common law property

forfeiture

"O to A for life, remainder to B if B attained age 21", and when B was 16, A's life estate was forfeited, the contingent remainder is destroyed

subsequent owners

- those people who were not original parties to the contract, but who now own property that may be benefited or burdened by a covenant entered into by a previous owner if the covenant runs with the land; - since a subsequent owner cannot be bound or benefited under traditional privity of contract theory, the subsequent owner will benefit or be bound only if the benefit or burden runs with the land

state of mind of record owner: majority view

--presumptively non-permissive - that the AP uses the occupied property without the true owner's permission o Burden of proof to demonstrate that that permission was given is on: record owner o Presume that if stranger is using your property that they are doing so without your permission. Record owner must prove they granted permission for their defense

state of mind of record owner: minority view

--presumptively permissive o Burden of proof to prove no permission was given is on: adverse possessor o Presumption that if someone is using property for a period of time and the owner did not eject them, that person had permission. So the AP has to prove their use was non-permissive.

elements of adverse possession:

1) Actual 2) Open and notorious 3) Exclusive 4) Hostile or adverse 5) Continuous

3 types of freehold estates:

1. Fee simple absolute 2. Life estate 3. Fee tail

abandonment elements

1. an act of abandonment 2. intent to abandon (not presumed; intent must be proved)

possession elements:

1. an intent to possess on the part of the possessor, 2. his or her actual controlling or holding the property

defenses to an eviction action that can be raised by a tenant:

1. constructive eviction 2. Warranty of habitation was breached 3. Covenant of quiet enjoyment was breached o Warranty of habitation was breached o Covenant of quiet enjoyment was breached

• Tenant breaches (failure to pay rent or any other breach of the term of the lease) and refuses to leave:

1. eviction 2. holdover and renew 3. self help 4. summary process

actual possession purposes

1. gives notice to the true owner and others who come to the property that the adverse possessor is using the property 2. indicates that the adverse possessor may be claiming the property and has ousted all other persons 3. the date the adverse possessor entered onto the property triggers the true owner's cause of action in ejectment or trespass, and the adverse possession statute of limitations period starts to run

elements for equitable servitudes to bind and benefit subsequent owners (injunctive relief)

1. made in writing 2. intent to bind successors 3. touch and concern 4. notice

elements for real covenant to bind and benefit subsequent owners (money damages)

1. made in writing 2. intent to bind successors 3. touch and concern 4. notice 5. privity of estate (horizontal and vertical)

owner

100% ownership rights

future interest

• Person who has property in the future - person must wait until some future time to take possession of the property

benefits of color of title

AP with color of title who successfully proves an AP claim based on actual possession of a part of the tract described in the document constituting color of title is deemed to be in constructive possession of the whole tract

tacking

Adding up periods of time until you have enough time to satisfy the statutory period. If you can prove one person in chain of title satisfied all the elements with the intent to transfer the disputed parcel and transferred down the chain, tacking is permitted, and the AP becomes the true owner. The current AP does not have to satisfy the elements of adverse possession alone • Have to tack from immediate possessor before you. • So DON'T go through whole analysis on exam. Just see if their ancestor in title satisfied the elements and if they transferred title with intent to transfer the disputed parcel. Tacking will work if: o A satisfies all elements except time and intends to transfer the disputed parcel to B o And B intends to transfer the disputed parcel to C o Doesn't matter if B or C satisfy any elements

• Unity of Time

All co-owners must acquire their interest in the parcel at the same time

fee simple determinable

An estate that would be a Fee Simple Absolute but for a provision in the transfer document that states the estate shall automatically terminate on the happening of an event or nonevent. Characterized by words of duration -future interest: possibility of reverter - "O to A so long as the property is used for church purposes."

condition subsequent

An event whose occurrence or lack thereof will terminate the estate; once the event occurs, the estate holder's interest ends and the property either reverts to the original grantor or passes to a third party

mutual horizontal privity

both parties have an ongoing simultaneous interest in some piece of property; arises when one original party transfers an interest in land to the other party (present or freehold estates; leases; or easements) The transfer of the property and the creation of the covenant must occur simultaneously.

easement by prescription

can be gained by long-continued adverse use; elements are the same as adverse possession just substituting "use" for "possession"

Divisible

can draft a will and transfer this estate/property to anyone you choose

o Wait: can let the unit remain vacant until the original tenancy expires

Traditional • A landlord can allow the unit to remain vacant until the end of the tenancy and sue for the entire amount of the outstanding rent that accrued while the unit remained vacant • The tenant agreed to pay rent for that duration and that obligation shall remain in place whether the tenant is in the unit or not • Not favored because it takes good property out of commerce and it is inequitable for the tenant • Modern • LL must make good faith attempt to relet the unit and fair dealing • Unfair to a tenant to allow property to sit vacant and there is an implied duty to mitigate damages in every contract, including a lease • Burden of proof is on the LL when they are seeking damages that they were acting in good faith to relet the property and were unable to do so.

alienable

capable of being easily sold or transferred without limitation or restriction

Rule of convenience

Can close the class early when: • 1. At least one member of the class is entitled to the distribution and • 2. The time designated for distributing the property has arisen. • This is not a rule of law, it's an equitable principle.

Alternative Contingent Remainders

Contingent remainders are "alternative" when they each follow the same estate and when their conditions precedent are the opposite of each other, so that the vesting of one precludes the vesting of the other. -if the grantor makes no such alternative provision, he retains a reversion. - if the condition happens, one party will own the property, if the condition or event does not happen, the other party will own the property

issue

children

possession

controlling or holding of personal property, with or without a claim of ownership

class gift

a class is said to remain open as long as more people can be added to it; As long as a child is conceived when the class is open, that child will be a member of the class if born alive. This applies even if class closes before birth. -The class closes naturally when the parent dies

application

courts in most jurisdictions evaluate the facts and find an easement by estoppel where they feel the claimant acted in good faith on the servient estate owner's words or actions, and the servient estate owner's words or actions are such that he rather than the claimant should bear the consequences of any confusion

joint tenancy creation

created by a deed or a will; cannot arise by intestate succession: two or more persons inheriting the same property become tenants in common

shifting executory interest

Divests the grantee; shifts from one grantee to another "O to A, but if A does not graduate from law school by age 30, then to B."

Springing Executory Interest

Divests the grantor; springs from grantor to grantee "O to A one year after O's death"

state of mind of the AP: subjective

Good faith • Must possess the property in good faith in order to succeed as a claimant. If no good faith, you will not be a successful adverse possessor. • Ex. Possessing as a result of a mistake. You thought you owned the property but you really didn't. Intentional (bad faith) • Some jurisdictions will only grant remedy of AP if you intentionally dispossessed the land of another. This encourages land theft and is disfavored. • Ex. squatters Claim of right • The adverse possessor intends to appropriate and use the land as his own to the exclusion of all others. • Restating elements of actual and exclusive use. Argument that this has no meaning because you've already proved these elements.

Destructibility of Contingent Remainders

a doctrine that provides that a contingent remainder is destroyed if it is still contingent when the prior estate ends; o "O to A for life, then to the kids of B" • If B has no kids • Traditional: the kids' contingent remainder was destroyed • Modern: Kids' contingent remainder will be modified • Grantor will have a FSSEL • Kids will have springing executory interest • Basically have to wait to see if this interest will vest or not. Have to wait until the parent of the class dies to determine if it will vest and to whom. • When first child is born, this is a divesting condition. Every further child born is shifting executory limitation.

Privity of estate

In the absence of a contract, there are two successive AP's transferring the same general parcel.

non-freehold estate

Less than freehold. A non-ownership or leasehold estate, which a tenant possesses in real property.

strict vs. relaxed

On the burdened side, we require strict vertical privity; on benefitted side, we allow relaxed vertical privity • Strict vertical privity: a prior owner/grantor transfers their interest retaining no interest in the property for themselves - everything they own they transferred out (FSA to FSA or assigning interest) Relaxed vertical privity: all that is required for a benefit to run is that a remote or subsequent owner have a possessory interest in the property (tenant and subtenant or a landlord and a tenant)

Landlord bundle of rights

Once the landlord has effectively split its ownership interest into freehold and non-freehold parts, in accordance with the non-freehold, the LL has the right of reversion, the right to receive rent, right to have their units maintained in some form, may have the right to enter that property for a particular purpose (purposeful entry)

licensee

One who receives a license to use, or enter onto, another's property. • Temporary grant of permission to use the land of another person • Revocable at the whim of the licensor

Fertile Octogenarian Rule

Presumption that a person is fertile, no matter his or her age. So a gift to a class such as children will be treated as a contingent remainder until the class "closes"

abandoned property

Property that has been discarded by the owner, who has no intention of reclaiming it; without transferring his rights to another person belongs to the finder

Pierson v. Post

RULE: A person who is pursuing a wild animal does not acquire a right to that animal by the mere fact of pursuit; Mere pursuit of wild animal with an intent to capture does not constitute ownership. Since Post never actually controlled the fox, the appellate court ruled Post never took legal possession. The control element of possession was not present; and without it, Post does not have sufficient interest in the fox to warrant the court's hearing his complaint.

constructive possession

The ability to exercise control over property or objects, even though they are not in one's physical custody.

ejectment

The legal process to have a trespasser or tenant at sufferance removed from property . • Only can be brought by record owner. -the defense is "no I am not a trespasser I am an adverse possessor." Standard of proof o Clear and convincing evidence

Rule Against Perpetuities

The rule that prohibits an owner from controlling what he or she owns beyond a life in being at the owner's death, plus 21 years. The rule requires vesting within a certain time; the rule will invalidate future interests that vest too remotely *No interest is good unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest

executory interest

a future interest in a third party that takes effect only when the preceding interest is divested or cut shorts by a condition subsequent

touch and concern

Traditional rule o The touch and concern had to affect the physical way you utilized the property Modern rule o Touch and concern also affects the value, quality of the land, how enjoyed, etc. o Much broader • From the benefitted side, did the covenantor intend to benefit the neighboring parcel? - this element is premised on the presumed intent of the original parties to the covenant - it asks whether a reasonable person upon reflection and hindsight would have intended the covenant to run with the land; focuses on the reasonableness of having the covenant bind successors - often indicated when the subject of the covenant under review is so connected to the use of the land that the original parties must have expected it to run

o Joint tenancy is characterized by the 4 unities

Unity of Time • Unity of Title • Unity of Interest • Unity of Possession

vested remainder subject to open

Vested remainder held by one or more living members of a group or class that may be enlarged in the future - "O to A for life then to A's children." --the remainder to the children is a class gift since it is to a group of persons identified by description rather than by name --Assume A already had one child, B, and is still alive. B has a vested remainder since his interest follows the natural termination of A's life estate and there is no condition precedent. But A may have more children, and the class remains open until A's death. So A's child, B, has a vested remainder subject to open.

remainder

a grantor may provide that some third party will take the property after the life estate ends; a future interest in a third party that remains after the interest and estates prior to it end naturally. - grantor retains no future interest "O to A for life, then to B."

relativity of title

a person can have a relatively better title or right to possession than another, while simultaneously having a right inferior to yet another person

ascertained person

a person is ascertained if he or she can be specifically determined at the time a transfer or devise is effective

actual possession

a person is not required to live on the property although they often do; mainly performing actions that a true owner would (building houses/fences, farming, hunting/fishing, etc.); the AP has the burden of proving the boundaries to the land used adversely; generally, they only gain ownership of the only that amount of property as they actually occupy

trespasser

a person on another's property without consent

covenant

a promise to do or not do something

Vested remainder subject to complete divestment

a vested remainder that may be subject to divestment before or after it becomes possessory; • If you have something that looks like a defeasible vested remainder (either FSD, FSStoCS, or FSSEL), ask yourself can this grantee also lose this grant/be divested during the preceding life estate. If you have a vested remainder in the form of a defeasible vested remainder, you have to ask if this grantee can be divested (lose conveyance) during the preceding life estate. • If the answer is yes, it's a VR subject to complete divestment. You must modify the VR FSA to VR subject to complete divestment. • If no, you do nothing.

real covenants and equitable servitudes

agreements, promises, or deed provisions that relate to real property and that bind or benefit subsequent owners of the respoective properties solely because they own the property; said to run with the land; must be expressly created in a writing (usually a deed) the objective of the law of real covenants and equitable servitudes is to distinguish those covenants that bind and benefit subsequent grantees from covenants benefitting or obligating only the original promisees or promisors • Person who makes the promise is the covenantor • The recipient of that promise if the covenantee

personal property

all property other than real property (objects)

easement implied by necessity

an easement implied for egress and ingress (right of way for landlocked estates); land-locking a property destroys so much of its use that the law presumes that the parties to the land-locking transaction could not have intended not to include a right of way onto the land Elements: 1. a common owner severed the property, causing the dominant estate to become landlocked 2. the necessity for right of way existed at the time of the time of the severance 3. right of way is strictly necessary for the landlocked parcel.

civil trespass

an unprivileged intentional intrusion on property possessed by another • Does not have to be a person, can be an object • Intent: voluntarily (not as high of a standard as mens rea for example) - does not have to be purposeful or knowing it's the land owned by another, just voluntary

irrevocable license vs. easement by estoppel

basically the same except irrevocable licenses are written and recorded in accordance with the statute of frauds Minority rule • Rule says you cannot have an implied easement including the easement by estoppel • Cannot create an easement by implication, it must be in writing (statute of frauds) Majority Rule • Recognizes the easement by estoppel.

easement in gross

benefits a person whether or not he owns a particular parcel of land; lacks a dominant estate; commercial easements in gross are assignable (a telephone co. with easements in gross can assign its easement sin gross to a successor telephone company) Personal easements in gross are generally not assignable unless circumstances or the document creating the easement expressly stipulates that it is

easement in gross

benefits a person; unless assignable, ends at the owner's death Must be clear from the express grant or from surrounding circumstances

easement appurtenant

benefits the owner or possessor of a particular parcel of land; implicitly conveyed with the property it benefits, whether or not the conveyance expressly mentions the matter; it has the potential to continue indefinitely; these are divisible • 1. Need a writing to create • 2. Need to prove intent (person creating the easement must intend to create the appurtenant easement that intended to run with the land) • 3. Person who owns the burden side must have notice of that easement (actual, inquiry or constructive) • Dominant estate o 1. Need intent to benefit this adjacent parcel o 2. Will already have notice

devisee

• Person receiving property interest based on a will

intent to bind successors

for a covenant to run with the land, the original parties must intend that the covenant benefit and/or burden subsequent owners rather than that it merely be a personal agreement between the original parties; intent that the covenant will run with the land must be ascertainable from the deed setting out the covenant

affirmative express easements

give the holder the right to go onto the servient estate for a specific purpose • Ingress/egress aka right of way easement • Traversing upon the land of another person • Express agreement is the instrument to create this • Governed by the statute of frauds • Means it must be a writing • Have to have some kind of agreement between the parties • And language regarding the duration of this agreement • It is express; we intend for this type of easement to be permanent in nature

negative express easements

gives the holder the right to prevent the possessor of the servient estate from doing some act on the servient estate 1. don't block light 2. don't block airflow 3. don't block water channels 4. don't remove lateral support Because these are not an observable use of the servient estate, their nature and scope must be precisely defined in the deed creating them

words of purchase

identify the grantee

merger rule

if a person holding a vested life estate acquires the next vested estate in the same property, the two vested estates merge into one; If two successive vested interests fall into the hands of the same person, those interests will merge, creating a FSA and destroying the contingent remainder. in order to apply, there must be two separate conveyances

reversion

if the grant does not stipulate who takes the property upon the grantee's death, the original grantor (or his estate) takes possession; the grantor is to receive possession back when the life estate ends "O to A for life."

express reservation

if the grantor was to have an easement over the grantee's land, the deed likely would incorporate a clause reserving an easement

Inheritable

if you die without a will, it can be transferred to your heirs; • In common law, "heirs" is used to describe your family members only when you die. If you're alive, you don't have any heirs.

real property

land and the improvements attached to the land (buildings, fences, etc.)

Absolutely Vested Remainder

no way to lose it; "O to A for life, then to B." this is an absolutely vested remainder in FSA

constructive notice

notice that is determined by looking at what is in the chain of title for this parcel; if you searched the chain would you discover the easement agreements? If there's easement agreement in the chain of title, you have constructive notice of it even if you don't go looking at the chain

• Tenant breaches and leaves (abandons the space):

o Accept surrender o Relet on tenant's account o Wait: can let the unit remain vacant until the original tenancy expires

Servitudes

o Agreements regulating land o Can be affirmative and negative

creation of a tenancy

o Created by an agreement (can be oral or in writing) o If in writing, it is used to satisfy the statute of frauds; called a lease o Some jdx recognize oral NFE o If your NFE is less than a year, it can be made orally o IF more than a year, it must be in writing in order to satisfy the statute of frauds o There is a quantified maximum of years in the lease o If there is a long-term lease, the memorandum of that lease must be recorded

action to bar the entail

o Fee tail inhibits marketability of land, so there is a cause of action for this to end called an action to bar the entail. • Eliminating the fee tail through the courts to eliminate it to increase the land's marketability.

eviction

o LL can sue for possession and back rent • This is cumbersome litigation

irrevocable license

o License coupled with interest • Classic example is purchasing a car and coming back to retrieve it. Technically your personal property is on the land of another. o Movie ticket • As long as your purchase the ticket and you don't break any rules, you can use the ticket o Constructive trust • Not a traditional trust; it's a remedy. If one party has been wrongfully deprived of their rights by fraud/mistake/bad faith reason, we use the remedy of constructive trust to right this wrong. • If we don't take care of this problem, that bad actor would be unjustly enriched. This is used to equalize the position of the licensor and licensee. • Remedy to fix a situation so one party won't be unjustly enriched.

easement by estoppel elements

o Licensee permissively enters upon the land of another and invests and improves the land o Did so upon reasonable reliance upon the licensor telling them they could do this and continue to do in the future (dom. owner's reliance must be justifiable) o If this permission was revoked, it would be considered unjust - with these elements met, court conclude that under the facts, the servient estate holder cannot deny the existence of an equitable easement. An easement by estoppel will result when a person uses another's land and a court finds that person will be inconvenienced if stopped.

Tenancy by the Entirety

o Limited only to married couples who own the property as a unit, not by equal shares o 5 unities: • Incorporates the 4 unities from the joint tenancy + • 5. Marriage requirement o Includes the right of survivorship Must have permission from both tenants before alienating

Tenancy in common

o Most common type of concurrent estate o Default estate o Evidenced primarily by the unity of possession

state of mind of the AP: objective

o Most jurisdictions don't care about the objective state of mind of the AP, so all that matters is the state of mind of the RO. o No analysis of their state of mind.

vested remainder defeasible

o O to A for life, then to B as long as black acre is used for a farm. • A = life estate • B = vested remainder in form of FSD • O = possibility of reverter

Joint Tenancy

o Owners will have right of survivorship o Follow the rules that create it expressly; language must be specific o If language is improper, the default will be tenancy in common o Joint tenancy with right of survivable is alienable but NOT inheritable or divisible • If one of the joint owners dies, their interest in the property will automatically go to the survivor - automatic vesting

non-permissive use of property

o Proof that the record owner did not give you permission (no trespassing signs, calling the sheriff, kicking you off property)

Fee simple absolute

o Represents a complete bundle of rights o Largest possible estate you can transfer because you transfer everything; 100% of bundle of rights/no limitations (alienable, inheritable, divisible) • Following a FSA, the grantee has a present estate. The grantor has no future interest because they don't put any limitations on the grant in FSA's. The grantor conveys everything they own to the grantee, retaining nothing for himself. - lasts until the end of time

• Constructively ousted

o The ability of multiple co-owners to use and enjoy the property has become difficult and not sustainable to have multiple co-owners using the property at the same time. o So one is ousted. Mostly in a divorce context o To determine whether or not the co-owner in possession owes compensation to the ousted co-owner, we use concept of fault. o If you have been ousted and it's your own fault, then you are not entitled to compensation o If you have been ousted and it's not through your fault, then you are entitled to compensation.

Leasing • Tenants in Common:

o Their interest is alienable, inheritable and divisible, so yes tenants in common can lease the property to another person. o One co-tenant can lease their interest to another person, they do not share their rent with the other co-tenants unless they agree to it. o You can sever if you sell the interest, but do not sever if you lease it out. o Non-leasing co-tenants are entitled to rent out if all co-owners agrees o Lease will last as long as it's stated in the lease or as long as the joint tenant is alive

• Actual ouster

o Through words or conduct, one co-owner is prevented from using the property by the other. o If one co-owner A actually ousts the other B, A, the ouster, has to pay rent/compensation to B, the person they ousted.

fee tail

o Used to restrict property in the hands of family members, particular the male members of the bloodline. o "O to A and the heirs of A's body." Or o "O to A and his issue." o Fee tail is limited to your lineal relations. Person holding the present estate must be lineal relative. • Members of your bloodline (mother father children) o Collaterals cannot participate in a fee tail (aunts, uncles, cousins). -Generally not inheritable or devisable o Alienable - can sell right possess the land and when you die, it will revert to heirs.

life estate

o the owner owns the property for life; ends at the death of the grantee Type of present estate that has duration, which is the duration of the grantee's life/present estate holder. This present estate will exist as long as the grantee is alive. o Traditionally not inheritable, alienable, or divisible, because when that person's life ends, that present estate automatically terminates. -may be alienable inter vivos: right to possess is transferable during the grantee's life "O to A for life"

vested remainder

one that is owned by an ascertained person or persons (named) and is not subject to a condition precedent; becomes possessory upon the natural termination of the immediately preceding estate -follows any life estate, fee tail, or term of years that ends naturally "O to A for life, then to B and his heirs."

contingent remainder

one where either the owner is unascertained or the right to the current or future possession of the property is subject to a condition precedent -only relevant only with regard to remainders and executory interest (future interests in third parties) "O to A for life, then to B's children" (B is currently childless so B's children have a contingent remainder)

easements in gross

only applies to commercial easements in gross; often need to distinguish between exclusive and nonexclusive easements in gross - Exclusive easements in gross are those where the easement holder has the sole right to use an easement; has the sole power to authorize others to use it; even the servient estate owner cannot allow others to use the easement - People granted nonexclusive easements in gross cannot subdivide or apportion any rights to the easement; the easement holder has the right to use the easement, but the servient estate owner can authorize others to use the easement and the holder of the nonexclusive easement in gross cannot prevent the servient estate owner from granting the right to use an easement to other persons - in effect, the servient estate owner retains the power to decide how many people can use the easement

Grantor

person who owns/possess property at the time of conveyance/grant

servient estate

property burdened by the easement; used to describe the burdened property for both easement appurtenant and easements in gross

mislaid property

property the true owner intentionally placed in a given location and then left, or intentionally left intending to return for it later; belongs to the owner or possessor of the property where it is found unless or until the true owner is located

lost property

property which the owner unintentionally and unknowingly leaves somewhere or accidentally drops; belongs to the finder unless and until the true owner is located

affirmative covenants

require the owner of the burdened estate to perform some act or to pay money (maintain a well or dam)

criminal trespass

requires intent, or knowledge that you're trespassing and you do it anyway. notice component: The trespasser has to have actual, constructive, or inquiry-based notice of trespassing.

negative covenants

restrict or prohibit the uses that can be made of he burdened property

fee tail future interest

reversion and remainder o If grantor wants to retain a future interest, it is called a reversion. The grantor would not have to do anything else, it's automatic. o If grantor is dead, the grantor's estate would get the property back o If the grantor wants someone else to get the future interest, that is a remainder. • "O to A and his issue, then to B."

life estate future interests

reversion or remainder

rule of first-in-time, first-in-right

rule establishing a priority of rights based on the time of acquiring the right in question; all other things being equal, the chronologically first possessor has the better title.

easements appurtenant

run with the land: whoever possesses the dominant estate has the right to use the easement over the servient estate. A person conveying the dominant estate loses her easement rights to the person to whom it is conveyed, and the servient estate remains burdened with the easement no matter who owns the servient estate; *implicitly assigned with the dominant estate, whether or not the deed mentions it

Fee Simple Subject to Condition Subsequent

same as fee simple determinable except the grantor must assert his right of re-entry or right of termination; until the grantor elects to take back the property, the grantee continues to own the property "O to A; provided, however if A sells alcohol on the property, then O may re-enter and retake the land."

Doctrine of Worthier Title

states that when there is conveyance or devise to a person, with a remainder or executory interest to the grantor's heirs or next of kin (but no to the heirs of the grantor's body), no future interest is created in the grantor's heirs; rather, the grantor retains a reversion applies to conveyances to the grantor's heirs; this doctrine changes ownership from "O's heirs" to "O" in grants such as "O to A for life, then to O's heirs" - rule of construction to ascertain the grantor's intent; mainly applied to inter vivos transactions (transfers, deeds)

tacking

the AP may sell or give his interest to another person. The purchaser or donee succeeds to the AP's attributes, including the time the first AP occupied the property. This adding of time the first AP used the property to the time the second possessor used the property is called tacking

open and notorious

the AP's use of the property is so visible and apparent that it gives notice to the true owner if he checked his land that someone may be asserting an adverse claim to the land

privity of estate

the benefited party must prove there was privity of estate before a real covenant will bind the subsequent owners of the burdened property; two separate privities must exist before a court will find the privity of estate: horizontal and vertical

possibility of reverter

the chance that the property might return to the grantor if the condition subsequent happened; no extra language necessary - possibility of reverter is implied

necessity

the degree of necessity will be less for an implied grant because the grantee of the dominant estate can be excused for not knowing the location of a use on the adjoining parcel; the common owner who tries to reserve an implied easement is no so easily excused since he had greater knowledge, plus executed the deed transferring the property without reserving any easement

assignability of easements

the easement can be golf, gifted, devised, inherited, or otherwise conveyed

divisibility of easements

the easement holder attempts to share the easement with others or to assign, divide, or apportion the easement to multiple grantees; the issue is whether an easement holder can divide or apportion an easement among several grantees

Scope

the extent of use an easement holder may make of the servient estate; an easement holder's use cannot exceed its scope; the general rule is that the holder may make such use of the easement reasonably necessary for the enjoyment of the dominant estate and not unreasonably burdensome to the servient estate

life estate proceeds

the grantee keeps all the income, rents, and profits from the use of the land during the life estate

easements appurtenant

the holder, by subdividing and selling parcels of the dominant estate, transfers the easement with each parcel; each resulting parcel becomes a dominant estate and the owner enjoys the easement over the servient estate so long as the several dominant estate owners do not overburden the servient estate

dominant estate

the land benefited by the easement; only used when discussing easement appurtenant; an easement in gross has no dominant estate because it benefits a specific person and not the owner of a particular property *once the dominant estate has been identified in the easement deed, it has been identified for all time; cannot be enlarged thereafter. So must identify with precision

horizontal privity

the necessary relationship between the original parties to the agreement for the covenant to run with the land; measured at the time of the original agreement that created the covenant - not necessary for its enforcement between the original parties: no privity of estate is needed since the original parties are bound and benefited by the privity of contract - either instantaneous or mutual

statute of limitations period

the number of years an adverse possessor must use the property in order to acquire title; after the requisite number of years pass, the adverse possessor obtains an original title to the property, aka not derived from the former owner's title this begins only from the time the particular part of the land being claimed is actually used, not from when any part of the parcel is being used

adverse possesion

the occupation of land to which another person has title with the intention of possessing it as one's own; person may have entered as a trespasser, but use the property for enough years and becomes the owner of the property and defeats all rights of the true of rightful owner, even if they had legal or record title

benefited estate

the property whose owner benefits from a covenant or servitude in any controversy

burdened estate

the property whose owner is bound by a covenant to act or not act

vertical privity

the relationship between an original promisee or promisor to the contract and those subsequent owners tracing their interests in the benefited or burdened property back to either of them; requires that a transferee take substantially the same estate as the transferor (sales, fits, devises, inheritances of real estate, but not in leases) - denotes the relationship between an original party to the covenant and his successors in interest ; the only requirement is that the subsequent, remote property owner succeed to an original party's entire estate or ownership interest in the property, either directly from an original party or through persons on the same chain of title, tracing their interests back to an original party to the covenant

privity

the relationship necessary to allow tacking; occurs in the contract of sale, gift, will, or other inheritance (intestate succession)

alienability

the right to dispose of land during lifetime

profit

the right to enter another's land, without liability for trespass, and remove minerals, timber, or other natural resources constituting a natural part of the land; a person with a profits interest has an easement to venture onto the property as necessary to enjoy the profits interest

devisability

the right to transfer or dispose of property by will after death

easement

the right to use another's land for a specific purpose; a deed must be used to create an easement

notice requirement

the successor owner of the burdened property have actual, constructive, or inquiry notice of the covenant; applies only to the burdens, not the benefits

implied easements from prior use

these arise when a use was in place at a time a single parcel of land was severed or divided into two adjoining parcels, leaving one parcel benefiting the other in some way, even thought he seller and buyer did not discuss or even think of it when they bought and sold the land; this type of implied easement remedies this oversight and permits courts to reach results reasonable parties would have reached had they discussed the matter, emphasizing the parties' likely intent at the time of severance (not at the time of trial) Elements: 1. the unity of ownership is severed; 2. the use was in place before the severance 3. the use was visible or apparent at the time of the severance (uses or conditions discoverable by a reasonable inspection) 4. the easement is necessary for the enjoyment of the dominant estate

inquiry notice

through visible obvious inspection you discover information that should encourage to conduct a further inquiry to determine whether or not an easement exists

express grant

usually are created by deed; the grantor often sells only part of property and grants the purchaser an easement over the seller's retained land. Then the grantee owns the dominant estate and the grantor retains the servient estate

precatory language

usually interpreted as something the testator would like to occur but is not enforceable

the rule in shelley's case

when a devise or conveyance tranfers a freehold estate to a person and in the same instrument also tranfers a remainder to that same person's heirs or the heirs of his body, and either both estates are legal or both are equitable, both are considered to be held by the first named freeholder, either for life, in FSA, or in fee tail; and the person's heirs get nothing under the grant. 3 requirements: 1. a freehold estate (usually a life estate) given to a first transferee 2. a remainder limited to the heirs of the first transferee in the same instrument and 3. a freehold and a remainder of the same quality (either both being legal or both being equitable in nature)

tenant

• Person who has non-freehold estate • Right to possess but no ownership interest

license

when a landowner permits another person to use his property, but the permission is revocable or terminable at the landowner's will, the user has a license; a license needs no writing or consideration, can be implied, and so long as the user stays within its terms, the license gives its user immunity from a suit in trespass; an express easement that fails for some technical reason becomes a license

color of title

when a person claims ownership pursuant to a written document, usually a deed, purporting to transfer the property to him, but the document is defective in some manner this does not convey legal title to the purchaser, but it does clothe the purchaser with color of title

Life Estate Pur Autre Vie

when a person's interest in a life estate is measured by the life of a third person. owner of life estate pur autre vie may transfer or assign the LE to another party during his life -devisable and inheritable Ex: "O to A for the duration of B's life."

instantaneous horizontal privity

when the original promisor and promisee transferred a property interest of some type; in a grantor-grantee relationship in a deed transferring the fee simple or a landlord and tenant in a lease; exists only in the nanosecond of delivery

simultaneous death of joint tenants

when two joint tenants die simultaneously, most courts treat half the property as if one tenant survived and the other half as if the other tenant survived - effectively treating the property as a tenancy in common, giving the heirs of each tenant an equal share

o Traditional Creation of FSA

• "Grantor conveys land to grantee and his heirs." or "grantor conveys land to grantee in fee simple absolute" * •In creating a FSA, the grantor has conveyed everything they own to the grantee. The language "and his heirs" doesn't have any meaning in this regard. • Doesn't mean you give the heirs any interest, so we don't use this language anymore.

modern ways to create FSA

• "Grantor conveys land to grantee." (no "heirs" language) • "Grantee conveys land to grantee in FSA." "O to A."

spectrum of rights

• 1. The owner has the largest bundle of rights: FSA • 2. Tenant has the right to possession only • 3. Licensee (person using the property because they have a license to do so) more limited bundle of rights than tenant o Revocable at will of the owner o There to perform a specific task/purpose; so when that is completed, the license is extinguished • 4. Trespasser o Someone who is possessing wrongfully and never had lawful possession o But over a passage of time, that trespasser can become an owner through adverse possession • 5. Thief o Criminal penalties o Absolutely no rights

consent

• A complete defense against trespass for the true owner. If consent is given, this is considered a license, and does not contribute to the time period necessary to acquire adverse possession. • The rebuttal to this is fraud

Negative servitude

• A non owner is restricting the way the owner can use his property

action to quiet title

• Action for declaratory judgment able to be raised by either record owner or adverse possessor and that person (plaintiff) is asking court to make determination as to the ownership of the property. They want to be recognized as the owner.

Tenancy: term of years

• Agreement for a specified period of time; leasing for a specified period of time and at the end of that period, the lease will automatically terminate. • The parties can renew, but typically, the parties intent for it to be terminated • Tradition term of years has both the landlord (who is also the owner in FSA and the lessor) and the tenant (the lessee) • The tenant has the present estate; the landlord has the future interest (reversion)

tenancy at will

• Agreement to create a tenancy without a specified period of time • Terminates upon 30 days notice • Terminates at the death of the tenant

• Unity of Title

• All co-owners must acquire their interest in the property using the same instrument (will, deed, or some type of trust instrument)

• Unity of Interest

• All of the interests of the co-owners must have equal proportionate shares • Each share must be equal

Affirmative servitude

• An agreement to let one non-owner enter onto the land of another person

strike rule #1

• At the time of the grant, I am going to make a determination as to whether or not your conveyance violates the RAP. If it does at the time of the grant, you must fix it. You start at the end of the conveyance and work backwards striking language until you find a conveyance that is valid. Strike the offending language • Durational • "O to A as long as black acre is used for farming, then to B." o Start at end, and strike back until you recognize something that is valid. When underlying conveyance uses words of duration (as long as, during, until) you strike the offending language (shifting executory interest). You are then left with something that is valid: a fee simple determinable. o A has a FSD; O has possibility of reverter

Marketability

• Because we allow one person to dictate who can own property and how it will be controlled, it will put limitations on the property and will affect its marketability • If I transfer property to you, and put a limitation on that property, it will impact your ability to sell that property.

o Holdover and renew

• Can treat tenant as holdover tenant • If the parties reach an agreement to continue the tenancy, you have a renewal • Can be based upon an agreement or the acceptance of more rent • If the tenancy has terminated or expired, but the LL has continued to receive rent, you have created a month-to-month tenancy. A tenancy without a lease agreement • If the LL wants eviction, he will have to refuse the rent

cy pres doctrine

• Concept is an equitable principle. This allows for the re-drafting of the conveyance by the court to make it valid. Rewriting the conveyance until it becomes valid. Primarily used for age limits. • Usually age limit can be reduced to 21 years old to make the conveyance valid.

testate

• Dying with a will in place

intestate

• Dying without a will

o Unity of possession

• Every co-owner not with standing their proportionate share of ownership of the parcel has an undivided right to possess the entire parcel and to share equally in the rents and appreciation in value (normally they divide the rents/appreciation in accordance with percentage of ownership though) • Do not need equal proportionate share allocation of the ownership interest - multiple owners can own different proportionate shares in the particular parcel • All owners have right to use and possess the entire parcel • Every owner who owns and possesses this property as tenants in common have an interest that is separately inheritable, alienable, and divisible

• Unity of Possession

• Everyone has an undivided interest in the property • They can all use the property equally

freehold estates

• Evidenced by ownership interest • Focusing on grantor as being the owner • As an owner, you basically have 100% of the strands of your bundle of rights • All present estates (current, immediate transfers of real property) are freehold

Periodic tenancy

• Has no ending date. the tenant possesses the leased premises for an indefinite term, paying scheduled periodic rent to the landlord. thus, a periodic tenancy is one that continues or runs from day to day , week to week, etc. "Month to month tenancy" • Agreement for a specific term that the parties agree to and at the end of the term, it will automatically renew unless the parties terminate it by agreement • an express notice is required to terminate the prioidc tenancy • If you have a term of years, and at the end of the term the tenant continues to pay rent, this creates a periodic tenancy

unascertained persons

• Heirs: If future interest is given to heirs and the grantee is still alive, the person has no heirs. • Unborn: If future interest is given to unborn at time of grant. • Widow: If future interest is given to a widow.

o Rules of severance

• How to sever a joint tenancy with right of survivorship • Concept called alienation • If one of the tenants alienates their interest; the selling of their interest to another party will destroy their right of survivorship between the tenants • • A B C D are joint tenants • If B transfers to E, the joint tenancy is severed, but A, C, and D remain joint tenants • When one of co-tenants alienates interest, they severed the joint tenancy between all four of them; the remaining tenants A C and D remain joint tenants with right of survivorship • E is a tenant in common with the group; but A C and D joint tenants remain as such

fraud

• If consent is obtained through fraud, the person is a trespasser. • Exception: if someone is conducting testing/investigation on the property. Even if consent was obtained through fraud, if the fraud was beneficial to the public, then it's permissible. This is because it promotes public policy.

strike rule #2

• If conveyance violates RAP and the underlying conveyance uses words of condition, you strike not only the SEI but keep striking until you see something you recognize, which will be all the way back to the FSA. • "O to C provided that black acre is not used for commercial purposes, if so, then to D." o Then to D is a shifting executory interest, and violates the rule against perp. o Start at the end; strike the offending language until you find something you recognize as valid. Strike the language: "then to D." but the rest is still not valid. Continue striking until "O to C." o C has a FSA

current transfer: present estate

• Immediate transfer from an owner to an immediate possessor - present estate holder can take possession and use the property currently

o Relet on tenant's account

• LL can lease the unit to another tenant and put the money on the tenant's account

Self help

• LL enters the premises and removes the tenant's possessions and puts them on the street • Unfavorable • May subject the LL to litigation

words of limitation

• Language following the grantee describes the type of interest that person has • This identifies limitations the grantor is putting on the grantee • Identifies the type of estate the grantor transfers to the grantee. • In FSA's, words of limitation are irrelevant because there are no limitations. It's just a traditional way of creating the FSA.

devise

• Leaving or transferring property to another person using a will • Relates to land, not an item of personal property

Accept surrender

• Let the tenant go, and relet the property • Rare • Usually, LL will want back rent

Dead hand control

• Letting someone who has long since died to control how property is used, possessed, or who owns the property.

commercial tenancy

• Longer in term • Protected by lawyers • Pay rent • Transferring a place where commerce will be conducted • Society does not protect commercial tenants • No unequal bargaining power • Assume equal bargaining power because of the presence of the lawyers • Also assume that you intended to agree to whatever you agreed to

term of years defeasibility

• Modern perspective o The contract is defeasible; there are a number of conditions for which the tenant can be evicted • Traditional perspective • The estate was not defeasible; the landlord intended to receive the rental money from the property and there was no expectation of any interaction between the two

o Eviction

• More than just removing a tenant during the tenancy for failure to pay rent or some other term of the lease • If you refuse to renew the tenant's lease, this is also an eviction • LL's are entitled to pursue an eviction action • Based on common law and there may be statutes governing eviction - usually called anti-eviction statutes

contingent remainder example

• O to A for life (LE), then to B when B reaches 21. (FI condition) o At the time of the grant, A has a life estate. o B has a future interest called a contingent remainder. o We don't know at the time of the grant if B will reach 21. Because there's a possibility B won't reach 21, the grantor has a reversion.

adverse or hostile possession

• Permission given by the record owner is a complete and total defense to the claim of adverse possession. The period of adverse use begins when the use becomes non-permissive. Starting point for analysis is non-permissive use.

Fee Simple Subject to Executory Limitation

• Prior to 1536, this type of present estate was void. It was not recognized. • After 1536, it was made valid. Same language from FSD or FSSCS, except the future interest goes to a third party future interest: executory interest

• Proof

• Proof is the same regardless of traditional or modern • Proof that unit has become uninhabitable or untenable • Uninhabitable o Unit is not fit for habitation o Warranty of habitation has been breached • Untenable o Ability to use and enjoy the unit in an undisturbed manner has been breached o Covenant of quiet enjoyment has been breached o Quiet: undisturbed use and enjoyment • Can raise uninhabitable and untenable as separate defenses without constructive evictions (freestanding defenses) or you can assert the defense of constructive eviction o If you raise CE, you have to proof this by uninhabitable or untenable conditions

Concentration

• Property will be concentrated within the hands of a few people or a few types of people/families

o Summary process

• Quick way of evicting people • Aka forcible entry and detainer • Basically a quick eviction • LL asserts his reversion and once the tenant is removed, he can recover his back rent

collaterals

• Relatives like aunts, uncles and cousins

General charitable intent

• Settler just wanted to do something charitable. If the first option didn't' work out, the settler would have wanted to help some other charity. • The trust would continue and would not be distributed. • If settler has a general charitable intent and you want the trust to continue, and there is a problem, you can use the cy pres doctrine to reform the trust.

condition precedent

• The conveyance is conditioned upon an event that is not certain to happen. The condition must occur (or fail to occur) before the before an interest becomes vested or possessory. "O to A for life, then to B if B becomes a lawyer before A dies." -the requirement that B become a lawyer before A dies is the condition precedent; it must occur before B's contingent remainder becomes a vested remainder.

right of access

• The right of access depends upon where you are. The minority rule is that as a member of the public you have the right to access places of public accommodation. Owners cannot unreasonably exclude you from those places. • Majority rule is no, you don't have a right to places of public accommodation. Owners can exclude you for any reason except discriminatory ones. *• Except innkeepers and common carriers. They cannot unreasonably exclude for public policy reasons. We don't want the carriers to impede our ability to move around and as a necessity via travel and places to stay.

Particularized charitable intent

• The settler created the trust for the sole purpose of benefiting the particular charity mentioned in the trust • In the event that that particular gift to that charity becomes impossible or impractical, we assume the settler would want the trust to fail and would want the proceeds of the trust distributed back to their estate.

Constructive eviction

• The tenant asserts as a defense that the LL constructively evicted them; tenant did not leave the space, but the conditions of the space became so horrible that it was as if he was evicted

Privity of contract

• The two adverse possessors were connected with some type of written instrument/contract. (Ex: Color of title; mistake in title is passed on through contract)

Retaliatory eviction

• There is an actual eviction but if the eviction occurs within 6 months of certain conduct initiated by the tenant, this raises a presumption that the eviction was retaliatory. o Ex. Complaining about the violation of the building code (may piss of the LL and he evict you because of it) • The presumption the LL was acting out of retaliation is a rebuttable one. This must be fact based. o Ex. Could provide proof that it was for other reasons

4. Restraints on alienation

• This is considered "repugnant to the fee" • This means that if the grantor imposes a condition on the present estate holder, that prohibits the PE holder from transferring title to the land or restricts the PE holder from transferring to certain people, this is a restraint on alienation and is repugnant to the fee. i. FSA by definition gives you 100% of bundle of rights, so restraints on alienation infringes on your ability to alienate the property. • However, we do allow restraints on alienation of a life estate. This is not repugnant to the fee.

Holdover Tenant/Tenant at Sufferance

• This person was rightfully in possession of the property at some point, but that rightful possession terminated and now they remain in possession but the possession is wrongful because their lawful tenancy terminated - the landlord can evict or eject eh tenant as a trespasser and recover damages or extend the lease for a new term

bequest

• To dispose of a item using a will • Relates to an item of personal property, not land

application of constructive eviction

• Traditional o You could not raise this as a defense as a tenant unless you moved out of the space within a reasonable period of time after the problem/bad condition arose. o Not favored because it presumes you have somewhere else to go o May not be able to afford to move • Modern o Partial constructive eviction: • Percentage of unit is problematic • Some part of your unit is problematic • You can raise the eviction action but don't have to move out • Can remain in unit and can still raise this as a defense (either partial or whole) • Modified remedies • The remedy is a rent abatement, your rent would be reduced by the percentage of the unit you can no longer use.

Tenant's defenses to eviction

• Traditionally, the land lords were in control • Independence between your unit and obligation to pay rent; regardless of condition of your unit, your rent was due • Consistent with traditional notions of transfers of real property • Modern: • Covenants in the lease and rent are now dependent on one another • If LL fails to comply with LL's obligations (obligation to maintain), the tenant is relieved of the obligation to pay rent.

Convey

• Transfer/alienate the property

continuity

• Uninterrupted use for the statutory period of time in the ways the true owner would use the land under the circumstances • Have a starting point - the point where your use was not permissive. Need to demonstrate whether use was permissive or not. *If an AP leaves the property with the intent to return and returns to find a new AP on the property, the returning possessor can eject the 2nd AP and continue the running of the statute

exclusive possession

• Using the property in a manner that is not shared with the record owner. A manner that indicates private use of the property that is not shared with general public or record owner. Analogous to record owner using right to exclude. • Doesn't mean you can't have guests on your property. Means you don't share property with anyone.

residential tenancy

• Usually shorter in term • Protection statutes because treated as a product • Exchanging a dwelling place; place for habitation • Assume contract is one of adhesion aka it's not negotiated with lawyers *unequal bargaining power

1. Presumption against Forfeiture

• We want the holder of the property/present estate to keep it, so we try to interpret our conveyances in a way that allows the present estate holder to retain title to the property. i. If there is an option between the creation of a conveyance with a future interest versus a conveyance with precatory language, we would favor the conveyance that has the precatory language. 1. This is because the precatory language is not defeasing language. This does not allow the holder of the estate to lose it. ii. If there is a future interest vs. covenant (promise to do not refrain from doing something), we interpret language whenever possible as only creating a promise/covenant. 1. A promise may be enforced through the imposition of an injunction or money damages, but this is not defeasible. You cannot lose the property

escheat

• When you have property that's not really owned by anyone, the property will be owned by the state