Property

Measuring life is grantee

"to B for life." Typically not defeasible nor descendible.

Measuring life is a third party

"to B for the life of C."

Termination or non-enforcement of equitable servitude

(1) Expiration (2) Change in the character of the neighborhood (3) Abandonment or acquiescence (4) Laches or estoppel (5) Release (6) Merger

Requirements for an Equitable Servitude

(1) Writing (SoF) (2) Notice (Actual, Inquiry, Constructive) (3) Grantor's Intent that the burden or benefit "run with the land (4) "Touch and Concern" the land Does not require horizontal privity ever, usually doesn't require vertical privity

How do you enforce a promise as an equitable servitude?

(1) the original promisor and promisee must intend to bind or benefit their respective successors in interest; (2) the promise must "touch and concern" the land; and (3) remote parties must have notice of the promise in order to be bound by it. Horizontal privity of estate is not required for an equitable servitude to run with the land, nor is vertical privity of estate required for the burden to run.

Three types of Deeds

1. General Warranty Deed 2. Special Warranty Deed 3. Quitclaim Deed

The three types of concurrent estates

1. tenancy in common 2. joint tenancy 3. tenancy by the entirety

Easement implied from Prior Use

1.) Common owner owns lots originally 2.) Quasi-easement -treated like an easement even though it isn't -one part treated like dominant tenement and other like servient tenement 3.) Subsequent division into 2 or more parcels 4.) Reasonable Necessity

Three Types of Present Warranties of Title

1.) Covenant of Seisin 2.) Covenant of right to convey 3.) Covenant against encumbrances

Three forms of delivery of tangible personal property

1.) Manual 2.) Constructive 3.) Symbolic

Notice of an easement based on prior use

1.) Not by instrument (deed/contract of sale) 2.) Must be visible in some way or capable of giving notice that it is there 3.) Form of implied consent: person buying knows other party needs

Future Warranties of Title

1.) The covenant of general warranty 2.) The covenant of quiet enjoyment 3.) The covenant of future assurances

Three Types of Leases

1.) a term of years 2.) a periodic tenancy 3.) a tenancy at will

4 types of negative easements traditionally recognized by English courts

1.) access to light 2.) access to airflow 3.) lateral and subjacent support 4.) maintenance of existing flowage in a canal or other artificial

Additional negative easements recognized in the United States

1.) solar easements 2.) scenic easements; 3.) conservation easements

Restatement of Property Factors for implied easement based on prior use

1.) whether the claimant is the grantor or grantee 2.) the terms of the conveyance 3.) the consideration paid by the grantee 4.) whether the claim is made against a simultaneous transferee 5.) necessity 6.) whether reciprocal benefits result to the grantor and grantee 7.) the manner in which the land was used prior to the conveyance

Easements can be created by grant independently from the sale of land.

A and B are adjacent landowners. B wants to purchase a right of way across A's land in order to reach a road. A agrees to B's request and grants B an express affirmative easement appurtenant.

A sells a portion of property to B and both parties agree in the deed to restrict their respective pieces of land to agricultural use. The provision also purports to bind the heirs and assigns of the parties. B subsequently sells his property to C. A seeks to enforce the restriction on C when C starts to develop his property as a trailer park.

A can enforce the restriction against C because there was vertical privity of estate between B and C.

Statute of Frauds

A contract for the sale of land must be in writing and must be signed by the party against whom enforcement is sought. Ordinarily, contracts for the sale of land are signed by both parties. The contract must also: 1.) Describe the property 2.) state the selling price 3.)Set a date for transfer

Example of fee simple subject to condition subsequent

A conveys Blackacre "to B and his heirs, but if B gets married, then A can reenter Blackacre." B retains ownership until A exercises his right to reenter.

Restrictive Covenant

A covenant which requires the promisor, or successor in interest, to refrain from doing something on the land. Ex: A sells a portion of his land to B and also promises in the deed to refrain from allowing a fast food restaurant to be constructed on his property.

First and Subsequent Mortgages

A debtor may obtain more than one mortgage on a particular piece of property. The mortgage that is obtained first is known as a first mortgage and is senior to any subsequent mortgages. If the debtor defaults on a second mortgage, the second mortgagee can foreclose onthe mortgaged property but must pay off the first mortgage before receiving any of the proceeds of the foreclosure sale.

General Warranty Deed

A deed that contains three present and three future warranties of title. The grantor warrants against any failure of title arising from acts committed by himself or his predecessors in title prior to the conveyance.

Quitclaim Deed

A deed which contains no warranties of title and merely purports to convey whatever interest, if any, the grantor might have in the property

Special Warranty Deed

A deed which warrants acts committed by the grantor, but not against acts committed by the grantor's predecessors in title.

Subsequent Possession

A derivative form of title which is acquired from a previous owner. Methods of acquisition include purchase, devise, intestate succession, find, adverse possession and inter vivos gratuitous transfers.

Fee Tail

A freehold estate that limits the estate to the Grantee's lineal blood line by specific words of limitation ("heirs of her body") Eliminated in most states; treated as a fee simple absolute.

Remainder

A future interest created in a grantee that can become possessory upon the expiration of a prior possessory estate of known fixed duration that is created in the same conveyance in which the remainder is created. -Can either be vested or conntigent -If a survivorship contingency is stated in a conveyance, the majority view is that the contigency applies at the termination of the enterest that precedes distribution of the reaminder. -Minority approach interprets a survivorship contingency to require surviving only the testator and not the life tenant

Right of Reentry

A future interest held by the grantor after a fee simple on condition subsequent is granted

Executory interest

A future interest that fully or partially cuts off or divests a present possessory estate or a vested remainder. The interest is transferable and not subject to the Rule against perpetuities

Class interest

A group of unspecified persons whose number and identity and share of the interest are determined in the future (usually, the group is of children." Ex: A conveys a gift "to my children." A here conveys a class gift to an unspecified group because the recipients are not known until A dies

O conveys Blackacre "to A and his heirs, but if B marries C, then to B and her heirs."

A has a possessory fee simple subject to executory limitation. B has a shifting executory interest. If B marries C, A's fee simple will be divested and he will have nothing. B will have a possessory fee simple absolute. O has no interest once he conveys Blackacre to A.

O conveys Blackacre "to A for life, then to B & her heirs if B survives A, and B does not survive A, then to C & his heirs."

A has a possessory life estate B has an alternative contingent remainder. C has an alternative contingent remainder. O has a reversion. If A dies before B, B's contingent remainder will vest and C's will fail. B will have a possessory fee simple absolute and O's reversion will also fail. On the other hand, if B dies before A, B's contingent remainder will fail and C's contingent remainder will become an indefeasibly vested remainder. O's reversion will terminate at this time as well. At A's death, C will have a possessory fee simple absolute. Note that O has a reversion. This is because at common law, both contingent remainders could fail if the supporting life estate terminated through forfeiture before the death of the life tenant.

O conveys Blackacre "to A for life, then to A's children and their heirs." A has no children at the time of conveyance.

A has a possessory life estate The unborn children of A have a contingent remainder O has a reversion. Blackacre will revert to O if A dies without issue

O conveys Blackacre "to A for life; remainder to B and her heirs."

A has a possessory life estate and B has a vested remainder in fee simple. If A transfers his life estate to B or if B transfers her vested remainder to A, the two interests merge and the transferee has a possessory fee simple absolute.

O conveys Blackacre "to A for life, then to A's children for life, then to A's grandchildren & their heirs."

A has a possessory life estate. A's children have vested remainders for life. This is a class gift; however, it satisfies the Rule Against Perpetuities because the class will close at A's death. A's grandchildren have a vested remainder subject to open. However, their interest does not satisfy the Rule. A cannot serve as the validating life because the class will not close until all of A's children die and this may occur more than 21 years after A's death. In order for A's children to serve as the validating lives, all of them must be in existence at the time the grandchildren's interest is created. This requirement is not satisfied since A may have additional children. Finally because the class of A's grandchildren has not yet closed, they cannot serve as validating lives either.

O conveys Blackacre "to A for life, then to B & his heirs if B survives A."

A has a possessory life estate. B has a contingent remainder. The remainder is contingent because it is subject to a condition precedent. B must survive A. O has a reversion. B's remainder fails if B dies before A. On the other hand, if A dies before B, B will have a possessory fee simple absolute at that time. O's reversion will also terminate at that time.

O conveys Blackacre "to A for life, then to A's children." A has one child, B, at the time of the conveyance.

A has a possessory life estate. B has a vested remainder subject to open. B's remainder satisfies the Rule Against Perpetuities because the class (A's children) will close at A's death. A serves as the validating life.

O conveys Blackacre "to A for life, then to any child of A who reaches the age of 25." A has one child, B, who is 25 at the time of the conveyance and another child, C, who is 15 years old.

A has a possessory life estate. B has a vested remainder subject to open. C has an executory interest. Both B's and C's interests violate the Rule Against Perpetuities. It is a class gift to A's children. However, the interests of the class will not vest until the youngest child of A reaches the age of 25. A cannot serve as the validating life because the last child may reach the age of 25 more than 21 years after A's death. Neither B nor C can serve as validating lives because A may have additional children and one or more of them may reach the age 25 more than 21 years after B and C's deaths.

O conveys Blackacre "to A for life, then to the heirs of B." Assume that B is alive at the time of the conveyance.

A has a possessory life estate. The heirs of B have a contingent remainder because they cannot be ascertained until B dies. O has a reversion. When B dies, the heirs will be ascertained. Assuming that A is still alive, the heirs of B will then have an indefeasibly vested remainder

O conveys Blackacre "to A for life, then to B & his heirs, but if B dies before reaching the age of 21, then to C & her heirs." Assume B is 15 at the time of conveyance

A has a possessory life estate. B has a vested remainder subject to complete defeasance. C has a shifting executory interest. O has no interest at all. If B dies before reaching the age of 21, his interest will fail and C will have an indefeasibly vested remainder in fee simple, which will become a possessory fee simple absolute at A's death.

O conveys Blackacre "to A for life, then to A's first child to reach 21." Assume that A has children, but no child has reached the age of 21 at the time of the conveyance

A has a possessory life estate. This is a vested interest and, therefore, is not subject to the Rule Against Perpetuities. The contingent remainder in A's children satisfies the Rule Against Perpetuities because any child of A who satisfies the condition precedent will necessarily do so within 21 years of A's death. The interest would be good even if A had no children at the time of the conveyance because no child would reach the age of 21 more than 21 years after A's death. Notice that the interest of A's children is a contingent remainder because it is subject to a condition precedent (reaching the age of 21). When the first child of A reaches the age of 21, assuming that A is still alive, he/she will have an indefeasibly vested remainder and the contingent remainders of A's other children will fail.

Mortgages

A mortgage is a consensual lien placed on real property to secure a debt. The debtor also signs a promissory note for the amount of the debt. If the debtor defaults on the loan, the creditor may sell the mortgaged property in order to pay off the loan. In addition, the debtor may be personally liable on the promissory note for any deficiency if the proceeds of the sale of the mortgaged property are not sufficient to pay off the loan. The debtor is known as the mortgagor and the creditor is known as the mortgagee.

Life Estate

A possessory interest in real property measured by the life of the person who has the life interest (grantee). The language must be clear, and the duration must be measured in terms of a life, not a number of years. Upon the end of the measuring life, title reverts to the grantor or specified remaindermen. Present interest is fully transferable during the life of the person by whom the life is measured. The future interest created is known as a reversion

Fee Simple Subject to Condition Subsequent

A present fee simple that is limited in duration by specific condition language Ex: "provided that," "on condition that," "but if." It is an inheritable possessory estate in which the grantor retains a reversionary interest known as a right of entry

Unascertained remaindermen

A remainder is also contingent if the remaindermen cannot be identified. Ex: O conveys Blackacre "to A for life, then to the heirs of B." Assume that B is alive at the time of the conveyance.

Remainder that is Subject to a Condition Precedent

A remainder is also contingent when it is subject to a condition precedent Ex: O conveys Blackacre "to A for life, then to B & his heirs if B survives A." It is possible to have alternate contingent remainders. This occurs when two contingent remainders are subject to opposing or inconsistent conditions. Ex: O conveys Blackacre "to A for life, then to B & her heirs if B survives A, and B does not survive A, then to C & his heirs."

Unborn remaindermen

A remainder is contingent when all of the remaindermen are unborn. Example: O conveys Blackacre "to A for life, then to A's children and their heirs." A has no children at the time of conveyance.

Contingent Remainder

A remainder may be contingent because: (1) all of the remaindermen are unborn; (2) the remaindermen cannot be ascertained; or (3) the remainder is subject to a condition precedent. Ex: A conveys "to B for life, remainder to C's heirs." If C is alive at the conveyance, C's hears are not yet ascertainable

Doctrine of Worthier Title

A rule of construction similar to the rule in Shelley's case (except that it prevents against remainders in the grantor's heirs) and still applies in some states. The presumption is in a reversion to the grantor.

C could enforce the agreement against B because there is vertical privity of estate between A and C.

A sells a portion of property to B and both parties agree in the deed to restrict their respective pieces of land to agricultural use. The provision also purports to bind the heirs and assigns of the parties. A subsequently sells his property to C. B then begins to construct a trailer park on his property.

Servitudes

A subcategory of incorporeal hereditaments, a species of rights that descend in the same manner as real property. In the United States, servitudes are non-possessory interests in land which include: (1) easements (2) profits a prendre (3) real covenants (4) equitable servitudes

Abandonment

A tenant can offer to surrender the lease prior to the end of its term. If the landlord accepts the proffered surrender, the lease will terminate and the tenant will no longer be liable for future rent. However, at common law, if a tenant abandoned the property before the end of the lease term, the landlord was under no obligation to find another tenant. Instead, the landlord could allow the property to remain vacant and sue the tenant for accrued rent at the end of the lease term. Most courts now require landlords to exercise due diligence to find a new tenant in order to mitigate the damages that would otherwise be owed by the original tenant

Indefeasibly Vested Remainder

A vested remainder that is certain to become possessory once the preceding possessory estate (or estates) terminates. Ex: O conveys Blackacre "to A for life, then to B & her heirs." B does not have to survive A in order to acquire Blackacre. If B predeceases A, B's heirs or devisees will take in B's stead. O has retained no interest in Blackacre.

Relative Title

A's right or title to a piece of property may be better than B's, a subsequent finder, but not as good as O's, the true owner. Ex: O, the owner of a valuable watch, loses it. The watch is found by A. A then loses the watch at it is subsequently found by B. Because A's title is relatively better than B's, A can recover the watch from B. However, O's title is better than either A or B. Therefore, O can recover the watch from either of them.

A and B own adjacent tracts of land. A grants B a right of way to construct a dirt road across his property to enable B to reach a public highway. Fifty years later, B's successor in interest, C, has built a 100-lot subdivision on his property. C now wants to replace the dirt road with paved road for the residents of the subdivision to use.

A, or his successor in interest, could argue that C's expansion of the easement is unreasonable and should not be permitted.

Rule Against Perpetuities

AKA the "what might happen" approach. A contingent interest, such as a contingent remainder, a vested remainder subject to open, or an executory interest, must be logically certain at the time of its creation to either vest or fail to vest within a maximum period of 21 years after the death of an ascertainable person who is alive at the time the interest is created. Ex: O conveys Blackacre "to A for life, then to A's first child to reach 21."

Fee Simple Absolute

Absolute ownership of potentially infinite duration Ex: A conveys Blackacre "to B and his heirs" Ex: C conveys Whiteacre "to B."

Scope of Easements

According to the traditional rule, neither party could unilaterally change the location of an affirmative easement appurtenant. Furthermore, the owner of the dominant tenement could not change the nature of the use of the easement, unreasonably increase the burden or use the easement to benefit non-dominant land.

O and A are adjacent landowners. For many years, A has crossed O's land without O's permission in order to reach a public road.

After the prescriptive period has expired, A will have acquired a legal right to cross O's land. In other words, A will now have an affirmative easement appurtenant or right of way across O's land.

Note on delivery

Although manual delivery was traditionally preferred, the trend is toward expanding the types of situations where symbolic delivery is acceptable. For example, courts have allowed a future interest in personal property to be created in a third person by symbolic delivery.

Color of Title and Constructive Adverse Possession

An adverse possessor who claims the land based on an invalid written instrument, such as a deed, can acquire title by adverse possession to all of the unoccupied property described in the written instrument even though he or she physically occupies only a portion of the property in question. This assumes that the adverse possession obtained the written instrument in good faith and not fraudulently.

Easement by Necessity

An easement created when property, owned by a common owner is divided into two separately-owned portions in a way that leaves one portion land-locked. This is known as strict necessity.

Easements in gross

An easement where a particular tract of land is burdened, but no adjacent land benefits from the easement. ex: The telephone company has the right to put telephone poles and wires across A's land. A's land is burdened, but there is no nearly property belonging to the telephone company that is benefitted. A's land is subject to an easement in gross. If the easement is held in gross, the burden runs with the burdened land. The benefit of an easement in gross may be transferred or assigned in some cases, but traditionally the benefit of a recreational easement in gross could not be transferred if it would increase the burden on the affected property.

Acquisition by Gift

An inter vivos gratuitous transfer of title to personal property (that is, a gift: requires: 1.) donative intent 2.) delivery of the property 3.) acceptance of the property by the donee. (In contrast, gratuitous inter vivos transfers of real property require: 1.) execution 2.) delivery of a written instrument 3.) acceptance of a written instrument (such as a deed).

Vested remainder

An interest that is not subject to any conditions precedent and is created in a living, ascertainable grantee. They may be: (1) indefeasibly vested; (2) subject to open or partial divestment or (3) subject to complete defeasence. Ex: A conveys Blackacre "to B for life, and then to C and his heirs." Here, the grantee, C, is ascertainable

Springing Executory Interest

An interest which divests the interest of the grantor or fills a gap in possession in which the estate reverts to the grantor Ex: A conveys "to B for life, and one year after B's death to C and his heirs."

How can a property be partitioned?

Any tenant in common or joint tenant can bring a lawsuit to have the property partitioned. The parties can also partition the property by voluntary agreement. A tenancy by the entirety cannot be partitioned unless the married couple gets a divorce.

Third approach to recover stolen property

Apply a due diligence rule. (See O'Keefe case). Under the due diligence rule, the statute of limitations for replevin is tolled as long as the true owner exercises due diligence to recover the stolen property. What constitutes due diligence will depend on the value of the property and what resources are available to the true owner to discover the whereabouts of the stolen property.

Traditional approach to recover stolen property

Apply the replevin statute of limitations to those who purchase in good faith from a thief. This approach clears up title to the property quickly, but may be unfair to the true owner

Second approach to recover stolen property

Apply the same adverse possession principles that apply to real property. However, this approach raises questions about whether the open display of the property in a private residence is sufficiently "open and notorious" to enable the transferee to acquire title to the property by adverse possession. This rule is likely to generate litigation since neither the true owner nor the present owner will be sure if the requirements of adverse possession have been met.

O transfers Blackacre "to A for life; then to B and his heirs if B reaches the age of 21."

As a result of this transfer, A has a possessory life estate, B has a contingent remainder in fee simple, and O has a reversion. The life estate and the reversion are vested interests. Therefore, if A transfers his life estate to O before B reaches the age of 21, the life estate would merge into the reversion. Since the life estate "supports" the contingent remainder, the remainder would be destroyed when the supporting life estate merged into the reversion

Ameliorative Waste

At common law, a life tenant was prohibited from engaging in acts that changed the property's value (even those that enhanced the value), unless all future interest holders were known and consented.

Rule in Shelley's Case

At common law, it prevented contingent remainders in the grantee' heirs by defeating the grantor's intent and changing the interest that the grantor purported to give to the grantee and his heirs to a vested remainder in the grantee. It changes the state of title to two successive freehold estates in the grantee. Most jurisdictions have abolished this rule, and the parties now take the present and future interests according to the language in the deed

Traditional Rule/Modern Rule of Contingent remainder

At common law: contingent remainders were destroyed if they had not vested by the time the preceding estate terminated. Today, in such a situation, the grantor's reversion becomes possessory, and the person holding the contingent remainder takes a springing executory interest, which becomes possessory if and when the condition precedent is met.

A owns a tract of land called Blackacre. The eastern boundary of Blackacre is adjacent to a public highway. A later sells the western half of Blackacre to B without expressly granting B a right of way across his remaining land. B is effectively landlocked because there is no public road on any side of her land.

At the time of the sale to B, an easement by necessity would arise by implication to allow B to cross A's land to reach the public road. It should be noted that an easement by necessity will terminate if the necessity later ceases to exist.

A conveys Blackacre "to B for as long as the property is used as a hospital, then to C."

B has a fee simple subject to an executory interest, C has an executory interest, and A does not have an interest.

A conveys Blackacre "to B for the life of B."

B has a life estate, which terminates upon B's death. A has a reversion; upon B's death, ownership of Blackacre reverts to A.

A conveys Blackacre "to B for B's life, then to C."

B has a life estate, which terminates upon B's death. C has a remainder; upon B's death, ownership of Blackacre vests in C.

A conveys "to B for life, and on B's death to C. But if C predeceases B, on B's death to D.

B has a present life estate. C has a future interest, which is a remainder because it can become possessory upon the termination of B's life estate. C's remainder is vested because C is ascertainable AND there is no condition precedent that C must satisfy to take Blackacre. However, C's vested remainder is subject to complete if a condition subsequent (C predeceasing B) occurs. D has a future interest, but it is not a remainder because C's interest is not an estate of a fixed duration. However, if the condition subsequent occurs, D would be entitled to take possession of Blackacre, thereby cutting short C's interest. Consequently, D has a shifting executory interest

A conveys Blackacre "to B for life, then to C if C survives B; but if C does not survive B, on B's death to D." (What interests are created?)

B has a present life estate. C has a future interest, which is a remainder because it can become possessory upon the termination of the preceding possessory interest (B's life estate), and is a contingent remainder because C's taking is conditioned on C surviving B. D also has a future interest, which is a remainder because it can become possessory upon the termination of B's life estate; it is a contingent remainder because D's taking is contingent on C not surviving it

Rule of Capture

Based on principle of "first in time, first in right." Tends to be the preferred method of assigning rights to new forms of property (such as asteroids)

How can a landlord breach the Covenant of Quiet Enjoyment?

By creating, or in some cases allowing, a condition to exist that substantially deprives the tenant of beneficial use of the premises

A purchases a house for $100,000 from B. A makes a $10,000 down payment, obtains a $75,000 first mortgage from C, a bank, and obtains a $15,000 second mortgage from B. A subsequently defaults and C forecloses. The house only brings $50,000 at the foreclosure sale. C gets $50,000.

C may be able to recover the balance of the debt from A if A has any assets. Likewise, B may try to recover the balance of A's debt to him by suing him personally. However, B will get nothing from the sale of the house because his mortgage was junior to C's.

Original Title

Can be based on discovery, capture, or creation

Third Restatement of Property approach to Horizontal Privity

Does not require horizontal privity between the original parties in order for either the burden or the benefit affect remote parties

Rights and Obligations of Co-Tenants

Each tenant is said to have an undivided interest in the property. This means in theory that each tenant has an equal right to occupy the entire property, regardless of the size of his or her share. Furthermore, in the absence of ouster or an express agreement, a tenant in possession has no obligation to pay rent to a tenant out of possession. Any tenant in possession can rent the property, but they must pay the other tenants a pro-rata share of the rent.

Express easements

Easements created by a written instrument that is executed in accordance with the requirements of the Statute of Frauds. When the grantor reserves an easement in the land that is sold, the easement is created by a provision in the deed known as a reservation; when the grantor creates an easement in favor of the land that is sold, the easement that is created in the deed is known as a grant

Implied Easements

Easements may also be implied by prior use or by necessity. In addition, easements can arise through prescription, which is somewhat similar to adverse possession.

Constitutional and Statutory Restrictions

Equitable servitudes and real covenants are subject to constitutional and statutory limitations. Thus, restrictions on the use of property may be held invalid under state law due process grounds if they are unreasonable. In addition, restrictions that discriminate on the basis of race, religion or national origin may be struck down on equal protection grounds. Finally, restrictions may be held invalid if they conflict with the Fair Housing Act, Americans with Disabilities Act or other federal antidiscrimination statutes.

Termination of Equitable Servitudes

Equitable servitudes may terminate at the end of a specified period of time as provided in the instrument that creates them. In addition, a court in equity may refuse to enforce an equitable servitude if there has been a change in the character of the area, if the parties have abandoned or waived their right to enforcement or because of laches or estoppel.

The Rule Against Perpetuities may also be violated if vesting is contingent on an event that is not certain to happen within the perpetuities period.

Ex: T devises a gravel pit "to all of my issue who are alive when all of the gravel is extracted from the pit." It is not certain that all of the gravel will be removed within 21 years of the death of one of T's issue who was alive at T's Death

It is possible for the public in general, as opposed to particular individuals, to acquire a prescriptive easement. However, courts tend to conclude that indeterminate public rights are permissive and not prescriptive. The more specific the public pathway is, the more likely a court will treat it as prescriptive.

Example: Members of the public habitually cross railroad tracks on foot at a particular point to get to the other side. This is likely to be treated as a prescriptive easement. Beaches are a particular problem. Court have invoked a variety of doctrines to try to secure the public's right to walk on privately owned land along the dry sand beach, i.e. above the mean high water line. These include prescription, customary rights and the public trust doctrine.

Difference between Fee Simple Determinable and Fee Simple Subject to a Condition Subsequent

Fee simple subject to a condition subsequent is not automatic. Upon occurrence of the stated condition, the present fee simple will terminate only if the grantor affirmatively demonstrates intent to terminate (usually by bringing an action)

Covenant of Seisin

Grantor affirms that he has good title to the land in question

Covenant of Right to Convey

Grantor warrants that he has the right to convey the property; only relevant when the seller is a trustee.

Vested remainder subject to open or partial divestment

If a conveyance grants a remainder to a class of grantees and at least one of the grantees receives a vested remainder at the time of conveyance, but other grantees maintain the ability to become vested and share in the grant Ex: A conveys "to B for life, and then to B's children as they turn 18." B has 3 children upon death, X (10 yrs old), Y (15 yrs old), and Z (20 yrs old). Z has a ___

Difference between mislaid property and abandoned property

If property is mislaid, the owner of the land where the property is found usually prevails over the finder. If property has been abandoned by its owner, a finder who is rightfully on the land usually prevails over the landowner. Property is deemed to be abandoned when its owner voluntarily gives up possession with no intention of reclaiming the property

Adverse Possession when the condition or prohibition have been broken

If the estate is a fee simple determinable, title automatically reverts to the grantor if the condition is broken and the statute of limitation for adverse possession starts to run if the granter fails to exercise his possibility of reverter. However, this is not the case if the estate is a fee simple subject to condition subsequent. In theory, the statute of limitations for adverse possession won't start to run when the condition is broken because the possessor continues to own the land until the grantor exercises his right of entry. In such cases, in order to clear up the grantee's title, courts may invoke equitable doctrines, such as laches or estoppel, against the holder of right of entry who waits too long to reenter the property.

A conveys "to B for life, remainder to B's heirs."

If the rule in Shelley's Case applies, B will receive the property in fee simple absolute. If the rule in Shelley's case has been abolished, B has a life estate, and B's heirs have a contingent remainder in the subject property

Claim of right (claim of title): Requirement

In most states, the requirement is satisfied on an objective basis, but some states also look to the adverse possessor's subjective state of mind. This approach takes one of two forms: 1.) According to the "good faith" approach, the adverse possessor must think he or she owns the property. 2.) Under the "aggressive trespasser" standard, the adverse possessor must believe that he or she does not own the land but intends to occupy it anyway. This subjective approach is often applied to boundary disputes.

Prevention of a Prescriptive Period

In most states, to stop the prescriptive period from running, a landowner must physically prevent a person from using the land or must bring a lawsuit against him or her. However, a few states follow the English "lost grant" theory which bases prescription on the presumption of a lost grant and the landowner's acquiescence of the prescriptive user for the statutory period. In this case, the landowner can stop the statute of limitations from running by conduct that is inconsistent with such acquiescence, such as objecting to a person's exercise of the easement. This rebuts the presumption of a lost grant and starts the statute of limitations running all over again.

Rule of Spencer's Case (1583)

In order for real covenants to benefit or burden successors in interest: (1) the contracting parties must intend for the agreement to bind or benefit their respective successors in interest; (2) the burden (and possibly the benefit) of the covenant must "touch and concern" the land; and (3) there must be privity of estate between the original parties and between one of the original parties and a successor in interest. Real covenants are subject to the Statute of Frauds and cannot arise by implication.

Disabilities and Tolling Statutes

In some cases, the statute of limitations for adverse possession may be tolled if the true owner is disabled. Disabilities are usually identified by statute. They typically include insanity or some other form of mental incompetence, minority, and imprisonment. The disability must exist at time of first entry. Disabilities that arise after this time do not toll the statute of limitations. When the disability exists at the time of first entry, an alternative limitation period begins to run when disability ends or when disabled person dies. Using the alternative limitation period is optional with the true owner

Negative Easements

In the United States, prescriptive negative easements are not recognized. However, most states now recognize scenic easements, solar easements and conservation easements. These can either be easements appurtenant or easements in gross. A scenic easement restricts building height or other obstructions on the servient tenement in order to protect the dominant tenement owner's view. Solar easements usually restrict the height of trees or buildings in order to protect the access of solar panels to sunlight. Conservation easements are designed to restrict development in order to preserve existing land use patterns.

Right to Terminate

In the conveyance, the grantor must explicitly retain the right to terminate the fee simple subject to a condition subsequent. Ex: "right of entry," "right of reentry," "power of termination. This right is devisable and descendible but cannot be transferred during the owner's lifetime. The owner may waive this right, but the mere failure to assert it does not constitute a waiver. Grantor must affirmatively exercise a right of entry, either by physically taking possession of the property or by bringing an action to quiet title, in order to terminate a fee simple subject to condition subsequent.

Shifting Executory Interest

Interest that divests the interest of the grantee by cutting short a prior estate created in the same conveyance. The estate "shifts" from one grantee to another on the happening of the condition. Ex: A conveys "to B and his heirs, but if C returns from Paris, then to C."

Vested remainder subject to complete defeasement

Interest which indicates that the occurrence of a condition subsequent will completely divest the remainder interest. Ex: A conveys "to B for life, and then to C; but if C has no children, then to D's children." C has a vested remainder interest, but if he is not survived by his children at the time of B's death, then C's interest will be divested.

Symbolic delivery

Involves the transfer of a writing that identifies the property in question and evidences the fact that the donor is transferring title to this property to the donee.

To whom does the implied warranty of habitability apple?

It applies to residential property, and there is a split of authority as to whether it applies to commercial property as well.

Classification of Interests

It is important to classify the various interests in a disposition clause in order (from left to right) because the characterization of the first interest usually determines the characterizations of the following interests. Ex: a contingent remainder can follow a contingent remainder but cannot follow a fee simple

Is an equitable servitude a contract right or a property right (like an easement)?

It might matter if the government condemns land that is subject to an equitable servitude and violates the restriction.

What type of buildings does the implied warranty of quality apply to?

It seems to be limited to new residential construction. Purchasers of commercial buildings must rely on express warranties. It also appears that this warranty can be disclaimed, although the right to disclaim is limited. Finally, unlike the UCC's implied warranty of merchantability for the sale of goods, the duty imposed on sellers by implied warranty of quality seems to be one of reasonable care rather than true strict liability.

O conveys Blackacre to A for life, then to A's widow, if any, for life, and then to A's children and their heirs.

Keep in mind that the Rule Against Perpetuities is concerned with vesting and not with possession. This can be illustrated by changing the unborn widow example slightly. In this case, A's children have a vested remainder subject to open. Although the interest of A's children does not become possessory until A's widow dies (assuming A is married at his death), their interest vests at A's death when the class closes. For this reason, A can serve as the measuring life for A's children and their interest is valid.

Transferability of life estates

Life estates can be transferred. The transferee is deemed to have a life estate "pur autre vie." At common law, if the transferee died before the original life tenant, the property went to the general occupant, that is, the first person to take possession. The general occupant could occupy the property until the original life tenant died.

Implied warranty of quality

Many states now provide that developers and builders of new housing impliedly warrant that the building has been properly constructed. This obligation does not apply to private sellers who are not in the business of building or selling homes. Some states require that there be privity of contract between the builder and the plaintiff. This effectively limits the warranty to the original buyer. However, it appears that privity of contract is no longer required in the majority of states. In that case, subsequent purchasers can sue the original builder or developer for breach of the implied warranty of quality and recover for physical damage to property as well as economic losses such as loss of bargain or the cost of repairing the defective condition.

Termination of Easements

Most easements last indefinitely. However, an easement may be created that is of limited duration. An easement may also be terminated by merger, release, prescription or abandonment. Easements appurtenant may be terminated by merger when the dominant and servient tenements are acquired by the same owner. An easement may also be terminated when the owner of the dominant tenement releases the easement in a formal document. An easement can also be lost by prescription when the owner of the servient tenement refuses to allow the owner of the dominant tenement to exercise the easement for the prescriptive period. Finally, an easement will terminate if the owner of the dominant tenement by abandonment if he ceases to use it with the intent of giving up his rights under the easement.

Can a Real Covenant to pay money touch and concern the land?

Negative or restrictive covenants that limit what a person can do with his land will always touch and concern the land. (Tulk v. Moxhay holding)

Notes on Equitble Servitudes

Neither horizontal nor vertical privity is required for the burden to run. However, some jurisdictions require some sort of vertical privity between the beneficiary and the original promisee for the benefit to run. In the past, a real covenant was enforced by a damage award and an equitable servitude was enforced by an injunction. However, with the merger of law and equity in the 20th century, courts no longer make this distinction.

Can the original promisee enforce a restriction after he has conveyed all of the benefitted land to others?

No, in the majority of states, the original promisee, such as a developer, cannot enforce a restriction after he has conveyed all of the benefitted land to others.

A and B are adjacent landowners. They each agree to restrict their land to residential use. B sells her lot to C, who wants to build a gasoline service station on her property. Can A enforce the promise against C?

No. There is no horizontal privity between A and B.

Equitable Servitude Requirements

Normally, equitable servitudes are subject to the Statute of Frauds just like real covenants. They may be placed in individual deeds or recorded on a subdivision plat. However, most states also allow equitable servitudes to arise by implication as "reciprocal negative easements." Under this theory, when a landowner, pursuant to a common scheme of development, places a restriction in the deed of a buyer, the grantor's remaining land is subject to the same restriction (which is really an equitable servitude). This restriction will bind all subsequent grantees who take with actual or constructive notice. Moreover, the physical character of the area may be sufficient to put a buyer on "inquiry" notice to discover the restriction in another landowner's chain of title even though it is not in the buyer's.

Tenancy in Common

Normally, these concurrent estates are inheritable. However, it is possible though rare, for this concurrent estate to be described as a joint life estate. This concurrent estate may be transferred inter vivos by deed. Such transfers do not affect the validity of the concurrent estate; the heir, devisee, or transferee simply steps into the shoes of the former concurrent estate holder. The interests involved do not have to be equal. Furthermore, an interest holder may terminate concurrent ownership by asking a court to partition the property. The concurrent estate holders share only one unity, the unity of possession

Vested Remainders subject to open (which necessarily involve class gifts) are treated as contingent, not vested, under the Rule Against Perpetuities

O conveys Blackacre "to A for life, then to A's children." A has one child, B, at the time of the conveyance.

Example of Fee Simple Determinable

O conveys Blackacre "to A so long as the property is used for school purposes." A's interest will terminate automatically if the stated event occurs. O's possibility of reverter is considered to be an inheritable vested interest that can last indefinitely. Both interests are devisable and transferable inter vivos in most states. When transferred to a third person, a possibility of reverter retains its original character and does not become a remainder or an executory interest.

Example of fee simple subject to executory limitation

O conveys Blackacre "to the School Board, but if the property ceases to be used for school purposes during the next 21 years, then to A and his heirs." A has an executory interest O has no interest at all Title to the property automatically shifts from the School Board to A if the condition is broke,.

Unborn Widow Rule

O conveys Blackacre to A for life, then to A's widow for life, then to A's issue in fee simple. At the time of conveyance, A will have a possessory life estate. If A leaves a widow, she will be ascertained at A's death. Therefore she will have a contingent remainder for life. A's issue, who will not be ascertained until the death of the widow, have a contingent remainder in fee simple. The widow's interest is valid because A an serve as the validating life. Her interest will vest, if at all, at A's death. However, the interest of A's issue violates the Rule Against Perpetuities. Only issue who are alive at the widow's death will take a share of Blackacre. If we knew for certain that A'swidow was alive at the time of the conveyance, she could serve as the validating life. Remember that A's present wife may not be married to A at his death; someone else may be his widow. Therefore, it is possible that the widow might not be born at the time of the conveyance. In that case, the widow could not serve as a validating life since she is not "life in being." A cannot serve as a validating life either because his widow may die more than 21 years after A dies

O conveys Blackacre "to A & his heirs one year from now."

O has a fee simple subject to executory limitation. A has a springing executory interest. 1 year from now, A will have a fee simple absolute and O will have nothing.

Example of Disabilities and Tolling Statutes

O, the true owner of Blackacre, is out of possession and insane in 1980 when A, an adverse possessor, first enters the property under claim of right. O dies intestate in 1995. O's sole heir, b, is 10 years old at the time of O's death. The statute of limitations for adverse possession is 21 years from the time of first entry or 10 years after the true owner's disability is removed. The age of majority is 18 years. The 21 year statute of limitations would expire in 2001. However, the alternative statute of limitations expires in 2005, that is, 10 years after O dies. It does not matter that B is a minor and, therefore, under a disability, when O dies because B did not own the land when A first entered it adversely.

T devises a $1,000,000 in trust to A for life, then to A's children for their joint lives, and upon death of the last surviving child of A, to A's grandchildren then living. A is an 80 year old woman

One could argue that the class of A's children is closed because A cannot biologically have any more children at the age of 80. If that were the case, A's children could serve as the validating lives for A's children. That is, the interests of the grandchildren would vest when the last child of A died. However, under the traditional "what might happen" approach, we presume that A might have additional children. Consequently, the class of A's children is not closed and A's children cannot serve as validating lives for A's grandchildren.

How is the rule of capture applied to vagrant/fugitive substances such as surface water, ground water, or oil and gas?

One who has physical access to the resource, such as an appurtenant or overlying landowner, may acquire title to it by removing, extracting, or transporting it from its original site. The rule of capture was also once applied to mining claims on government lands in the western United States

Void title

One who obtains possession of personal property by theft has void title AKA no title. Ordinarily a thief cannot convey good title to anyone, even a bonafide purchaser. However, one who has void title, or his successor in interest, can obtain good title when the statute of limitations limitations for replevin bars the true owner from bringing suit to recover possession of the property.

Bona fide purchaser

One who takes the goods without notice of the rights of the true owner and who pays fair value for the goods.

Tenancy by the Entirety

Only married couples can acquire and hold property via this concurrent estate. In addition to the four unities associated with joint tenancy, these concurrent estate holders also have the unity of marriage. Like joint tenants, these concurrent estate holders have a right of survivorship in the property. However, neither of these concurrent estate holders can unilaterally sever this concurrent estate by attempting to transfer their interest in the property to a third party. Both parties must join in the sale. If the married couple is divorced, their concurrent estate will be converted into one of the other two concurrent estates since the unity of marriage will be destroyed.

Tacking

Ordinarily, when an adverse possessor abandons the property before perfecting title, the statue of limitations starts to run all over again if another possessor subsequently enters the property. However, if there is a succession of interests between the first adverse possessor and the second (known as privity of estate), the second adverse possessor gets credit for the time spent by the first adverse possessor. The second adverse possessor may take advantage of this when he or she succeeds to the first adverse possessor's interest as the result of an inter vivos conveyance, devised in a will, or under the laws of intestate succession Thus, if A occupies Blackacre adversely for 8 years and then purports to sell it to B, B will gain title to the property in 2 years if the statute of limitations for adverse possession is 10 years. However, a subsequent adverse possessor who unlawfully ejects a prior adverse possessor (who has not yet perfected his title to the land) is not entitled to tack the prior adverse possessor's time to his own.

The covenant of quiet enjoyment (constructive eviction

Originally, it meant that the landlord guaranteed that the tenant would not be ousted from possession by a superior claim on the part of a third person. However, nowadays the concept has been expanded to protect the tenant's beneficial enjoyment of the leased premises.

What types of partitions are there?

Partitions can be physical (or in kind) or can be by sale. Physical partition means that the property is physically divided, with each tenant receiving a share of the property according to his or her respective interest. When a partition by sale occurs, the property is sold and the proceeds of the sale are divided on a pro rata basis between or among the tenants.

Fee simple subject to executory interest

Present fee simple estate limited in duration by either conditional language or durational language, such that it will terminate upon the occurrence of the specified condition, and title will pass to a third party. Upon the occurrence of the stated condition, the present fee simple terminates automatically. The future interest held by the third party is an executory interest.

Fertile Octogenarian Rule

Presumption that a person is fertile, no matter his or her age.

O conveys 1 acre to A and retains the rest. Both parties agree to restrict their lots to residential use B acquires title to A's property by adverse possession and opens a restaurant. Can O prevent B from doing this?

Probably not. Although B succeeds to A's interest in the property, there is no formal transfer. Therefore, there may not be vertical privity between A and B.

Manual Delivery

Requires a physical transfer of possession of the property itself from the donor to the donee.

Touch and Concern Requirement

Restrictions on use always touch and concern the land. Affirmative duties relating to activities or structures on the land probably touch and concern it as well. Payment of money is problematic. If it benefits the land (like homeowners fees), it is probably okay. Off-site tie in requirements (like joining a particular health club) are also problematic.

Entrustment

The UCC §2-403 (2) provides that if the true owner transfers possession of goods to a merchant who deals in goods of that kind, the merchant can transfer whatever title the true owner has to one who purchases goods from the merchant in the ordinary course of business

In his will, O bequeaths $100,000 to A, a living person, if he reaaches the age of fifty. A has not reached the age of fifty at O's death

The bequest does not violate the Rule Against Perpetuities. Because A is a living person, he can serve his own validating life. The Rule against Perpetuities also applies to class gifts. For a class gift to be considered vested, the class must be closed (that is, each member of the class must be identified) and all conditions precedent must be satisfied for each class member within the perpetuities period.

Does the burden of an equitable servitude run with the promisor or with the land?

The burden will not run against the promisor after he has conveyed the land to another. The burden runs with the land.

Negative Easement

The burdened land is subject to a restriction but there is no right to enter the land. May be appurtenant or held in gross

O conveys Blackacre "to A for life, then to A's first child to reach the age of 25." A has children but no child has reached the age of 25 at the time of the conveyance

The contingent remainder in A's children violates the Rule Against Perpetuities because it is not certain to vest or fail to vest within 21 years of A's death, and there are no other living persons who can serve as measuring lives. A's children cannot serve as validating or measuring lives because they do not constitute a closed class. Keep in mind that vesting can be postponed more than 21 years if the holder of the remainder interest is already alive.

Life estate with a power to consume

The donee of the power, usually the life tenant, can sell part of the land or develop its resources in a way that was not available to an ordinary life tenant, such as mining or chopping down trees.

Differences between due diligence rule and other approaches.

The due diligence rule differs from fraudulent concealment and adverse possession because it focuses on the conduct of the true owner rather than the conduct of the thief. Downside: it is very fact specific and it may be difficult to know whether or not it has been satisfied.

Difference between fee simple subject to executory limitation and the other defeasible fees

The fee simple subject to executory limitation creates a future interest in a third person instead of retaining a revisionary interest. Unlike a possibility of reverter or a right of entry, an executory interest is subject to the Rule Against Perpetuities and, therefore, must vest or fail to vest within a life in being plus 21 years.

Possibility of Reverter

The future interest automatically retained by a grantor when a fee simple determinable is conveyed

Reversion

The future interest held by the grantor who grants a life estate or estate for years but does not convey the remaining future interest to a third party. They are not subject to the rule against perpetuities It does not have to be created expressly; it is implied by the fact that the grantor has transferred less than his or her original interest in the property.

Affirmative easements

The holder of the easement can enter the land that is burdened by the easement or maintain something on it. Ex: The owner of tract A has the right to cross tract B to reach a public highway. The easement that burdens tract B is an affirmative easement because the owner of tract A can enter tract B in order to exercise the easement. Affirmative easements also include the right to maintain a permanent structure or condition on the land of another Ex: A billboard purchases the right to construct and maintain a billboard on A's property, which is adjacent to a public highway. Although this agreement could be classified as a license, it may also be treated as an easement, depending on the intent of the parties.

Easement Appurtenant

The owner of one tract of land, known as the dominant tenement, is entitled to benefit from the land of another. The land that is subject to this burden is known as the servient tenement. Ex: If the owner of tract A has the right to cross tract B to reach a public highway, this right of way would be classified as an easement appurtenant. Tract A would be the dominant tenement and tract B would be the servient tenement. The benefit and the burden of easements appurtenant run with the land so the subsequent sale of either the dominant or the servient tenement has no effect of the easement.

Measuring Life

The person, usually the holder of a life estate, against whose life the duration of the life estate is determined (can be grantee or third party)

Breach of Warranties

The present warranties are breached, if at all, at the time of the conveyance and the statute of limitations begins to run at that time. Normally, present warranties extend only to the grantor's immediate grantee and do not run with the land. Future warranties may be breached any time after the conveyance and may be enforced against whoever made them, that is, predecessors in title. However, a predecessor in title is only liable for the purchase price that he or she received for the property.

Permissive Waste

The result of neglect, a failure to keep up the property, or a failure to reasonably protect the property. To maintain the property and avoid permissive waste, the tenant is only required to spend the amount of income generated by the property. The tenant's responsibilities include any property taxes and mortgage interest associated with the property.

Affirmative (Voluntary) Waste

The result of overt conduct that causes a decrease in the value of the property. The holder of the vested remainder interest may bring suit for damages, and either a vested or contingent remainder holder may bring suit for an injunction. Limited exceptions exist for the exploitation of minerals and timber if such use was authorized by the grantor, in effect at the time the tenancy began, or is necessary to maintain the property

Waste

The rights of a holder of any estate but a fee simple may limited by the doctrine of waste. The particular rules of waste depend on the type of estate held by the present tenant and the type of waste created.

Covenant of General Warranty

The seller promises to defend the rights of the grantee against valid claims of superior title brought against him by third parties

Covenant of Quiet Enjoyment

The seller promises to defend the rights of the grantee against valid claims of superior title brought against him by third parties. The seller also promises to indemnify the grantee against loss of possession if a third-party claim is successful.

Covenant of further assurances

The seller promises to take whatever measures are necessary to clear up further defects in the title.

Covenant against encumbrances

The seller warrants that there are no encumbrances on the land such as mortgages, liens, easements, profits a prendre, real covenants, equitable servitudes, or other servitudes, except those that are expressly identified and excepted in the deed

A owns a tract of land called Blackacre. A constructs a private underground sewer line at the eastern edge of his property. A's sewer line is a quasi-easement. A subsequently sells the eastern half of Blackacre to B, who has notice of the sewer line, and continues to use it after the sale to B.

The sewer line beneath B's property is an affirmative easement appurtenant that arose by implication at the time of sale to B.

Effect of Fraudulent Concealment on a Void title

The statute of limitations is tolled as long as the property is fraudulently concealed. Fraudulent concealment means the person in possession hides or conceals the property in order to prevent the true owner from recovering it. For this reason, it is unlikely that a thief could ever obtain a good title in this fashion. However, one who subsequently purchased the property in good faith from the thief would presumably not be guilty of fraudulent concealment and, therefore, probably could obtain good title once the relatively short statute of limitations for replevin has run.

What happens when a landlord breaches the covenant of quiet enjoyment?

The tenant can remain on the premises and sue for damages. However since the covenant to pay rent and the covenant of quiet enjoyment are dependent, the tenant can also unilaterally terminate the lease on the theory that the landlord's conduct amounts to a constructive eviction. A constructive eviction can apply both to residential and commercial leases

Consequences of breach of implied warranty of habitability

The tenant may vacate, withhold rent or deduct the cost of repairs from the rent. The tenant is also entitled to "loss of bargain damages, damages for discomfort, damages for emotional distress, and possibly punitive damages

A and B are adjacent property owners. They execute an agreement promising on behalf of themselves and their heirs and assigns to restrict their respective pieces of property to agricultural use.

There is no horizontal privity of estate between A and B. Therefore, while A and B can enforce the agreement between each other, beither can bind or benefit their successors in interest.

A sells a portion of property to B and both parties agree in the deed to restrict their respective pieces of land to agricultural use. The provision also purports to bind the heirs and assigns of the parties. A sells his property to C and B sells his property to D. D begins to construct a trailer park on his property.

There was horizontal privity of estate between A and B. In addition, there was horizontal privity of estate between A and C and between B and D. Therefore, C can enforce the restriction against D.

Joint Tenancy

These concurrent estates are not inheritable. If one of the tenants dies, their interest dies with them. Although nothing passes to the surviving tenant when one tenant dies, the value of the interest of the survivors is effectively increased since there is one less person with a beneficial interest in the property. There can be any number of tenants, but each tenant must have an equal share in the property. it should be noted that declaring that A, B, and C hold a piece of property "jointly" does not necessarily indecate whether they are joint tenants or tenants in common. These tenants must share the four unities of time, title, interest, and possession. Thus this concurrent estate is automatically converted into a tenancy in common if one tenant conveys their interest to a third party because the unities of time and title are broken. In addition, when any tenant asks a court to partition the property, it will convert the property into individually owned parcels

A local city government enters into an agreement with the owner of a horse farm under which the owner promises not to develop the property for residential or commercial use for twenty years. The city does not own any property in the area, but wants to protect the greenbelt surrounding it.

This "conservation easement" would be anegative easement in gross.

A conveys "to B and his heirs, but if C returns from Paris, then to C." (What interests are created?)

This conveyance creates a fee simple subject to an executory limitation in B, and a shifting executory interest in C.

A conveys "to B for life, and one year after B's death to C and his heirs." (What interests are created?)

This conveyance creates a life estate in B, a one-year reversion in A (in fee simple subject to an executory limitation), and a springing executory interest in C. EXAM NOTE: Any interest held by a third party that follows a fee is always an executory interest because a remainder never follows a fee

Prescriptive Easements

This easement resembles adverse possession. In the United States, only affirmative easements can be acquired in this manner. To do so, one must use the land for the requisite period in a manner that is open, notorious and hostile to the rights of the true owner.

Tenancy at Sufferance

This is not an official tenancy, but the name is given to cover a situation when a tenant holds over after his or her lease expires. If the landlord fails to evict the holdover tenant, the tenant may be allowed to remain on a month to month basis on the same terms as the old lease.

Tenancy at Will

This lease does not last for any fixed period of duration, but can be terminated by either party at any time. In addition, it will automatically end if either the landlord or the tenant dies or if either party attempts to assign the lease.

Periodic Tenancy

This lease lasts for a specific period of duration, such as a week or a month or a year, but is automatically renewable unless one party or the other gives timely notice of his or her intention not to renew. The period necessary for timely notice varies according to the length of the lease. At common law, a 6-months notice was required to terminate a year-to-year lease, while a month's notice was required to terminate a month-to-month lease. In any case, the termination must take effect at the end of the lease term and not in the middle of it.

Term of Years

This lease, which can last for any period, is characterized by a specific starting date and an ending date. These leases typically last for a priod of months or years, but they can last for a century or more. The tenancy ends automatically when the period expires and there is no need for either party to give notice, nor is there any automatic renewal of the lease

Marketable Title and Adverse Possession

Title based on adverse possession may qualify as "marketable" under this standard even though someone other than the seller is the owner of record. However, title based on adverse possession will not be acceptable if the contract requires the seller to provide "marketable record title." In addition, to qualify as marketable, the property must be free of encumbrances, such as liens, easements, and covenants unless they are expressly excluded. However, sometimes visible utility easements are allowed on the theory that they benefit the buyer.

Ferae Naturae

Title to wild animals = based on rule of capture Acquired by killing, wounding, or confining the animal so that its freedom of movement is terminated. This principle does not apply to either domestic or wild animals who have developed a habit of return or "animus revertendi."

Adverse Possession: Requirements

To acquire title to real estate by adverse possession, there must be 1.) an actual entry onto the property that gives exclusive possession to the adverse possessor 2.) Open, continuous, notorious, adverse, and under a claim of right (must be independent of the rights of the actual owner and must not be permissive, and think you own in) --Adverse possessor must occupy in the customary manner (vacation property does not have to be occupied in the winter.

The owner of tract A has agreed to not to construct any building on the property that is more than 20 feet in height in order to prevent solar collectors on tract B from being blocked from the sun.

Tract A is subject to an appurtenant negative easement.

Fee Simple Determinable

Type of Defeasible Fee that is limited by specific durational language (e.g. "so long as," "while," "during," "until.") It is an inheritable possessory estate in which the grantor retains a reversionary future interest known as a possibility of reverter (not to be confused with a reversion). The property automatically reverts back to the grantor if the condition or restriction is violated

Title by Creation

Typically involves some form of intellectual property. As such it is based on satisfying the applicable statutory requirements. Patents, copyrights, and trademarks are examples of these statutory schemes. However, the right of publicity, a relatively new form of intellectual property, is primarily a judicial creation. Statutory forms of intellectual property represent a tradeoff between the rights of the creator, which are monopolistic in character, and those of

Title by Discovery

Typically limited to the acquisition by sovereign (European) nations. Nation must physically occupy territory, exercise control over territory, and defend its claim against other countries. Problem: determining extent of the discovery (i.e. how much did Columbus discover by landing in San Salvador in 1492)

A owns a tract of land known as Blackacre, which he wishes to develop as an exclusive single-family residential subdivision. A sells his first lot to B and places a restriction in B's deed that purports to limit B's property to single-family residential use. Similar restrictions are placed in the deeds to subsequent buyers. However, A inadvertently fails to include a restriction in his deed to M. M sells his lot to N who begins to build a convenience store on the property.

Under the concept of reciprocal negative easements, a court will find that N's property is also subject to the restrictions applicable to the other lots if they are part of a common scheme of development. N will be put on "inquiry notice" to discover the restrictions by checking the deeds of other property owners.

Merger

Under the doctrine of merger, both the present and future interests are merged so that the grantee takes in fee simple absolute. When two successive vested estates or interests come into the hands of the same person, the lesser estate is said to merge into the greater estate. Ex: O conveys Blackacre "to A for life; remainder to B and her heirs."

O conveys Blackacre "to A for life, then to the first child of A to reach the age of 21." At A's death, his only child B, is 10 years old.

Under the modern rule, Blackacre reverts to O as a fee simple subject to executory limitation. B's contingent remainder is not destroyed, ut rather is converted into a springing executory interest. If B reaches the age of 21, B's interest will become a fee simple absolute and divest O of his interest in Blackacre. On the other hand, B's executory interest will fail if B dies before reaching the age of 21, leaving O with a fee simple absolute.

A sells a portion of property to B and both parties agree in the deed to restrict their respective pieces of land to agricultural use. The provision also purports to bind the heirs and assigns of the parties. C subsequently obtains title to B's property by adverse possession and begins to construct a trailer park on his property.

Under the traditional rule, A could not enforce the restriction against C because there was no vertical privity of estate between B and C.

Seller's Duty to Disclose Defects

Under the traditional rule of "caveat emptor," the seller had no duty to disclose defects in the property. However, the seller would be liable to the buyer if he or she made false representations of material fact or engaged in fraudulent concealment of defects. The majority rule now appears to impose on the seller a duty to affirmatively disclose all known physical conditions that materially affect the value of the property unless they are obvious. In some cases, the seller may also be required to disclose information about off-site conditions or non-physical conditions such as noisy neighbors. If the seller breaches the duty to disclose, the buyer may rescind the contract of sale or may sue for damages if title has has already passed.

O conveys Blackacre "to A for life, then to B & her heirs if B reaches 21." Assume that A dies before B reaches the age of 21

Under the traditional rule, B's contingent remainder would terminate at A's death, regardless of whether B eventually reached the age of 21, and Blackacre would revert back to O.

Equitable Conversion

Under this doctrine, when the parties execute a valid contract of sale, the seller is deemed to have transferred equitable or beneficial title to the buyer, while retaining legal title. Legal title will be transferred from the seller to the buyer by delivery of a deed. Traditionally, the buyer assumed responsibility for any damage to the property between the time the contract was executed and the time of closing. However, the parties can allocate this risk in the contrct of sale.

Marketable Title

Unless the contract provides otherwise, the seller agrees to provide the seller with marketable title to the property. Marketable title is one whose validity is not subject to reasonable doubt and which a reasonable and informed buyer paying fair value for the property would accept

Difference between Equitable servitudes and Real Covenants

Unlike Real covenants, equitable servitudes burden the land itself, that is, an equitable servitude "sinks its tentacles into the soil. Thus, for example, and adverse possessor will be bound by an equitable servitude even though there was no vertical privity between him and the promisor. Other occupants, such as lessors, will also be bound

Difference between the covenant of quiet enjoyment and the implied warranty of habitability

Unlike the implied warranty of habitability, under the covenant of quiet enjoyment the landlord is not liable for conditions created by 3rd parties unless he can control their conduct, as in the case of employees or other tenants. If the landlord agrees to provide specific services or amenities and fails to do so, this failure will usually constitute a breach of the covenant of quiet enjoyment.

Possibility of Reverter

Upon the occurrence of the stated condition, the estate automatically reverts back to the grantor. Ex: A conveys Blackacre "to B and his heirs, until B gets married." A's interest is considered to be an inheritable vested interest that can last indefinitely

Constructive Delivery

Usually achieved by physical transfer of keys or other objects that permit access to the property

Life estates in personal property

Usually involve stocks or bonds, which are held in trust. The holders in such life estatees are referred to as income beneficiaries.

Transferability of Remainders and Executory Interests

Vested remainders are fully transferable inter vivos, devisable b will, and descendible by inheritance. Today, executory interests and contingent remainders are transferable inter vivos in most jurisdictions, although under common law they were not transferable; both are devisable and descendible. It is important to note that most states permit any transferable future interest to be reached by creditors, except for those interests held by unacertainable or unborn persons.

Voidable Title

When a person obtains possession form true owner by fraud which induces the true owner to transfer possession to him, the fraudster has voidable title. That is, the true owner can recover the goods from the fraudster as long as he continues to have possession. However, the fraudster can transfer good title to a bona fide (good faith) purchaser, thereby cutting off any rights the true owner would have had against the bona fide purchaser (but not the fraudster).

Installment Sales Contract

When an installment sales contract is used, the seller retains title to the property. The contract of sale typically requires the buyer to make a series of equal payments to the seller (with interest) until the debt is paid. The contract also requires the seller to convey title to the buyer at the end of payment period. Installment sales contracts often provide that a buyer who defaults can be removed from possession and will forfeit all payments previously made pursuant to the contract (as liquidated damages). However, courts now tend to protect buyers against such forfeiture provisions and require the creditor to conduct a foreclosure sale. In these states, there is not much difference between a mortgage and an installment sales contract.

Remedies for Breach of a contract of sale

When one party defaults, the other party may sue for rescission, specific performance, or damages. Damages include loss of bargain damages, special damages, and sometimes punitive damages. The measure of loss of bargain damages is the difference between the purchase price and the actual market value of the property at the time of breach. The parties may include a liquidated damages clause in the contract which a court will enforce if the liquidated damage amount is reasonable.

Acquisition by Find

When property is lost, a finder who is lawfully on the land usually has good title against everyone except the true owner. However, in certain situations, the owner of the land where the property is found may be deemed to have constructive possession sufficient to defeat the rights of the finder. This is known as the principle of "ratione soli." Courts are likely to apply this doctrine to finders who are trespassing in order to protect owners against trespassers.

Foreclosure sales

When the debtor defaults, the creditor normally asks the court to order a foreclosure sale. This is known as a judicial foreclosure sale and is conducted by the sheriff or some other public official. Many states permit the creditor to include a power of sale provision in the mortgage which allows the creditor to conduct a private foreclosure sale. In either case, the creditor can only recover the amount of the debt owed and must turn over any surplus, known as the equity of redemption, to the debtor. Most courts now hold that the creditor who sells the property in a private foreclosure sale must act in good faith and exercise due diligence in order to protect the debtor's equity of redemption.

Equitable Servitude

a promise respecting the use of land that is enforced in equity. Like real covenants, equitable servitudes can be either affirmative or negative (i.e. restrictive). When residential subdivisions are involved, equitable servitudes are often called "deed restrictions." Equitable servitudes were invented by the Chancery Court in England in Tulk v. Moxhay (1848).

Real Covenants

a promise respecting the use of land. An affirmative covenant requires the promisor, or his/her successor in interest, to pay money or perform some other act or service. Ex: A sells a portion of his land to B and also promises in the deed to maintain a ditch on his remaining property that allows water to flow to the property that has been sold to B.

Rights and obligations of the Life Tenant

a. Sell or lease (for the duration of their life) b. receive rents/profits c. Make reasonable repairs d. pay taxes e. may mortgage interest held f. possession

Deed of Trust

deed that transfers property to trustee for benefit of creditor. The trustee has the power to sell the property at a private foreclosure sale if the debtor defaults. However, if the debtor does not default, the trustee is required to re-convey the property to the debtor when the debt is fully paid off.

Third Restatement note on Covenants

if the covenant is negative in nature, the restriction can be enforced by all users and possessors of land that is burdened or benefited. On the other hand, the burdens and benefits of affirmative covenants generally run to those who satisfy the traditional requirements of vertical privity. However, the burden of affirmative covenants will usually run against adverse possessors.

Defeasible Fee

ownership of potentially infinite duration, but may be terminated by occurrence of an event

Implied warranty of habitability

requires the landlord to keep the premises fit for habitation both before and after a tenant takes possession. If this warranty is breached, the tenant may vacate, withhold rent or deduct the cost of repairs from the rent. Cannot be disclaimed

Approaches to the standard of necessity

reservation = strict necessity: usually inability to reach road/water granting= reasonable necessity: benefit to land getting easement other approach: look at entire situation (restatement approach

Vertical Privity of Estate

the relationship between one of the original parties and the present owner of the land that is either benefited or burdened by the covenant. Under the traditional rule, in order for vertical privity of estate to exist, a successor in interest was required to succeed to the same interest as his predecessor in title (although the First Restatement of Property relaxed this requirement as far as the running of the benefit was concerned).

Horizontal Privity of Estate

the relationship between the original contracting parties. In most states, the horizontal privity requirement is satisfied if there is a grantor-grantee relationship between the contracting parties at the time the covenant is made. In other words, one party, either the promisor or the promise, must simultaneously convey a portion of his land or an interest in his land such as an easement, to the other party to the agreement. Ex: A owns a tract of land known as Blackacre. A conveys the western half of Blackacre to B. The deed also contains a promise by A to restrict the property to agricultural use.