7/31/2019 Covered on the Bar-real Property http://slidepdf.com/reader/full/covered-on-the-bar-real-property 1/34 Property 1 I)Preview -5 classifications of interest in Real Property A)Freehold estates give possession to property under some legal title. 1)Fee simple 2)Fee tail 3)Life estates B)Non-freehold estates give mere possession, no legal title. (landlord-tenant law) 1) Tenancy for years 2)Tenancy from period to period (a)Tenancy at will (b)Tenancy at sufferance C)Concurrent estates 1)Joint tenancy 2)Tenancy by the entirety 3)Tenancy in common D)Nonpossessory interests in land (incorporeal) 1)Easements 2)Profits 3) Covenants running with the land 4)Equitable servitudes 5)Licenses E)Future interests 1)Reversions 2)Possibility of reverter 3)Right of re-entry 4)Remainders (a)Contingent remainders (b)Vested remainders 5) Executory interests Three other sections F)Rights incident to possession 1)Adverse possession 2)Lateral subjacent support 3)Water rights 4)Crops G)Conveyancing 1)Recording statutes 2) Deeds 3)Equitable conversion doctrine H)Mortgages
II) Freehold estates -give possession to land under some legal titleA) Fee simple absolute-Potentially infinite duration maximum estate person can own.
1) Most extensive estate a person can own; largest estate known to law, maximum estateownership
2) Largest estate known, potentially of infinite duration
3) Common law: To convey, words at common law had to be : B (the grantee) and his heirs(a) The words B and his heirs used in a deed were construed as words of limitation.
(i) They described the quantum / size of the estate that was transferred to the grantee.4) At Modern law, we designate the owner to the grantee X conveys land to B.
(a) Words of purchase indicate the grantee or the person that takes the property.(b) Conveyance to B would create a fee simple absolute today without necessarily including
and his heirs\ and her heirs.
B) Fee simple defeasible1) Fee simple determinable
(a) Fee simple estate created to continue until the happening or non-happening of a certainevent (possibility of reverter)
(b) Automatic reversion upon the happening or non happening;(c) Ex: X, owner in fee, conveys Blackacre to A, so long as the property is used as a school.(d) Words in conveyance: So long as; during; until or while
(e) Fee simple determinable has a possibility of reverter since
the grantee estate may end on the happening or non-
happening of an event
(f) Possibility of reverter: Possibility that event occurs; but if
that event does occur (i.e., when the property is no longerused as a school, for residential purposes, or where liquor is
sold on property); there is an automatic reversion to the
grantor on the happening or non-happening of a stated
event.(g) Automatic reversion
2) Fee simple subject to condition subsequent (a) Fee simple estate that may be terminated on the happening or non-happening of a stated
event or contingency.(b) Ex: X, owner in fee, conveys Blackacre to A and his heirs, but if the land is not used as a
farm, X may reenter the land.(c) Right of re-entry for broken condition; the grantor or his heirs
have the right / option of re-entering and reacquiringownership to the property or possession to the property.
non happening of a stated event, ownership passes from one
grantee to another grantee.(b) Shifting executory interest:(c) Ownership passes from one grantee to another (i.e., from A to B).
(i) Ex: X, owner in fee, conveys Blackacre to A and his
heirs, as long as the land is used as a farm, and if
the land is not used as a farm, then to B and his
heirs.
(ii) Ex: X, owner of Blackacre in fee simple, conveys Blackacre to A and his heirs, but if A
dies without issue living at his death, then to B and his heirs. Title passes from A to B if
A dies without any issue living at his death.(d) Springing executory interest
(i) Ownership passes from the grantee back to thegrantor; then, after some time, ownership passes
from the grantor to another grantee.C) Fee tail (rarely tested on the exam)
(a) At common law, a fee tail was usually created by the words: To B (or the grantee) and theheirs of his body(i) Inheritance was restricted to the lineal descendants of the grantee.
(b) It was permissible for the grantor of a fee tail to restrict the inheritance to a particulargroup of lineal descendants of the grantee by proper words of limitation. **(i) Ex: A grant to a male and the male heirs of his body-this created a fee tail male.(ii) Ex: A grant to a female and the female heirs of her body. This created a fee tail female.
(c) Lineal heirs for purposes of a fee tail are sons, daughters, grandchildren, and great-grandchildren.
(d) Collateral heirs include cousins, nieces, nephews, uncles, and aunts.D) Life estate -Freehold estate where the duration is measured by the life or lives of one or more
human beings.(i) Ex: X conveys Blackacre to A for life. A has a life estate.
(b) A life estate pur autre vie is a freehold estate where the duration is measured by someoneelse other than the grantee.(i) Ex: X conveys Blackacre to A for the life of B.
(c) Dower Widow – a widow is entitled, on the death of her husband, to a life estate of 1/3 of
the lands her husband was seized in fee simple during the marriage.(d) Curtsy
(i) Tenancy by curt sy is a life estate to which the husband was entitled to all of his wife’s
lands.(ii) Requirements:
Husband had to be married to wife
Wife must be seized in the land in fee simple or fee tail during the marriage.
A) Reversions -Estate remaining in the grantor who has conveyed a lesser estate than that owned bythe grantor.1) Ex: X, owner in fee, conveys Blackacre to B for life. Here, a reversion back to the grantor2) Created where a grantor creates a lessor/or expiable estate of what he owns.
(i) Fee tail, life estate, contingent remainder that does not vest.
3) A reversion arises as a matter of simple subtraction.
(a) If A has 5 apples and gives 3 away, he has 2 apples left. Two apples left, like a reversion inreal property.
(b) If the grantor is the owner of a fee simple estate and conveys a life estate, at the expiration
of the life estate, you have a reversion back to the grantor.(c) Interest retained by the grantor of a determinable estate for a fee simple determinable
B) Possibility of reverter, once the stated event occurs, the estate ripens into an automatic reversion
– a possessory estate –
automatic reversion back to the grantor.
1) A Possibility of reverter is created when a grantor grants a fee simple determinable.2) Possibility b/c if the event does not occur, obviously no reversion back to the grantor.
(a) X, owner in fee, conveys land to A, as long as the land is farmed.1. X has possibility of reverter.
2. If the land is not farmed, ownership reverts back to the grantor on the happening of that
stated event.(b) Possibility of reverter is connected with a determinable fee.
C) Rights of re-entry for condition broken/Power of termination
1) Created in the grantor subject to a condition subsequent.
2) Right of re-entry means that there isn’t an automatic reversion of the grantor upon the
happening or non-happening of that stated event. They have the OPTION.
(a) Rather, the grantor or his heirs have the option of re-entry *
(b) Created when the grantor creates a fee simple on condition subsequent.D) Remainders – Future interest created in a third person which is intended to take effect after the
natural termination of the preceding estate:
1) Remainders must be created by:(a) In favor of a transferee who is one other than the conveyer;(b) The remainder must be created at the same time and in the same instrument as the prior
particular estate which precedes it.(c) The proceeding estate must be of lesser duration than the interest of the conveyer so there
can be an interest to pass on to the remainderman(i) At common law every remainder must be preceded by either a fee tail or a life estate.(ii) Modern usage allows fee tail, life estate or estate for years.
2) Contingent (not vested) remainder (Type 1)
(a) Any remainder which is created in favor of an ascertained person, but is subject to a
condition precedent, or is created in favor of an unborn or unascertained person.(b) Ex: A t o B for life, remainder to C and his heirs, if C marries before B’s death. C has a
remainder contingent upon his marriage before B dies.(c) Ex: A to B for life, remainder to C for life, if C survives X. C has a contingent remainder upon
X’s predeceasing both B and C because the contingency of C’s surviving X must happen on or
before the termination of B’s life estate. 3) Vested Remainder (Type 2)
(a) Remainder created in an ascertained and existing person that is not subject to any
condition precedent except the normal termination of the preceding estate.(i) Ex: A owner in fee conveys Blackacre to B for life with remainder to C and his heirs. C
has a vested remainder(ii) Ex: A conveys or devises to B for life, then to C and her heirs. C has a vested remainder.
We know it will take effect after the termination of B’s life estate.
C is an ascertained and existing person, not subject to any condition precedent.(iii) Ex: A conveys to B for life and then to C for life. C has a vested remainder.(iv) It must take effect before the termination of the preceding life estate – namely, B’s.
(b) Types of vested remainders:(i) Remainders absolutely vested
Limited to ascertained or identifiable person without words of condition and not
subject
to divestment.
Ex: A conveys Blackacre to B for life and then to C and her heirs. C has a remainderabsolutely vested.
(ii) Remainders vested subject to partial divestment (also called remainder vested subject to open)
A remainder is subject to being partially divested when the remainderman is in
existence and ascertained, but the amount of her estate is subject to being
diminished in favor of other members of a class. **
Ex: Common kind of class gift. A devises land to B for life, then to the children of B infee. At the time of B’s death, B has one child, C.
C’s remainder is vested because she is in existence, ascertained, and she or her
heirs are certain to acquire a possessory interest on the expiration of B’s life
estate. While B lives it is a remainder vested subject to open as B could still havekids and “open” the remainder to other siblings.
Common law standards: The seisin can pass to her immediately on B’s death. But,C’s interest is “subject to open” because of after born children of B because they cancome within terms of the gift.
(iii) Remainders vested subject to complete divestment
A remainder is vested subject to complete divestment when the remainderman is in
complete existence and ascertained and her interest is not subject to a condition
precedent, but her right to possession or
enjoyment of her interest on the expiration of that prior interest is subject to a
termination by reason of an executory interest, power of appointment, or right of re-
entry.
Ex: A conveys to B for life, then to C and her heirs, but if C dies, leaving no survivingchildren, then to D and his heirs. Here, C has a remainder vested subject to complete
divestment on the death of C without any surviving children.
D’s interest is not a remainder, but an executory interest.
If C dies without any children, then ownership transfers to D.4) Characteristics of a remainder
(a) Alienable or Transferable- Remainder must be in favor of a transferee (usually a grantee)who is one other than the conveyor.
(b) The remainder must be created at the same time and in the same interest as the prior
particular estate which supports it or precedes it.
(c) Preceding estate must be of lesser duration than the interest
of the conveyor or the grantor, so that there may be an
interest to pass on to the remainderman.
(i) Ex: X is the owner of Blackacre in fee and he
conveys Blackacre to Y, for life, a lesser estate than the fee, and then at the expiration of
Y’s life estate, title then passes to Z. Z has a vested remainder which takes effect after
the natural expiration of the
preceding life estate.(d) Preceding estate had to be either a fee tail or a life estate.
5) Modern law: Preceding estate may be a fee tail, life estate, or a estate for years.(a) Preceding estate cannot be a fee simple estate.(b) For multistate
(i) All remainders are considered transferable and alienable (common law, they weren’t).
(ii) Contingent remainder is not subject to claims of creditors.(iii) A vested remainder is subject to the claims of creditors.(iv) A remainder cannot take effect cutting short the prior estate, but after the natural
termination.(v) Contingent remainders come within the rule against perpetuities; however, it does not apply with vested remainders.
(vi) Vested remainder man has a claim against prior estate holder (the life tenant) for
waste; contingent remainder has no such right.
(vii) Where we have a vested remainderman, the remainderman has a right to compel
the prior estate owner to pay taxes and interest on encumbrances. A Contingent-
remainderman cannot
E) Executory interest –A future contingent interest, created in favor of a transferee, in a form of aspringing or shifting use, which upon the happening of the contingency will be executed into alegal estate and cannot be construed as a remainder. Cuts short a prior estate and shifts tosomeone other than the grantor.1) Shifting Executory Interest Cuts short or terminates a preceding estate in favor of the grantee.
(a) Ex: A conveys to B for life, but if B becomes bankrupt, then to C and his heirs. B has a lifeestate, subject to an executory shifting interest in C, with a reversion in A.(i) C’s interest is not a remainder because it does not await the natural expiration of B’s life
estate.(b) Ex: A, owner in fee, conveys Blackacre to B and his heirs, but if B marries Z, then to C and
his heirs.
(i) Here, C has a shifting executory interest, that if B
marries C, then B’s preceding estate is cut short and
rights of possession or ownership goes from one
grantee to another, namely C.(c) Ownership passes from A the grantor to B, and then happening on the stated event, to C.(d) From transferee to transferee upon happening of conditioned event
2) Springing(a) Ex: A, owner in fee, conveys Blackacre to B and his heirs, but if B marries Z, 1 year later, to C
(b) Ownership passes from the grantor, A, to B, the grantee, then there is a lapse of time – 1
year later, so if B marries C, then rights to possession of the property would revert to A, the
grantor or his heirs, and then after 1 year, ownership/ right of possession would then pass
on to C, the second grantee.(i) Grantor to grantee upon happening of conditioned event
(ii) Always involves lapse of time (even 1 day) between
happening of event and the other transferee getting the
interest.3) Elements:
(a) Always in favor of the transferee, who is someone other than the transferor or grantor.
(b) An executory interest therefore should never be confused with a reversion, possibility of
reverter, or
right of reentry for condition broken.(c) Right of possession reverts back to grantor for a remainder.
(d) It is always contingent and can never become vested because when it vests, either as a
future or present interest, it ceases to become an executory interest.
(e) An executory interest cuts short a prior estate on the happening or non-happening of acertain event.(i) Compare: remainder follows the natural termination of the preceding estate
F) Contingent remainder vs. Executory interest
1) Contingent remainder Cannot follow a fee simple interest of any kind. Any interest which
follows a fee and is held by a third person must be an executory interest. **(a) Ex: If A conveys property to B and his heirs, but if B sells liquor on the premises, then to C
and his heirs.(i) C has a shifting executory interest.(ii) C’s interest cannot be a contingent remainder b/c a remainder cannot follow a fee
simple estate and it cannot cut short a preceding estate.
IV) Executory devises and interestsA) Executory devises are identical with springing and shifting interests, but executory devises are
created by will.B) Springing and shifting uses or interests are created by deed or grant inter vivos.
V) Rule in Shelley’s case (abolished in most jurisdictions)
A) Common law: If in a conveyance or a will, a freehold estate (usually a life estate) is given to aperson and in the same conveyance or will, a remainder is limited to the heirs of that person (of the grantee), and then the grantee takes both the freehold estate and the remainder. In essence,
the grantee ends up with a remainder in fee and the remainder to his or her heirs is cut off.B) Ex: Where X, owner in fee, conveys Blackacre to B for life, with remainder to B’s heirs.
C) In a jurisdiction that has adopted the rule in Shelley’s case, the remainder to B’s heirs is cut off,
they don’t get
anything and B ends up with fee simple estate.1) B takes both his freehold estate and the remainder.
2) There is a merger of the life estate with the remainder and B ends up with a fee simple estate
and the remainder to his heirs is cut off.
VI) Doctrine of Worthier Title (Rule against remainders in grantor’s heirs) A) Almost exactly the same as the Rule in Shelley’s case
B) Applies to situations where the grantor, X, owner in fee, conveys Blackacre to B for life with
remainder to X’s heirs. The remainder is in the grantor’s heirs.
1) Compare: Rule in Shelley’s case: remainder is in the grantee’s heirs.C) Jurisdiction that follows this doctrine: The remainder to X’s heirs at the expiration of B’s life
estate, is cut off – abrogated and you then have a reversion in fee back to the grantor (X) or hisheirs.
1) The remainder is cut off, and it is a reversion.2) In its application to wills, the rule in its testamentary aspect requires that the heir take by
descent rather than by purchase or devise. Doctrine gets its name b/c the heir takes bydescent rather than devise. It was said that title by descent was worthier or better than titlederived by purchase or devise.
D) Reason for this: A descent of land barred the right of entry of the person de- seised. If the titlewere acquired by purchase, the de-seisee’s right of entry was not barred.
VII) Rule Against Perpetuities -No interest is valid unless it vests if at all not later than 21 years aftersome life in being at the time of its creation of the interest.A) Only contingent interests, executory interests, and options to purchase land in the future are
covered by this rule.B) Any contingent interest which does not meet the rule are voidable initio.1) “Must vest” -Any contingent interest must vest within 21-years, or fail within the 21-years.2) If the contingent interest is absolutely certain to vest or fail entirely within the period of the
rule, then it is valid.3) “Not later than 21-years of some life in being” -Includes lives in being provided that they are
not so numerous as toprevent practical determination of when the last life in being dies plus 21-years and gestationperiod.
4) “At the creation of the interest” -Period of the rule begins when the interest is created.(a) In a will, it’s when the testator dies.
(b) In a deed, it’s when the deed is executed. 5) The rule is directed against remoteness in vesting.
6) Sole test: Must the interest vest or fail within the 21-year period permitted by the rule.(a) If it may vest, it is void.(b) If it must vest, it is not void – it’s valid.
C) Interests subject to the rule:1) Contingent remainders2) Executory interests3) Options to purchase land that are not incident to a lease, but rather contained in a deed
instrument.4) Options to purchase land that is in a lease, not subject to the Rule.
D) Most frequently tested on the bar (multistate)1) Ex: Farpo owned Rosemead, a tract of land, and conveyed the property to Reak. The deed
contains
the following provision: Right of first refusal whereby anytime before the year 2222 the
grantee has a modified offer for purchase of said premises which she is to accept, then the
grantee shall submit a right of first refusal to the grantor or the heirs.
(a) Right of first refusal violated the rule against perpetuities because the grantor has this right
or her heirs, had until 2222 in which to exercise this option to purchase land or right of
(b) The fact that the right of first refusal was given to the grantor or her heirs – we don’t know
who the heirs are – until the grantor dies. As such, the option to purchase the land in the
future might violate the rule b/c it might vest too remotely.
2) The grantor conveyed property to the grantee and in the deed, it gave the grantor the right of
first refusal that if the grantee received an offer for sale of property, the grantee had to submit
the offer to the grantor and the grantor had right of first refusal to purchase the same property
(a) Grantor’s right of first refusal here did not violate the Rule b/c the grantor was the
measuring life b/c we’ll know within the grantor’s lifetime whether the land will be
purchased by another.
3) Right of first refusal held by grantor or heirs until sometime in the future – will violate rule;
but where right of first refusal is held by grantor and you know within the grantor’s lif etime
whether the right will be exercised, no violation of the rule.E) Powers of appointment
VIII) Class gifts (Remainders subject to open)A) If a remainder interest is given to a class of persons, it is deemed vested only when the class is
closed and all conditions precedent for every member of the class, have been satisfied.1) The entire class gift is void if the interest of one member of the class might violate the rule.2) The class closing rule – class is closed when no one born after the date can share the gift.
(a) Class can show physiologically, or class closes physiologically when the parent of the classdies.(i) Ex: A gift to A’s children would close physiologically at A’s death.
(b) Under the rule of convenience(i) A class can close earlier so as not to violate the Rule Against Perpetuities.(ii) Whenever any member of the class has the right to demand possession of his or her
share, the class can close.(iii) Gifts which would normally violate the Rule can be saved.
IX) Powers of appointment A) General power of appointment is considered the equivalent of ownership of property.B) If one has a power of appointment over property, he or she can exercise such power and alienate
or transfer property.1) If one can alienate property, the Rule is not offended.2) In order for Rule not to be violated, the power to exercise the power of appointment must be
able to be exercised within the time period allowed by the Rule.
X) Restraints in AlienationA) Restraints on alienation – provisions in deeds, wills, mortgages – that restrict the grantee’s power
to convey property to others.
B)
Whether a particular restraint is valid depends on many considerations:1) Kind of restraint 2) Kind of estate
(a) But, where you have lesser restraints, restraints on alienation of non-freehold estates
(tenancy – periodic tenancy or a tenancy at will) are commonly upheld.
(b) Ex: Non assignment clause in a lease is a common example of restraint on alienation of a
non freehold estate that is upheld as valid.C) Kind of restraint
2) Restraint may only limit grantee with respect to time.
3) Restraint may also restrain a person. Restraint on a person is invalid.
(a) Ex: Grantee is prohibited from alienating property to certain racial or religious or social
groups – violation of 14th amendment Equal Protection clause.4) Preemptive rights (right of first refusal) Partial restraint on alienation - -held as valid.
Concurrent Estates
XI) Concurrent estates – Ownership or possession by two or more persons at the same timeA) 3 types of concurrent estates: Joint-tenancy, tenancy by the entirety, tenancy in common
1) Joint tenancy -A form of co-ownership where each tenant owns an undivided interest in thewhole estate.
(a) Distinguishing aspect: right of survivorship – upon the death of one tenant, the title passes
to the surviving joint tenant.
(b) Creation – 4 unities requires at common law:(i) Unity of time (interest must vest at the same time)
(ii) Unity of title (interest acquired by the same instrument)
(iii) Unity of interest (interest of the same type and duration)
(iv) Unity of possession (each of the joint tenants are given identical rights of a
enjoyment)(c) Notes about Joint Tenancy
(i) Always created by a deed or will, never by descent (intestacy).(ii) Under modern law, joint tenancies are disfavored.(iii) There must be a clear expression of intent to create a joint tenancy, otherwise it will
not be exercised.
Ex. A is the owner of Blackacre, conveys it to B and C and to their heirs. Typicalwords for creating joint tenancy at common law, but not today.
Today, in order to create a joint tenancy, A would have to state in his conveyance
would have had to stipulate that he conveys Blackacre to B and C and their heirs as
joint tenants. If the words joint tenants are not used, a tenancy in common is created
– modern law.(iv) Severance of Joint tenancy
Conveyance inter vivos will sever a joint tenancy-Where one of the joint tenantsconveys his interest inter vivos, the joint tenancy is severed and a tenancy incommon results.
A joint tenancy is destroyed by a suit by partition which can be brought by any of the joint tenants. (on the multistate)
Joint tenancy may be severed by a mortgage in a title theory jurisdiction or acontract to convey (in a title theory jurisdiction, in the majority which follow leintheory which says the mortgage does not sever.
Lease does not effectuate a joint tenancy
Where a K’ to convey results in a severance.
2) Tenancy by the entirety / seized of the entirety Co-ownership by husband & wife
(a) A form of co-ownership based on the unity of the husband and wife.
(b) Common law: regarded as one legal entity. Similar to joint tenancy
(i) Right of survivorship -Where you have husband predeceasing the wife, then title to theproperty – ownership passes – to the survivor.
(ii) 5 unities – husband and wife:
Time, title,
interests,
possession, Unity of person
(c) In most states, neither spouse could dispose of any interest held by tenancy by theentireties. In order to dispose of the property, both spouses needed to participate in theconveyance.
(d) Severing Tenancy by entirety:(i) Death destroys tenancy by the entirety(ii) Divorce destroys tenancy by the entirety(iii) Divorced persons become tenancy in common.(iv) Execution by a joint creditor of both husband and wife would constitute a severance(v) Creditor of one spouse cannot levy on the state owned by the entirety.
(e) Partition – neither spouse is entitled to have a partition at common law (but you can withjoint tenancy).
3) Tenancy in common (each holds undivided ½ interest) -A concurrent estate in whichcotenants each own an undivided, separate and distinct share of the property.(a) A tenant in common does not own the whole property as in a joint tenancy. **(b) Each tenant can dispose of his part or fraction thereof by deed or will.(c) The only unity is the unity of possession inasmuch as each tenant is entitled to the whole of
each estate.
(d) No right of survivorship; upon death of tenant in common by intestacy, no right of
survivorship – heirs don’t take.
(i) Compare: Joint tenancy, right of survivorship does attach(e) Tenancy in common may be destroyed by partition, merger
vests in one person, either by purchase or otherwise ).
(f) Conveyance – this interest is freely alienable. Each co-tenant can freely convey or transfer
his or her interest by conveyance inter vivos or testamentary disposition.
(i) There is no destruction of tenancy in common by conveyance.
(g) Ouster-when one cotenant ousts from possession her cotenant (i.e., wrongful exclusion
from possession), the
ousted tenant has a cause of action against the possessor not to put her out and to regain
possession of the property.
(i) There is no fiduciary relationship between or among tenants in common.(h) Rights and duties of tenants by the entireties, joint tenants, tenants and common:
(i) has the right to possessand enjoy the whole of the property.
(ii) Rents and profits
use of the property.
Tenant in possession need not share profits with a cotenant out of possession,unless there has been an ouster.
If there is ouster, the ousted tenant may hold the tenant in possession for the
(i) Taxes -Where one tenant pays the entire taxes, that tenant may compel contribution by theother tenants.
(j) Repairs and improvements A tenant has no right of contribution against other tenants withregard to repairs and improvements that one has made on the property.
(i) But if a partition has been had (in equity court – action or suit for partition), then the
court may make an equitable division of the proceeds and the court will take into
account expenditures made by one tenant by way of an accounting.
XII) Landlord-tenant lawA) Lease involves a conveyance of an estate (conveying right to possess property to another person
for a limited period of time) and also constitutes a contract. (essay)1) B/c it involves a conveyance in land, it comes within the Statute of Frauds and must be in
writing to be enforceable.2) Writing must contain the following:
(a) Lease must be in writing and must contain the following elements to satisfy the Statute of Frauds:
(b) Must identify the lessor and lessee(c) Describe the leased land
(d) State the term of the lease
(e) Set forth the amount of the rent that needs to be paid3) Contract aspect
(a) Modern leases contain many covenants – impose contractual obligations on the part of thelandlord and tenant
(b) Most courts treat leases as contracts rather than conveyances (even though a lease involvesboth elements).
B) Tenant’s duties
1) Duty to pay rent (a) Rent is viewed as the consideration paid by a tenant to her landlord for the use and
enjoyment of the land.
(b) When rent accrues – at common law, rent is not apportionable as to time – it does not
accrue from day to day, as does interest on money loans. If a lease provides for payment of
an annual rent on the last day of the
calendar year and the lessor accepts a surrender of the leasehold at any time of the year,
she can collect no rent for any portion of such year.
(c) Ex: If lease provides for annual rent on last day of calendar year & lessor accepts surrender
of
leasehold for that portion of the year, the lessor may not accept rent since rent does not
accrue from day to day.2) Destruction of premises -At common law, tenant remains liable to pay rent even though
because of fire, storms, etc., or other natural events, this does not relieve the tenant of obligation to pay rent. **
3) Rent is extinguished or suspended by:(a) Release by the landlord(b) Merger
(i) Where the tenant acquires title to the property (purchases the property), then the
tenant’s leasehold
interest merges with the fee, relieving tenant’s obligation to pay the rent.
(c) Expiration of the lease(d) Eminent domain – takes both the leasehold and the reversion Entire taking of leasehold or
partial?
(i) Where entire leasehold is taken by eminent domain (all of the leasehold condemned forfull balance of the lease term), the tenant’s duty to pay rent is extinguished.
(ii) Where there is a partial or temporary taking if it’s for a short period of time or for a
period less than the remaining term or if only a portion of the rented property iscondemned, the tenant is not discharged from her obligation to pay rent.
(iii) Ex: Landlord leases office building to tenant and there’s a large parking lot with the
agreement and if the parking lot is condemned, by the condemnation of part of the
leasehold premises does not relieve
the tenant of the obligation to pay rent.4) Constructive eviction
(a) Extinguishes tenant’s obligation to pay rent.
(b) Material breach of the landlord which violates the tenant’s in quiet covenant of quiet
enjoyment if it renders the premises uninhabitable, then the tenant must quit the premises
in a timely fashion in order to be relieved of the duty to pay rent.5) Frustration of purpose(a) Modern law-Relieves tenant’s duty to pay rent.
(i) Complete or almost a complete frustration of purpose
(e.g., sole use of the premises becomes illegal – lease premises for the sale of
raccoon furs and then the state enacts a statute prohibiting the sale of raccoon furs –
making it illegal, the frustration of purpose would relieve tenant of his or her
obligation to pay rent).6) Surrender -Express agreement of the parties where the landlord gives the tenant permission to
surrender, this relieves tenant of his obligation not pay rent.7) Duty of repair -Tenant has an affirmative duty to make ordinary repairs on the premises.
(a) Tenant cannot commit waste on the leased premises.(i) Voluntary waste – Life tenant or tenant for years
Injury of premises or land caused by an affirmative act of tenant, such as exploiting
minerals on the land (or removes timber of the property) unless the land was
previously so used or as so provided in the lease, this would constitute voluntary
waste.(ii) Ameliorating waste
Change in the physical characteristics of the occupied premises by an unauthorized
act of the tenant, but which increases the value of the land.
Ex: Where a tenant razes an old outmoded building on premises and erects a
modern building which raises the value of the property from $50,000 to $200,000. Note: a tenant is not liable for ameliorating waste b/c it increases the value of
the land.(iii) Permissive waste
Injury of premises or land caused by tenant’s failure to act when a tenant is under a
duty to act.
Ex: There is a leak in the roof and it ’s raining outside and water is pouring down –
one of the shingles
is detached which causes the roof to leak and a rainstorm, water enters the
premises and damages the hardwood floor. A tenant is under obligation to make
ordinary repair and in this situation the tenant is liable for the damage or the
permissive waste that has injured the property. **(iv) Equitable waste
Injury to the reversionary interest in land which is inconsistent with goodhusbandry and is recognized only by the equity court and does not constitute legalwaste.
Ex: Where the tenant is about to commit an act which constitutes equitablewaste, the equity court can enjoin the tenant from doing that act, but no
damages.
Where you have the expression “without the impeachment of waste” in the lease,
then you’re having a situation dealing with equitable waste.
Ex: A is the fee simple owner of Blackacre. On Blackacre, there is a 6-story
apartment building…we have A, fee simple owner, conveying the apartment
building, granting B a life estate in the apartment building. B can collect the rent
with respect to the rents of all of the tenants in the apartment building. Say, B,
wants to raze this 6-story apartment building. B would be enjoined if she
threatened to raze the apartment building and construct a single family homeb/c this would cause injury to the reversionary interest to the grantor or
grantor’s heirs.
Normally, granting a life estate here would have to include the words
“without impeachment of waste” in the conveyance. Then, B, would not be
permitted to raze the 6-story apartment building and build a single family
home, this would constitute equitable waste and this would be enjoined by
the court in equity.8) Tenant’s tort liability – duty of care to licensees, invitees, trespassers
(a) A tenant, in order to determine the duty of care which a possessor of land owes a licensee,invitee, trespasser.
(i) Trespasser duty-Generally, no duty of care owed to trespasser unless an anticipated or
discovered trespasser, then the possessor has duty to warn the trespassers of known
dangerous conditions which the trespasser would not normally discover himself or
herself.(ii) For a licensee, the duty of care generally owed is the duty to warn of known dangerous
conditions.(iii) Duty owed to invitee: Duty to inspect and make safe.
C) Landlord’s duties -Bar exam question dealing with landlord – tenant law, usually tested onlandlord duties, tenant duties, assignments, subleases. (multistate)1) Landlord duties
(a) Duty to deliver possession of premises(i) American rule: Landlord does not have obligation to actually delivery possession of
premises to the tenant.
A lessee does not acquire the legal interest in the premises until he actually takespossession in the property
In the event there is a trespasser or a holdover tenant (tenant at sufferance), thetenant’s exclusive remedy is against the wrongdoer and the tenant has no actionagainst the landlord. Tenant’s only recourse is to evict or go after the wrongdoer.
(ii) English rule (common law rule): Landlord impliedly warrants that the tenant will havethe legal right to possession at the beginning of the leasehold term
Contrary to the American rule in every lease, there is an implied covenant of quiet enjoyment.
The tenant may quit the premises in a timely fashion and no longer be obligated topay rent.
(b) Implied covenant of Quiet enjoyment (i) Eviction by the landlord reaches the covenant of quiet enjoyment and relieves the
tenant of his obligation to pay rent.(ii) This covenant ensures the tenant that his possession will not be disturbed by someone
with a superior legal title to the land including the landlord. See Restatement 2d § 4.1-4.3.(http://www.law.cornell.edu/topics/landlord_tenant.html)
Actual eviction occurs when the landlord or paramount title holder excludes thetenant from the leased premises.
Constructive eviction results from conduct or neglect on the part of the landlordwhich renders the premises uninhabitable.
(c) Premises suitable for particular purpose(i) Landlord does not impliedly warrant that leased premises is particular purpose.(ii) Landlord is not liable for dangerous conditions existing on the leased premises.
Doctrine of caveat emptor prevails (“buyer beware”).
(iii) Exceptions :
Where there is a hidden defect – if at the commencement of a lease, there is a hiddendefect, a landlord may be liable for the tenant, guest, invitees, licensees, if at thecommencement of the lease, there is a hidden defect which the landlord knowsabout or should know about and which the tenant is not likely to discover.
Rationale: Landlord is liable where he or she has enticed the lessee into a trap.
Where there is a completely furnished dwelling; landlord in a lease for a short period of time for a completely furnished dwelling impliedly warrants fitness of the
premises and the furnishings. If injury results from defects, the tenant or other people entering the premises
may recover against the landlord.(iv) Landlord is under no duty to repair. At common law and in absence of lease
covenant or statute, landlord is under no duty to repair. Tenant is under a duty to repairand to perform ordinary repairs, not a landlord.
A landlord may be liable where the landlord undertakes the repairs (the tasks of making ordinary repairs) and does so in a negligent fashion, then the landlord maybe liable in tort from the resulting injuries.
XIII) Leasehold estatesA) Tenancy for a term – tenancy for years
1) Fixed duration set forth in the lease – 6 months, 4 years, 5 years, etc.B) Periodic tenancies
1) Tenancy from month to month, week to week, etc.2) Continuing type of tenancy and not the inception of a new tenancy at the beginning of each
period.3) Automatic renewal: Tenancy does not terminate at the end of each period, but automatically
renews( week to week, month to month, etc.), unless one of the parties give notice of his or herintent to terminate.
4) Failure to give notice to terminate: 30-days notice (usually statutory); if notice is not incompliance with the statutory compliant, it is ineffective.
(a) Ex: 30-day notice period and one of the parties gives 29-days, notice is not effective.(b) If no termination (that’s valid), then automatic renewal.
C) Tenancies at will1) An estate that is terminable at the will of either the landlord or tenant.2) Common law – can be terminated without advance notice (unlike periodic tenancy).3) Continues indefinitely until terminated by one of the parties.
D) Tenancies at sufferance1) Tenancy arises where you have a holdover tenant, where a tenant wrongfully remains in
possession after the expiration of the lawful tenancy.2) Liability of a holdover tenant: Once tenant at sufferance is removed from land, then from
relation back to period of wrongful holdover period to the landlord as trespasser.
XIV) Assignments and subleaseA) Assignments
1) Absent no prohibition restricting or prohibiting transfers in a lease, a tenant may transfer herleasehold interest in whole or in part.(a) If she makes a complete transfer of her entire remaining estate, she has made an
assignment.(b) Conversely, where she has retained any part of her leasehold estate, then the transfer is a
sublease.(i) Ex: Landlord leases premises to tenant for 5-years. After Year 3, tenant decides to go to
Europe and tenant is planning on staying in Europe for the rest of her life, so shetransfers the remaining 2- years under her tenancy for years to her friend, Judy.
This would be an assignment. Tenant is transferring the entire remaining balance toher friend Judy, the assignee.
(ii) Ex: 5-year tenancy. After Year 2, Cathy has a job position in CA for 1-year (internship),
she’s been in possession for 2, she now wants to transfer…leave the st ate for 1year…but she plans to reoccupy her apartment for Years 4 & 5, so she enters into asublease with her friend where she transfers the premises to her friend for 1-year…since she retains part of the leasehold, then the transfer constitutes a sublease.
2) Effect of assignment by tenant (assignor), the tenant is still in privity of contract with thelandlord even where you have an assignment. **(a) There is no longer privity of estate between the tenant and landlord BUT(b) There is still privity of contract between the tenant and landlord.(c) You have an assignment and a leasehold agreement entered into between tenant and
landlord and then the tenant assigns his rights to the assignees – this is where the tenant transfers her entire remaining balance under that leasehold, in which case, the tenants and
landlord – no privity of estate. But there is privity of contract (i.e., covenant to pay rent).3) Between the assignee and landlord after an assignment there is both privity of estate andprivity of contract.(a) Assignee is bound to perform the original covenants in the lease and is held liable to the
landlord…(because these covenants run with the land like covenant to pay rent) and arebased on privity of estate and privity of contract.(i) What about a second assignment? Where the assignee reassigns her interest, her
privity of estate ends **, and unless the first assignee has assumed the covenants under the lease, then there is no
Second assignee will be in privity of contract and privity of estate with the landlord.(ii) There may be privity of contract where the first assignee has expressly or in writing has
assumed thecovenants under the lease, such as the covenant to pay the rent. **
B) Subleases1) Tenant and sublessee – no privity of contract and no privity of estate. However, the original
tenant (original lessee) remains in privity of contract and in privity of estate with the landlord.(a) A sublease creates no legal relationship between the landlord and subtenant.(b) The original tenant remains the landlord’s tenant and the sublessee is the tenant of the
original tenant (his landlord).(c) The original tenant therefore remains obligated under the covenants in the lease (i.e.,
covenant to pay rent).2) Assignment of the landlord
(a) Landlord’s reversionary interest is assignable. (b) The sale of an occupied apartment building constitutes such a transfer.(c) A landlord can convey his ownership interest in the premises or the property.(d) Recognition of the new landlord by the tenant is called attornment.
C) Lease covenants:1) Covenants against assignments or subleases are strictly construed.2) In a lease, you may have a clause prohibiting assignments or subleases.
(a) Many leases contain these clauses not make assignments or subleases without the consent of the landlord.b. These are strictly construed.c. A covenant that prohibits subleasing does not prohibit assignment and vice versa.
XV) Fixture-Chattel which becomes real property. (multistate)A) For a chattel to become a fixture It must be the intention of the annexor that the chattel becomes a
fixture.
1)
Intention of the annexor the chattel become a fixture(a) Various considerations in determining the intent of the annexor:(i) Nature of the article(ii) Manner of annexation to the land(iii) Injury to the land(iv) Completeness with which the chattel is integrated with the use to which the land is
being put. **(v) The relation which the annexor has with the land, whether the annexor is a licensee,
tenant at will, or the owner of the property.2) The chattel must be annexed to the reality either actually or constructively.3) The chattel must be appropriated for the purpose for which the land is to be used.
B) Trade fixtures -Chattels annexed to the land by the tenant for pecuniary gain during her tenancy.They are removable by the tenant whether she be tenant for life, tenant for years, tenant at will.
XVI) Non possessory Interest (Incorporeal) Rights in the land of others – Nonpossessory interests orincorporeal interestsA) Types of non possessory interests
1) Profits2) Easements3) Covenants running with the land4) Equitable servitudes
B) Profits a prendre / profits: The right of one person to go onto the land of another and extract orremove something there, such as sand, timber, or vegetable.
C) Easements: The right of one person to go on land in possession of another and make limited use ofthat property, such as for ingress or egress.
1) You grant someone an easement for ingress / egress – to use a walkway.2) Easement holder does not have right to remove substance in the property, but only has right to
enter the person’s property and make limited use – ingress or egress.3) Two types of easements:
(a) Easements appurtenant (i) Requires 2 parcels of land – dominant tenement and adjoining servient tenement.(ii) It is the owner of the dominant tenement (a.k.a. dominant tenant) has the right to enter
onto the servient tenement and has the right to make use of that tenement for ingressor egress.
(iii) Servient tenement is the land subject to the easement.(iv) Easement appurtenant runs with the land (adjoining tracts of land).
Ex: Jones is the owner of the dominant tenement. Smith is the owner of the servient tenement. If Smith gives Jones the right to enter onto the servient tenement foringress and egress. What happens if Jones conveys his property to Baker and Smith conveys his
property to Carl?
Easement appurtenant runs with the land because it can be enforced by oragainst successors in interest to the original contracting party.
If Jones conveys his property to Baker, Baker can enforce that easement against Smith or Carl.
(b) Easements in gross
(i)
Easement in gross – you don’t have 2 adjoining tracts of land; one parcel of landburdened with the easement.(ii) Ex: You only have a servient tenement subject to easement.
Ex: City installs a sewer line across your backyard or a city installs telephone linesacross your front yard.
(iii) Easement in gross is personal – it is intended to benefit the holder personally, ratherthan in connection with any land that owner may own – here, no adjoining dominant tenement.
(iv) Easement in gross can/may run with the land.
Ex: The City constructs a sewer line in your backyard. Jones is the owner of theproperty and Jones conveys the property to Smith. Certainly, that easement is going
to run with the land and is going to burden the land as far as Smith or any successorin interest may be concerned.
4) 2 basic classifications of easements:(a) Affirmative easements - Entitle the easement holder (usually, the dominant tenement
holder where you have an easement appurtenant) to make some affirmative use of thedominant tenement.
(b) Negative easement Prevents the servient tenement owner from doing some act or making aparticular use of her land.
(i) Ex: B, is the owner of Blackacre, located between the ocean and A’s property. A owns
Whiteacre. B agrees in writing not to construct any structure on his property that interferes with A’s view of the ocean. B has a negative easement –
B is promising to refrain from building on his property so that A’s view of the oceanwill not be impaired.
Negative easement prevents the servient tenement owner from doing some act or
making a particular use of his or her property.5) Creation of easement –
(a) An easement is an interest in land.(b) It comes within the Statute of Frauds –
(i) where you have a K for a sale or transfer for an interest in land, that K comes within thestatute of Frauds and
(ii) It usually must be created in writing in order to be enforceable.
– deed or other similar type of written instrument.6) 2 types of easements not in writing:
(a) Easements by implication (or necessity)(i) Where you have a sub-divisional scheme.
Ex: Baker owns a 100-acre tract of property and decides she is going to subdivideher property and sell off 100 1- acre lots to various buyers. Baker sells theseindividual lots to X, Y, S, U. There is a highway bordering on the eastern tract of theproperty. Baker sells this lot to Y, but in Y’s deed, no mention is made as to aneasement for ingress or egress over U’s land. The only access Y has to the highwayis over U’s land. Here, Y has an easement by implication over U’s property by ingress
and egress.
Usually, implication arises where reasonably necessary or strictly necessary for thebenefit of the dominant tenement owner. Also called an easement by necessity.
(ii) Easement by implication can arise by grant or by reservation
Where Baker is the owner of this subdivision and baker, the grantor, conveys this lotto Y, if Y, who is the dominant tenement owner, is to be benefited by the easement across U’s property where Y is the grantee, then this is an easement by grant wherethe easement benefits the grantee. The grantee simply has to show that theeasement was reasonably necessary.
But, where you have an implication by implication or implied reservation, theeasement benefits the grantor.
Ex: Baker, owner of the property, sells this lot to C and Baker retains these threelots here. Baker’s only access to the highway is across C’s property. In thissituation, it is the grantor who is benefited by the easement. Even though therewas no mention of the easement in C’s deed, we would say that if Baker’s only
access to the highway is by the property, this is an easement byimplication.
In order for the grantor to have an easement by implication, grantor is to showthat the easement is strictly necessary.
For the grantee, the grantee only has to prove that the easement is reasonablynecessary.
(b) Prescriptive easements (easements by proscription)(i) Adverse use
Use must be without permission (non-permission) Open
Notorious
Continuous (Use must be continuous for the statutory period)7) Easement may be extinguished by:
(a) Merger - Where the fee simple title to both the servient anddominant tenements come into the hands of a singleperson.(i) Ex: Where both the dominant and servient
tenements come under single ownership, acquiringtitle to both parcels of land.
(ii) Ex: Dominant tenement owned by Baker. This isthe servient tenement which is owned by Able. SayBaker has the easement / right to enter Able’s property for ingress / egress. Let’s say that Able purchases Baker’s land in which case Baker’s easement is extinguished by merger.
(iii) Where the servient tenement owner purchases theother parcel of land, then the easement isextinguished by merger. (tested on the multistate)
(b) Written release - where the holder of the benefit of the easement – (normally, the dominanttenement owner) may execute a release terminating the easement.
(c) Abandonment -Clear showing by the dominant tenement owner that she intends toabandon the use will extinguish the easement.
(i)
Mere non-use, no matter how long continued, will not extinguish an easement.(ii) Where you have nonuse coupled by the intent to abandon, this would be sufficient toterminate an easement.
(iii) Ex: Baker owns a large tract of land and many years ago, back in 1950, he gave theB&O RR company an easement over the northern half of his property to run therailroad lines. The B&O RR Co. used that easement and trains traveled over that tract of land, but within the last 5 years or 7 years, B&O has decided not to run its trains overthat line and is no longer using the easement. This mere nonuse will not extinguish theeasement. The easement will be extinguished if B&O removes the tracks – this will shownonuse coupled with an intent to abandon – this will extinguish the easement.
(iv) Excessive use does not forfeit or extinguish the easement.
it is up for the servient owner to bring an action of equity to curb the excessive use,that goes beyond the conditions of the easement, seeking injunctive relief in order toenjoin the excessive use from continuing.
(d) Prescription -An easement can be extinguished or terminated by prescription – when theservient tenement owner has used her land continuously and uninterruptedly for thestatutory period of prescription in a way that is inconsistent with and adverse to the easement and without the consent of the dominant tenement owner. The easement is then extinguished by prescription.
(e) . Destruction of the servient tenement -If the easement is in a structure (i.e., staircase orhallway for purposes of ingress or egress) and there is an involuntary destruction of thestructure (by fire or flood), then this will extinguish the easement.
8) Estoppel(a) B has a right of way over A’s Blackacre and tells A that he has no intention of using the right
of wayagain and has not used it for several years. A then goes build a house over B’s right of way.
B has seen the construction – the house being built everyday. B says I have a right of way,I’m going to continue to use that roadway for ingress or egress. B will be estopped from
using the easement.(b) Example of estoppel. Where the servient tenement owner in reasonable reliance of the
conduct or oral assurances of the dominant tenement owner, uses the servient tenement ina manner inconsistent with the use of the easement, this will result in extinguishment of the easement by estoppel.
9) Condemnation / eminent domain -Where you have condemnation of the servient estate, thiswill extinguish the easement.(a) Modern view: Where you have termination of an
easement by condemnation or eminent domain, theholder of the easement (dominant tenement owner)is entitled to compensation for value lost.
(multistate)(b) Same rule applies to profits. Where you
have the termination of a profit or easement by condemnation, then the profit holder oreasement holder is entitled for compensationfor the value that is lost. Profit holder oreasement holder not necessarily owner of property (just right to exploit).
D) Licenses -Mere permission to come on to land of another without being viewed as a trespasser.1) Unlike an easement, a license is not an interest in land. It is merely a privilege, a revocable
privilege, at the option of the licensor to come on to the land for that limited purpose.2) Generally, a license is revocable, but where the license is coupled with an interest, it is
irrevocable.(a) Ex: If you go to a shopping mall (the Beverly Center) and you go into the parking lot and in
the mall facilities, you pull your car in, park your car, and you go shopping. This is a license– mere privilege to park your car would constitute a license. If you had topay for theparking, then arguably now this interest could be viewed as a contract or it could be viewedas a license coupled with an interest that could make it irrevocable.(i) If you park your vehicle on someone’s property, where you have a mall-type facility,
where you don’t have to pay, this is a license.
(b) Ex: A is the owner of Blackacre and A sells B 100 bushels of potatoes
which are stored in a shed or warehouse on Blackacre and at the same timethat A sells B 100 bushels of potatoes, A gives B permission / a license to
enter Blackacre to remove the potatoes. Here, B has a irrevocable license
b/c B’s right to enter into the property is coupled with an interest (i.e., the
purchase of the potatoes).
(c) Ex: You’re a sports spectator and you go to watch the baseball team play, your sitting inyour seat at the stadium is a license. If you misbehave (throwing things at players, etc.),they can evict you from the stadium. The license is revocable. Property interest in sitting inthe seat – license.
(i) Tort classification – invitee (paying customer) (tort law). Duty of care to inspect andmake safe for you (owner owes you this) vs. license which is revocable
3) License is not an interest in land, does not have to comply with the Statute of Frauds, does not have to be in writing.
E) Covenants running with the land1) Hybrid between a contract and an easement.
2) More than just a personal contract, but less than an easement in the sense that a covenant isnot an interest in the land.
3) A covenant running with the land is attached or connected with the estate since it may beenforced against or by someone who was not one of the original parties – it may be enforcedby successors in interest to the original covenantor and convenantee (original covenentingparties).(a) There must be a covenant which must be in writing which is signed and complies with the
Statute of Frauds.(b) It must be the intent of the convenantor and convenantee that that covenant run with the
land.(i) As long as the words “assigns” or “successors” is used in the instrument, then the
intention is clear that the covenant was intended to run with the land.(c) Covenant must touch and concern the land.(d) Covenant must make the land more value (increase utility) or less valuable (or curtail the
use).(e) There must be privity of estate between the parties. One of the contracting parties
succeeds to an interest in the land of another.(i) Ex: Privity of estate between a landlord & tenant; privity of estate
between grantor and grantee. Grantor is succeeding to estate of landlord. Grantee is succeeding to estate of tenant.
4) Enforcement- Generally enforceable with actions at law.(a) Breach of covennt is similar to breach of contract.(b) Nonbreaching party brings damages to recover for breach of contract or covenant.
(i) Breach of contract recovers money damages.(ii) But sometimes -- Damages may be inadequate, may seek injunctive relief.
5) Terminating covenant (a) Covenant running with land may be extinguished in the same way as an easement or profit.
(i) a. Merger(ii) Abandonment (iii) Estoppel(iv) Release
F)
Equitable servitudes-Restriction on the use of land enforceable in equity.1) In order to have an equitable servitude, 3 requirements must be satisfied:(a) There must be a writing, complying with the Statute of Frauds.(b) The intention of the parties determines who may and who may not enforce the equitable
servitude. Intention on the parties to bind the land with this servitude.(c) Notice. The transferee or grantee must take the land with either actual or constructive
notice of the existence of the servitude.(i) Cannot be enforced by a person who gives value but has no
notice of the servitude, namely a BFP. You have to havenotice.
Privity of estate is not required for an equitable servitude.
One lot owner to bring suit to enjointhe nonconforming use from beingmade, this is an equitable servitude – b/c this is a restriction in equity. If
remedy is in equity, the restriction isusually an equitable servitude.
What is the remedy? Where remedy is an action brought at law for moneydamages, you must have covenant running with the land.
(f) Extinguishment of equitable servitude:(i) Can be extinguished or terminated by release, merger, abandonment, etc.(ii) Changed neighborhood conditions may also operate to terminate an equitable
servitude.(iii) Where the purpose of the servitude becomes meaningless or impossible of
attainment b/cof changed neighborhood conditions, this results in extinguishment in equitableservitude
Ex: neighborhood conditions(commercial development – officebuildings, or gas station built onneighborhood, etc.), where purpose of servitude is meaningless, then change inneighborhood conditions will extinguish anequitable servitude.
Zoning changes will not terminate anequitable servitude which are inconsistent
with the restrictions in the common plan.
XVII) Rights incident to possession and ownership of landA) Adverse possession
1) Adverse possession doctrine is based upon the statute of limitations for recovery of realproperty.(a) Statute of limitations operate not only to bar one’s right to recover real property held
adversely by another but may operate to oust adverse possessor with title to the propertyas though he had received a conveyance by deed.
(b) Definition: Somebody occupies property of another,(i) adversely without permission,(ii) openly,(iii) notoriously,(iv) continuously and(v) for the statutory period (for the statute of limitations), then he can acquire title by
adverse possession and divest the rightful owner of the right of property.
(c) Requirements:(i) Use must be adverse (without permission)(ii) Actual and exclusive(iii) Sole, physical occupancy
If the owner of the property is still occupying theland, then your use (adverse possessor’s use) is not
actual and exclusive.(iv) The use must be hostile and adverse (without permission)(v) The use must be open and notorious (not secret and clandestine)
Adverse possessor must present to the world that he or she is the owner of theproperty.
(vi) The use must be continuous and without interruption for the statutory period – 7-years, 20-years, etc.
For the statutory period.(vii) Use must be peaceable (no forcible physical eviction or eviction by court action).(viii) All elements must exist in order for adverse possessor to take title away from the
rightful owner.(d) Frequently tested on bar exam:
(i) Limitation of adverse possessor’s claims: Adverse possessor cannot acquire a larger
estate than he or she claims in the property. Ex: If the adverse possessor only claims a life estate in the property, then he may
not acquire a fee simple title in the property.(ii) Adverse possessor cannot claim title to less than a freehold estate. No one claiming less
than a freehold estate may get title by adverse possession. Must claim a life estate, feetail, or a fee simple.
(iii) Statutory period on adverse possession begins to run when a cause of actionaccrues against the
adverse possessor.(iv) Recording statutes have no application to adverse possession.(v) Tacking : There need not be continuous possession of the property by a single
individual. The period of adverse possession may be tacked on by one adversepossessor to another, as long as there is privity between the two individuals.
Privity exists between adverse possessors if the interest of one is passed onto theother by descent, deed, will, written contract, oral contract, oral gift, or merepermission.
(vi) Disability -One who is under a disability whether due to minority, imprisonment orinsanity. At the time of the accrual of the cause of action by the adverse possession, isgiven by statute – most states permit a person under the disability to toll (stopped) the
running of adverse possession until the disability is removed. Statute of limitations is for example 10- years or 20-years in fact pattern. Facts say
that this jurisdiction has this statute in effect – the statute which tolls the runningforremoval of disability is phrased in this fashion: “an action for the recovery of landshall be commenced within 10 years or 20 years after the right of action first occurred,but if a person entitled to bring such action at the time the cause occurs is within theageof minority ,of unsound mind, or in prison, such person shall bring such action
within10 years after the disability has been removed.”
Where you have disability, that person has an extra period of time (ex: 10 yearsafter with which tobring an action against the adverse possessor). Tolling – takes into account thedisability.
(vii) Title acquired by adverse possession is a substantive law title (good as gold).Recording statutes don’t have application to title acquired by adverse possession.
(viii) Honest mistake: Where a person occupies property of another openly, notoriously,continuously for the statutory period under mistaken belief that he or she is the rightfulowner of the property. Minority view: Possessor does not hold title adversely unless the person intended to
hold the property against the whole world, including the rightful owner in order foradverse possession statute to run. Where the adverse possessor wrongfully believes he’s the rightful owner, you
don’t have the subjective intent to adversely possess. Majority: If you have an honest mistake, you can still acquire title via adverse
possession. The possession alone, not the subjective intent of the adverse possessor,is what is important. Visible adverse possession + intent to possess constitutes adverse character and
not the subjective belief of the adverse possessor.B) Lateral and subjacent support -Right of landowner to have land supported laterally by
neighboring land is inherent in the land itself.1) Lateral support
(a) Right of lateral support: Land in its natural condition without any buildings or artificialstructures by excavation or otherwise withdraws lateral support from his neighbor’s land
is absolutely liable reliable of negligence – absolutely liable for damage caused to the land.
(b) Where you have artificial structures on the land and the land in its natural condition wouldhave been injured by the taking away of lateral support:(i) English rule (minority rule – minority of states): Recovery would include both damage
to the land and damage to the artificial structures.(ii) American rule (majority view) Recovery is limited to damage to the land and does not
include damage to the artificial structures on the land. **(c) Negligent excavation: English rule + American rule:
(i) If there is negligence on the part of the excavator / wrongdoer who removes lateral orsubjacent support, then the D is liable for the damage which naturally and proximatelyflows from his negligence, including recovery for damage for both land and artificialstructures.
2) Subjacent support: Support from underneath the surface of the land vs. the sides. Same rulesapply (right to below the land, as opposed to the sides) as lateral support.(a) Interference with underground water-If one excavates and this releasing semifluid or
semisolid material from his neighbor’s land causing his neighbor’s land to sink, there is
liability.C) Water rights -.
1) Lakes and streams on the surface
(a) Riparian water rights (riparian land – land with natural watercourse, such as a river) thisdoctrine is predominant in a majority of states – all attracts of land which abut or toucheslakes or streams is riparian. To be riparian, one only needs to be an owner of riparian land.
(i) Natural flow theory - Each riparian owner has a fundamental right to have the stream
or lake remain substantially in its natural state, free from any unreasonable
diminishment in quantity and free from pollution. Each riparian may use the water for
natural or artificial uses so long as he or she only uses it on riparian land and only does
sensibly so as not to affect the quantity or quality of the water.
(ii) Reasonable use theory -Each riparian owner has a fundamental right to make maximum
use of the water in the lake or stream provided that such use does not unreasonably
interfere with the like use of other riparians. Each riparian owner may use the water
for any beneficial use, either on riparian or nonriparian lands, so long as he or she does
not unreasonably interfere with the reasonable use of other riparians.
Ex: (multistate) A, an upper riparian, along a stream of water, diverts the water
from the stream for the purpose of irrigating his riparian and non-riparian lands.
The diversion of the water causes the level of the water
to go 6 inches below its natural or normal level. However, there is plenty of water in
the stream to support all of the uses to which the lower riparian can put the water
use to. Under the natural flow theory, an injunction would issue b/c B has the right
to have the level of the water maintained. A’s use reduced the water level by 6inches…violating natural flow theory. However, under the reasonable use theory,
the injunction would not be granted b/c B can show no injury to himself as a lower
riparian b/c in the facts…plenty of water left for the lower riparians.
(b) Natural and artificial uses
(i) Natural uses – uses necessary for daily sustenance of human beings:
Household uses
Consumption uses
Domestic purposes (gardening for example)
(ii) Artificial uses
Irrigation Power Mining
Industrial uses
(c) Majority rule - Use of water for natural purposes is paramount and takes precedence over
(a) Common law rule (common enemy rule): Majority: A land owner has unlimited discretion
in dealing with surface waters. Surface waters = common enemy Landowner has unlimited
discretion in dealing with surface waters – can build dikes or drain the water – and not be
held liable to his or her neighbors.D) Surface rights (& subterranean rights) & above surface
1) Surface rights include natural vegetation such as trees, shrubs, growing crops (chattels
attached to the land)
(a) Fructus naturales -Trees, grasses, shrubs – these are viewed as being fructus naturales and
are considered to be part of the land. They are considered to be a natural part of the land /
real property.
(i) If trees, etc., are owned by property line of adjoining landowners, then the landowners
own the trees as tenants in common.
(ii) Passes with conveyance of land.
(iii) Those crops which come from nature’s bounty, without the aid of man – trees,
shrubs, grasses
(iv) Viewed as real property until they are severed from the land.(b) Fructus industriales - Comes from man’s industry / Man’s annual planting,cultivating
(i) Called emblements: usually annual crops. But, if crops such as apples, pears, grapes,
raspberries, oranges, grapefruit, lemons…some of these crops are perennial, but they
are still referred to as emblements (even if they are perennial crops).
(ii) Viewed as Personal property
2) .Multistate Examples
(a) If a tenancy is an estate for years, having a definite time of beginning and a definite date of
termination, the tenant’s right to remove growing crops or emblements is terminated when
the tenancy is closed. Any crops remaining becomes the property of the landlord. (wherethe tenant grows fructus industrials crops). If the tenant has severed the crops at the end of
the tenancy, but the severed grain remains on the land, then this is viewed still as personal
property and the crop belongs to the tenant.
(b) Where you have a tenancy of will, if the tenancy is of uncertain duration, having no certain
date of termination,
tenant has a reasonable time to remove crops which are planted after the termination of
the term. This is regularly applied in a tenancy at will. If you have a tenancy at will the rule
is that a tenant is permitted to remove all growing crops (all fructus industrials crops) after
such tenancy if such crops are planted in the ground at the notice of termination and the
tenant is given sufficient time to remove such crops.
(i) Minority view: rarely tested (contrary to rule of emblements) (followed in FL): on the
death of the life tenant, the title of an immature orange crop vests in the remainderman
(contrary to common law view); personal representative of deceased life tenant is
entitled to recover the sums invested in cultivation of the crop. The life tenant will not
be entitled to proceeds of the crop.
XVIII) Conveyancing and mortagesA) Conveyances in US-statutes usually provide that freehold estates may be conveyed by deed or
other instruments; a writing which evidences an intention to convey an estate will be sustained
even though it does not necessarily constitute a deed.
(a) Must be present in the writing for a valid conveyance (Statute of Frauds)
(b) Writing must identify the grantor & grantee
(c) Sufficient description of the land conveyed.
(i) Description is adequate if it provides a good lead of the property sought to be conveyed.
Ex: All of my land in LA county is sufficient for land to be conveyed.
(ii) Insufficient description – description is too indefinite to describe the land, then title
remains in grantor, subject to suit for reformation of the deed.
Parole evidence is admissible to explain or supplement a written description or
clear up an ambiguity.
2 basic types of ambiguity:
Patent ambiguity - Appearing on face of the document or deed.
Latent ambiguity -Appearing after presentation of evidence.
(d) Purchase price must also be included
(e) Promises on both sides, where the grantor promises to convey the property and the
grantee agrees to pay the purchase price for the property.
(f) Writing must be signed, usually by the grantor or the party to be charged.(i) Oral promise to convey land where you have the doctrine of substantial part
performance. Purchaser can enforce the oral K where:
Where the purchaser pays the seller part or all of the purchase price and the buyer
takes possession of the property or where the buyer pays part or
all of the purchase price and makes improvements on the land
The oral K is taken out of the Statute of Frauds and made enforceable where this
applies.
B) Delivery and acceptance of deeds
1) In order to have a valid conveyance, you must have delivery of the deed. A deed is not effective to transfer property unless it has in fact been delivered.
2) Physical transfer of the deed is not necessary to make a valid delivery.
(a) Delivery refers to the grantor’s subjective intent.
(b) Valid delivery / effective delivery, we look to grantor’s intent:
(i) Can be satisfied by words or conduct, showing that the grantor’s intent is that the deed
have some operative effect.
(ii) Title may pass even though the right to possession may be postponed to some future
time.
Ex: A draws an instrument conveying Blackacre to B and hands the
instrument to b for safekeeping. Although handed to the grantee,
not a valid delivery, b/c no evidence that the grantor intended that
the deed have present operative effect (i.e., make present transfer of the land).
Ex: A draws up an instrument conveying Blackacre to B and
attempts to give instrument to B personally, but is unable to find
him. A quits possession of property and treats B as the owner.
Nearly all courts have held there is sufficient delivery b/c it was
the present intent of the owner to make a valid conveyance.
3) Delivery issues –two tested
(a) Where the grantor retains the deed or the grantee gets physical possession of it, or
(a) Oral agreement is valid and enforceable and does not have to come within the Statute of
Frauds.
F) Covenants in deeds respecting title-there are six covenants for title in Real prop.
1) 3 of these are breached, if at all, when the deed is delivered
(a) Covenants for seisin
(b) Covenants for right to convey
(c) Covenants against encumbrances
2) 3 covenants are in the present tense.
(a) Covenant of quiet enjoyment
(b) Covenant of general warranty
(c) Covenant of further assurances
3) Cover breaches that occur after the deed is delivered (in the future).
(a) 3 types of deeds:
(i) General warranty –provides for usual covenants-include the first five: sisin, right to
convey, encumbrances, quiet enjoyment and general warranty. When a deed provides
for usual covenants, this generally construes a general warranty deed.
(ii) Special warranty –contains fewer warranties, one or more htat is dicussed(iii) Quit claim No assurances and no warranties; grantee takes whatever the grantor has in
the property.
4) Covenants for seisin and right to convey:
(a) Very similar / synonymous
(b) Guarantee to the grantee that the grantor owns the estate which the deed purports to
convey.
5) Covenant against encumbrances - Property conveyed – no outstanding mortgages, liens, or
restrictions - -easements or profits – that does not diminish value of property.
6) Covenants of quiet enjoyment and covenants of general warranty
(a) Construed to have the same legal effect (b) Defend the grantee-covenantee against all legal claims by grantor or third parties who
would evict the grantee-covenantee actually or constructively.
7) Covenant for further assurances -Not used much in the US -Undertaking on the grantor’s part –
to do something on his or her part to perfect the grantee’s title.
(a) Note: None of the covenants protect the grantee against trespass or regression of a mere
wrongdoer.
(b) First 3 covenants cannot run with the land b/c they are personal choses in action when
they are breached at the time the deed is delivered:
(i) Covenants for seisin
(ii) Covenants for right to convey
(iii) Covenants against encumbrances
(c) Last 3 covenants (quiet enjoyment, general warranty, further assurances) run with the land
and can be enforced by remote grantees that take through the covenantee grantee.
8) Covenants are contracts of indemnity and they indemnify grantee for his or her loss.
(a) Damage must be shown for recovery by the grantee.
G) Estoppel by deed (Quiet title doctrine) -If a person executes a deed purporting to convey an estate
he does not have, or does not own, or he purports to convey land of a larger estate which he does
not own, then the grantor acquires after acquired title to the property, according to this doctrine,
that estate passes to the grantee.
1) Ex: O is the record title owner of Blackacre. A, mistakenly believes that he is the owner of the
property. A conveys a deed to B, purporting to convey title to Blackacre. A mistakenly believes
he is the owner and makes this deed to B. After the A-B deed transaction-conveyance, O does
convey Blackacre to A. In jurisdiction that followsestoppel by deed doctrine, once O makes
conveyance to A, then title inures to the benefit of B by application of estoppel by deed or after
quiet title doctrine.2) Subsequent BFPs A makes a conveyance to B. O is the owner of the property. Thereafter, O
conveys to A. If Agoes ahead and after acquiring that deed from O, A conveys the property to C and C knowsnothing about the A-B transaction – B did not record and C is viewed as a BFP who paidconsideration without any prior notices, the majority rule is that a subsequent BFP prevailsover that prior grantee (i.e., B) in a majority of states.
H)
Recording Acts - Provide a means for giving constructive notice of ownership.1) 3 basic types of recording acts:(a) Pure race -Whoever records first, prevails.(b) Pure notice -The subsequent BFP who pays value without notice of any prior conveyances
or prior notices of encumbrances on the property prevails, whether or not she records first(c) Race-notice -Combines essential features of pure race & pure notice. Subsequent BFP who
paid value without notice of any prior conveyances, but records first prevails. Only BFPsare protected under notice and race-notice statutes.
2) Typical notice statute -“Conveyance of an estate in land shall not be valid against anysubsequent purchaser for value, except such persons having actual notice of it, unless theconveyance is recorded.”
(a) Ex: On Jan. 1st, O conveys Blackacre to A. A does not record. On Jan 15th, A conveysBlackacre to B who gives valuable consideration and has no notice of the conveyance to A.B prevails over A and B is a BFP without notice of conveyance.
3) Mortgagees are also protected – treated as BFPs – and they, too, are protected.I) Mortgages - Interest in land created by a written instrument providing security for an outstanding
debt.1) Whenever you take out a mortgage on property, the mortgagor (person who takes out a
mortgage with the bank), you execute(a) the promissory note which is evidence of the debt;(b) you also execute the mortgage (the security of the debt)(c) mortgage and the note is inseparable
2) The mortgagor is the property owner who takes out the mortgage with the bank.(a) The bank is viewed as a the mortgagee.
3) Multistate:(a) Ex: You take out a $500,000 mortgage on your property with the bank. Mortgagor conveys
property to a buyer (sells). Exam: Whether the buyer is going to be personally liable to thebank for the mortgage debt still outstanding. Look to the deed of conveyance from themortgagor to the buyer:(i) If the deed states that the buyer assumes the mortgage, then the buyer is personally
(ii) On the other hand, if the deed is silent as to the existence of the mortgage or if the deedstates that the land is subject to the mortgage, then the buyer is not liable personally tothe bank for that mortgage debt.
(b) Two types of actions:(i) In personam action - Is the buyer personally liable for the mortgage debt?
He is if the deed contains language that the buyer assumes the mortgage debt.
(ii) In rem action -If the buyer should fail to make mortgage payments, then the bank canforeclose because its security interest, is an in rem type interest and the bank can bringa foreclosure action where there is a default by the buyer.
(c) Mortgages come within the recording statutes and they must be recorded in order toprotect a mortgagee. If a mortgage is not recorded and a mortgagor conveys property to abuyer without notice of that mortgage in a notice or race-notice jurisdiction, a buyer cantake the property free and clear of the mortgage if it’s not recorded by the mortgagee. **
4) Equity of redemption (statutory redemption) –comes into play in this situtaion:(a) The mortgagor takes out a $500,000 mortgage on the property with the mortgagee. The
mortgagor then defaults. After the default and before the mortgagee brings a foreclosureaction, the common lawpermits the mortgagor to pay off the mortgage debt and then reacquire clear title to theproperty.
(b) But, mortgagor may default and then the mortgagee institutes a foreclosure action, there’s
a foreclosure sale, and the mortgagee sales the property to Baker for $700,000. After theforeclosure sale, the mortgagor then attempts to repay the bank the $500,000 he owes thebank. This is known as statutory redemption. In most states, by statute, most states permitsthe mortgagor ….most states give the mortgagor 6 months to 12 months after thedefault…(foreclosure sale has already happened) to repay the bank the mortgageindebtedness even though there’s been a foreclosure sale and title has passed to Baker.Mortgagor can still pay off debt to bank – mortgagor is entitled at his election forredemption against mortgagee for value of land or the proceeds from the foreclosure sale**.
(c) State that follows statutory redemption – if the mortgagor owed $500,000, bank soldproperty for $700,000 and then mortgagor pays off the mortgage indebtedness, themortgagor would be entitled to receive from the bank the difference from the foreclosuresale or the $200,000.
