerated full balance of the contract and keep the land after default

2. Restitution: Some courts grant forfeiture but require vendor to refund the purchaser any amount by which his payments exceed the vendor's damages

3. Treat as mortgage and require judicial foreclosure sale

4. Waiver: A vendor's pattern of accepting late payments may constitute a waiver of the right of strict performance. Reinstate strict performance by sending notice

ELECTION of remedies -- pick one, forego all else

Rights Incidental To Ownership of Land

(Natural Rights)

GR: An owner of real property has the exclusive right to use and possess the surface, the airspace, and the soil of the property.

Rights Incidental To Ownership of Land

Rights to Lateral and Subjacent Support of Land

Lateral Support: Ownership of land includes the right to have the land supported in its natural state by adjoining land

1. A landowner is strictly liable if his excavation causes adjacent land to subside (slip or cavein)

2. Strictly liable for damage to buildings caused by excavation only if it is shown that the land would have collapsed in its natural state; otherwise, liable for such damage only if his excavation was done negligently

Subjacent Support: An underground occupant of land (a mining company) must support the existing surface and buildings. Negligence for damage to subsequently erected buildings.

Water: Basics

All water use in CA must be for beneficial purposes and by reasonable method of use.

Natural use (consumption, gardening) prevail over artificial use (manufacturing)

Rights Incidental To Ownership of Land

Water Rights

Watercourses (Streams, Rivers, and Lakes)

Two major theories:

1. Riparian (traditional): H20 goes to owner of land bordering watercourse

a. Natural Flow Theory: --> can enjoin riparian owner who overuses it or really changes it

b. Most common view --> all riparians share; reasonable use; only enjoin if really hurts

1. Consider: alteration of flow; purpose of

use; pollution; extent of use; destination of

water taken; and miscellaneous conduct

2. Prior Appropriation Doctrine -- rights by use; appropriative rights by priority of use.

Rights Incidental To Ownership of Land

Water Rights

Ground Water (Percolating Water) (underground water recovered from wells)

2014 CA passed new law regulating use of groundwater (2020 start)

CA: Correlative Rights Doctrine Owners of overlying land own H20 as joint tenants, & each can use reasonable amount for own use. Does not matter who was there first.

Other Theories:

1. Absolute Ownership Doctrine -- owner can take all H20 she wants

2. Reasonable Use Doctrine (25 states) -- like absolute ownership, but export only if does not harm other users

3. Appropriative Rights Doctrine (some western states) -- Priority of use is determinative

Rights Incidental To Ownership of Land

Water Rights

Surface Waters (Rainfall, seepage)

Can use surface water on your property for any purpose you want. Liability usually arises from change of natural flow by dikes, drains, etc and depends on theory of the state:

1. Natural Flow Theory (1/2 states) -- Owners cannot alter natural drainage patterns (reasonable changes ok)

2. Common Enemy Theory (most other states) -- can take any protective measures to get rid of the water (but don't ruin other people's lands doing it)

3. Reasonable Use -- growing trend. Balancing utility of use with gravity of harm

NOTE: this relates to redirecting water. Owners can capture it as they want.

Rights Incidental To Ownership of Land

Airspace Rights

Not exclusive but entitled to freedom from excessive noise

Rights Incidental To Ownership of Land

Right to Exclude: Remedies of Possessor

Possessor has the right to exclude others.

Remedies include actions for:

1. Trespass

2. Private nuisance (invasion by intangibles)

3. Continuing trespass (repeated invasions)

4. Ejectment/unlawful detainer -- can be joined with $ damages

Cooperatives, Condominiums, and Zoning


In a cooperative, title to the land and buildings is held by a corporation that leases individual apartments to its shareholders.

Individual owners are regarded as tenants so direct restraint of alienation of an individual interest is valid.

Cooperatives, Condominiums, and Zoning


In a condominium, each owner owns the interior of his individual unit plus an undivided interest in the exterior and common areas. Treated like a fee simple so ordinary rules against restraints on alienation apply.

Cooperatives, Condominiums, and Zoning


State may enact statutes to reasonably control the use of land for the protection of the health, safety, morals, and welfare of its citizens. (Police Power)


1. Non-conforming use: Used existed pre-zoning. Can continue at least for a while, but no right to rebuild.

2. Special Use Permit: Even though zoning is right, must still get special use permit (hospitals, funeral homes)

3. Variance: departure from zoning rules by administrative action (must show hardship; can't harm neighborhood; use variances disliked)

Zoning must be reasonable, not discriminatory, etc.

Zoning and "Takings"

Is it a taking?

1. Can landowner still get reasonable return on investment?

2. Balance out public benefit v. private harm

I. Estates In Land

A. Rule Against Alienation: GR

GR: Any restriction on the transferability of a legal (not equitable) interest is void

Absolute Restraints On Fee Simple Are Void: Unless restraints imposed for limited time/ a reasonable purpose.

I. Estates In Land

A. Rule Against Alienation: Valid Restraints

Forfeiture restraints on Life Estates

Forfeiture restraints on transferability of future interests

Reasonable restrictions on commercial transactions

Rights of first refusal

Restrictions on assignment and sublease

Eminent Domain

When government takes title to property without true owner's consent.

5th & 14th A = private property can be taken for public use if owner given compensation.

Problems Arising PRIOR to closing (K principles)

Formation Issues

Problems arising before will deal with K principles like formation, performance and breach.


SOF: writing, signed, essential terms.

Part Performance: by purchaser, will validate oral K (actions prove K existed and/or purchaser relied to her detriment)

Recording Act

CL: First in time, first in right

CL: O gives Blackacre to A by valid deed. Then O gave deed to B. A owns because got it first. Recording Acts try to make it more fair for B.