My Personal outline Property

1. PRESENT AND FUTURE INTERESTS.

Present Estates
Future Interests.
2. LAND OWNERSHIP.
Adverse Possession.
Land-Sale Contract.
Performance
Mortgages and Covenants for Title in Warranty Deed.
The Recording System.
3. USE OF LAND.
Easements, Licenses, Profits. Affirmation.
Equitable Servitudes and Covenants. Implied Negative Recipicle Servitude. Restriction
Support Rights.
Water Rights.
Government Regulation.
4. LANDLORD / TENANT.
Statue of Frauds
Land contracts must be in writing
Part performance
Agreement to agree
Type of Tenancy.
Tenancy for years
Periodic
At will tenancy
Sufferance
Tenant’s Right and Duties.
Duty to pay rent
Right of Possession
Quiet enjoyment
Duty to Not to disturb neighbor
Duty to Behave responsibly
Fixture
Waste
Warranty of habitability

Landlord’s Rights and Duties.

Duty to deliver possession to the tenant.
American rule, no duty, minority
Assignment / Subleasing.
Assignment
Sub-lease
Remedies.
Tenant
Withhold rent
 Fix problem
Sublease
Terminate
Abandon
Holdover
Landlord
Eviction-constructive
Eviction. through direct physical invasion by
landlord
Constructive eviction. Wrongful conduct by landlord,
uninhabitable for use and enjoyment of property, or intended purposes. Discharge
tenant from rent, but must move out
Partial eviction
Retaliatory
Acton for rent
Equitable damages
5. CONCURRENT OWNERSHIP.
Joint Tenancy. 4 entities: time, interest, title, possessory; Right of Survivorship
Tenancy in Common. Condominium, No Right of Survivorship
Tenancy by the Entirety. Husband and wife.
Relations Between Co-Tenants. Possession. No Duty to Account(Ouster, Depletion)
1. PRESENT AND FUTURE ESTATES.
Present Estates. Present Estate. Granting Language. Future Interest.

Fee Simple An estate of infinite duration with no limitations of inheritability. It cannot be

divested, nor will it end on the happening of any event.. Freely alienable.
Fee Simple Absolute. Fee Simple. Any interests following a fee
simple will be executory interests
Words Creating. “To A in fee.”
Restraints on Alienation. Freely convey. Except option, right of
first refusal

Fee Simple Determinable. A fee simple estate that will end automatically when some
specified event happens. Nothing further is required. It automatically reverts back to the
grantor. The future interest created is called a possibility of reverter.
Words Creating. Words of duration.
Future Interest -- Possibility of Reverter.
Statute of Limitations. Normally a long time.
Fee simple determinable subject to an executory limitation.
Words: But if.
Future: Executory Interest.
A fee simple determinable is constructed using words of during,
such as “for as long as,”and the property reverts back to the grantor (through the grantor’s
future interest in a possibility of reverter) if the grantee partakes of the proscribed
activity.
Words Creating. durational “while” “until” “during” “so long as”

Fee Simple Subject to a Condition Precedent. This fee simple does not automatically end.
It can be divested (cut short) at the grantor's election when a stated condition happens. If
the future event happens the grantor will get its fee simple absolute back if the grantor
explicitly enters a right of entry.
Fee Simple Subject to a Condition Subsequent.
Words Creating. Words of condition.
Future Interest -- Right of Entry.
Power to exercise
Ejectment. used to recover possession of the land. This used to be an
exclusive remedy for the possessor to recover land but has become available for owners
too.
Quiet title is a lawsuit to establish a party's title to property
Statute of Limitations. Normally starts upon occurrence of stated event and is normally a
short period.
A fee simple subject to a condition subsequent is constructed using words of
condition,such as “upon the condition that,” and the grantor holds a future interest in a
right of entry should the grantee partake of the proscribed activity.
Words Creating. Condition, "provided, however …," or "but if …," or "but
in the event …," or "on condition that …."
Fee Simple Subject to an Executory Limitation. This is a fee simple that automatically
divests in favor of a third person upon the occurrence of the stated event. The grantee
holds subject to divestment.
Words Creating. “But if.”
Statute of Uses.
A fee simple subject to an executory interest takes the place of a future interest in the
grantor of a possibility of reverter (determinable) or a right of entry (subject to a
condition subsequent). A fee simple subject to an executory interest instead goes to a
third party named in the granting instrument, upon the occurrence of the proscribed
event.
Words Creating. Either durational/conditional to third person.

A fee tail was invented to keep land in the family. The fee tail lasts as long as the grantee
or any of his descendants survives, and it is inheritable only by the grantee's descendants.
A fee tail is constructed using words like “to A and the heirs of A’s body,” and is nolonger
recognized as a viable estate. States will generally change a fee tail into a fee simple
absolute.
Fee Tail.
Words Creating. “To A and the heirs of his body.”
Death Without Issue.
Modern. Most states convert a fee tail to a fee simple absolute.

A fee tail is another type of estate, but it is generally not recognized as a

viable type of estate, as it once was. The purpose fee tail prohibits the selling of the
property outside of the family tree, or heirs. If someone tried to sell the property to a non-
family member, then the property would revert to the original grantor’s heirs. “A grants to
B and the heirs of his body.” The way a fee tail is treated in most states today, is that a fee
tail is simply converted to a fee simple absolute, and no states give full credence to a fee
tail.

Life Estates. . A life estate is an estate that has the potential

duration of one or more human lives. It can be for the life of the grantee, or pur autre vie
(for the life of another person other than the owner and grantee).
Life Estates. remainders are related to life estates. A remainder may be either
vested, or contingent. A life estate is a present interest in property which lasts for the
lifetime of the grantee, or for the lifetime of another person (per autre vie).
Life estate.
To A for life.
Reversion or Remainder.
Life Estate. An interest which lasts for the lifetime of a person.
Words Creating. ‘To A for life,’ or ‘to A for his life.’
Defeasable. May be defeasible, and thus can be a life estate determinable
or a life estate subject to a condition subsequent.
Restraints on Alienation. Freely alienable. Life estates may be subject to
restraints on alienation, and grantor may state that life estate holder may not convey their
interest.
 For life estates, forfeiture and promissory restraints on life estates are valid.
Disabling restraints that totally restrict alienation of the property are void, but a partial
disabling restraint may be valid if it satisfies the reasonable restraints doctrine, i.e., the
restraint must have a reasonable purpose and be for a limited time.

Life Estate per autre vie. Where measuring life is that of another person other than
the grantee. A life estate pur autre vie is devisable and inheritable. Barney's heirs will
inherit a possessory estate for the remainder of Wilma's life. { pur auter vie for the life of
another}

Shifting executory interest. An interest is an executory interest if it follows a vested

remainder in fee. It is shifting because it divests a grantee, i.e., it shifts the estate from
one grantee to another.
REMEDY
Doctrine of waste is conduct by the life tenant that permanently impairs the value of the
land or the interest of the person holding title or having some subsequent estate in land.
Voluntary (affirmative) waste. The life tenant actively causes permanent injury.
Permissive (involuntary) waste: The land falls into disrepair because the tenant
fails to take reasonable measures to protect the land from the elements.
Ameliorating waste: The use of the land is substantially changed but the change
increases the value of the land. Recovery, even though increase value of property b/c not
what the owner intended.

Future Interests for Life Estates. An estate that will or may become a possessory estate in
the future but it does not entitle the owner to present possession.
Possibility of Reverter. estate will return to the grantor if a condition is violated
pertaining to a future interest from a fee simple determinable
Right of entry. grantor has the power of termination when an estate will return to
the grantor if a condition is violated and the grantor decides to reclaim the estate; if
grantor specifies, grantor resumes possession of land.
Reversion. grantee is given a possessory interest in a property from grantor with
the understanding that the interest will "revert" back to grantor
Escheat to Government. Returns the land back to the government
toprevent ownerless land.
Remainder for Third Person. a future interest in a third party that vests
upon the natural conclusion of the grant to the original grantee, Follows Naturally
Words Creating. “To A for life, remainder to B.”
Also applies to a term of years, “To A for ten years, then to B.”
Vested Remainder. Vesting means granting a person an
immediate right to present or future enjoyment of property. Vested open remainder
subject to RAP. a class gift to "the children of vested remainderman" remains open until
remainderman's death.
Contingent Remainders. contingent remainder, i.e., one that
is limited to an unascertained person. The remainder is contingent because the takers are
not ascertained at the time of the conveyance.
 Special Rules for Contingent Remainders. property can't
vest because the beneficiary is unknown or the beneficiary is subject to a condition
precedent which has not yet occurred
Destructibility of Contingent Remainders. contingent
remainder had to vest prior to the termination of estate
Rule of convenience. the class closes when one in
the class can call for distribution
Doctrine of merger. If a life estate and a reversion (or
vested remainder) was acquired by the same person, then any intervening contingent
remainder, if existed, was destroyed.
The Rule in Shelley’s Case. If a grantee acquires a life
estate and a remainder if given to the grantees heirs, then the grantee gets a fee simple
absolute.
Wait and See Statutes.
Doctrine of worthier title. person devises property to his
heirs, the devise is void and the heirs take by descent or it is better to descent than to
devise.
Contingent Remainders are subject to Rule Against
Perpetuities. See below
Executory Interests. is any future interest held by a third party that isn't a remainder
Rule Against Perpetuities. Life of person plus 21 years. If there is a possibility (even
remote) that the interest would not vest beyond the measuring life of a person plus 21
years, then the rule applies and the interest is void.
Special Situations.
Fertile Octogenarian (>80 year old male) or Unborn
Widow. makes a future interest in property void unless it can be logically proven that the
interest must either vest or fail due to the Rule Against Perpetuities. Both are legal
fictions that could remotely happen, i.e., that a male in their 80, 90 could father a child
and a child could be born by a widow.
Class Gifts. is considered vested only when every
member has a vested interest or is in possession.
Judged in Advance. common-law
version of the Rule requires that the validity of the interest be judged at the time it is
created, not at the time the interest actually vests.

Duties.
No Waste.
Reasonable Repairs.
Alienability. Could convey a lesser estate, for example, a term of years.

Executory Interests are subject to the Rule Against Perpetuities and are any interest in a
third party that follows a fee simple estate or otherwise cuts short (divests) a preceding
estate is an executory interest (executory interest cuts short the preceding estate).
Rule Against Perpetuities to all reversionary interest (possibilities of
reverter, rights of entry, and reversions) are vested and not subject to the Rule Against
Perpetuities.
Charity-to-charity exception to the Rule Against Perpetuities applies only if the gift shifts
from one charity to another. If the gift shifts from a private to a charitable use or from a
charitable to a private use, the Rule Against Perpetuities applies and the interest may not
be valid.

Restraints on Alienation. There are three types of direct restraints:

Forfeiture restraint: If the grantee attempts to transfer his interest it
is forfeited to another person.
Disabling restraint: A disabling restraint takes away from the
grantee the power of transferring the interest.
Promissory restraint: The grantee promises not to transfer his
interest.

2. LAND OWNERSHIP.
Adverse possession the possessor must show an actual entry giving exclusive
possession that is open, notorious, and visible; adverse and under a claim of right or color
of title; and continuous for the statutory period
Actual Possession which is Open, Notorious and Visible
Uses land in typical manner of owner of land.
Hostile. Without Owner’s Consent and under a claim of right or color of
title
Bad faith possessor, minority view, Bona Fide belief that possessor
has title
Exclusive use
Continuous. Scope of Interest Obtained Requirements
Possession for at least Statutory Period. Usually 15 Years or
Longer.
Interruption by owner.
Tacking
No privity

Scope of Interest Obtained. Portion actually obtained

Color of title, all, or, amount actually processed.
Constructive Adverse Possession. If Enter Under Color of Title, Receives Property as
Listed in Title.
Scope of Property Obtained. Portion Actually Occupied.
Boundary Disputes. Can Adversely Possess if Believed Adverse Possessor actually
owned the property.

Land-Sale Contract.
Formation. Must have Statute of Frauds, and if no sufficient land sale contract in
writing, which has an adequate description of the land and signed by the party to be
charged, then possible exception to SOF under part performance.
Statute of Frauds. land contract that not in writing are barred from the
court and restrictions must be in writing.
Exception.
 Part Performance.
Satisfaction by Memorandum. Will satisfy SOF if the
memorandum contains names of the parties, land to be conveyed, purchase price and the
signature of the party to be charged (against whom enforcement is sought).
For a valid deed, must have four major components. The landlord cannot sell an
estate greater than he owns
parties must be identified
sufficient words of transfer. Description of Delivery of Deed. Words or conduct which
evidence intention to make deed presently operative to vest title in grantee.
adequate description of the property.
River movement is either accretion or avulsion, determines river
boundaries of property; increase and decrease accretion (changes boundaries); avulsion
sudden change, doesn’t change boundaries
grantor signature

Risk of loss and equitable title. During the time between making of the contract
for sale and the closing various bad things can happen—the property can be destroyed or
damaged, or one or both of the parties may die. The common law reacted to these
possibilities by creating the notion of equitable title (or equitable conversion).

Equitable conversion. If a contract for the sale of realty is specifically

enforceable, the doctrine of equitable conversion operates to treat the buyer as the
equitable owner from the moment the contract becomes effective, even if title passes
later, as it almost always will.

Risk of loss goes with possession: Many states have enacted statutes that
make the risk of loss go with possession. See, e.g., Cal. Civ. Code, §1662 and the
Uniform Vendor and Purchaser Risk Act. Thus, despite equitable title, if the seller
remains in possession he assumes risk of loss.

Fraud. If fraud or deceit is employed to procure the initial certificate of title it can
be set aside by the true owner or, alternatively, the registered owner will be held to hold
in constructive trust for the true owner
Constructive trust. wrongdoing and ground to impose a constructive trust
Performance concerned with Formation.
Statute of Fraud. Contracts or memorandum if it must be in writing
Exception.
Part Performance
Satisfaction by Memorandum. Will satisfy the SOF if it contains the
names of the parties land to be conveyed, purchase price and the signature of the party to
be charged.
Performance. SOF and look for issues related to Title, Tender, and Time is of the Essence,
which are .
Title / Implied Warranty of Marketable Title.
Defects. The important defects include:
Reasonably Free from Defects.
 Quitclaim Deed.
Merges into Deed.
Marketable title -- reasonably free of doubt has no unreasonable risk of litigation
Color of Title. refers to a claim to title which appears valid, but may be
legally defective.
Tender. A party seeking specific performance must normally first tender
performance, unless there is an anticipatory repudiation.
Time is of the Essence. If there is a clause in the contract expressly
requiring timely performance, it will generally be enforced.
Formation Exceptions.
Part performance.
Acts by Vendor.
Acts by Purchaser.
Possession Plus Payment.
Improvements.
Unequivocally Referable Requirement.
Remedies / Risk of Loss. Both the Buyer and Seller may be entitled to
damages or specific performance. Specific performance elements are definite and certain
contract terms, feasibility, inadequate legal remedy, mutuality, and defenses.
Remedy. If specific performance:
1. An inadequate legal remedy.
2. Definite and certain contract terms.
3. Feasibility of fashioning a remedy.
4. Mutuality. And
5. No applicable defenses.
Risk of Loss.
Equitable Conversion.
Uniform Act.
Mortgages and Covenants for Title in Warranty Deed. Land-sale contract has met the
requirements of a valid contract, then it is often necessary to discuss post-closing issues
related to mortgages and covenants for title in warranty deed
Sale of Mortgaged Property.
Sale Subject to Mortgage.
Assumption.
Foreclosure.
Judicial Foreclosure. a judgment by a court to foreclose on a mortgage or deed of trust,
orders the real property to be sold to pay the debt
Private Foreclosure Sale. at which the property is sold to pay off the unpaid balance of
the loan.
Deeds.
Quitclaim Deed.
Warranty Deed.
Covenants for Title in Warranty Deed. Post-closing stage. Covenants of title in a
warranty deed protect only against title defects, and do not include a covenant for fitness
for intended use. Promises about state of ownership.
Seisin and Conveyance. Seisin: A person is seised if he holds an estate of freehold and
either has possession of the land or a tenant holds possession for him.
Against Encumbrances.
Quiet Enjoyment and Warranty.
Present Versus Future Covenants.
Present Covenants. Present covenants are breached when the covenant of
seisin, the covenant of the right to convey, and the covenant against encumbrances
Future Covenants. Future covenants are not breached until the grantee is actually or
constructively evicted, and include the covenant to quiet enjoyment, the covenant of
warranty, and the covenant of future assurances.
Statute of Limitations.
Enforcement.
Present Covenants.
Future Covenants.
Damages.
777
General Warranty Deed has 6 items which warrants the title sale.
a. Covenant of seisin: The grantor promises that he owns what he is conveying by
deed.

b. Covenant of right to convey: The grantor warrants that he has the power or
authority to convey the property.

c. Covenant against encumbrances: The grantor warrants that there are no liens,
mortgages, easements, covenants restricting, or other encumbrances upon title to the
property other than those specifically excepted in the deed.

d. Covenant of general warranty: The grantor warrants that he will defend against
lawful claims of a superior title and will compensate the grantee for any loss suffered by
the successful assertion of a superior title.

e. Covenant of quiet enjoyment: The grantor warrants that the grantee will not be
disturbed in his possession or enjoyment of the property.

f. Covenant of further assurances: The grantor promises to do whatever else is

reasonably necessary to perfect the conveyed title, if it turns out to be imperfect.

2. Special warranty deed: A special warranty deed contains the same six covenants
as the general warranty deed except the grantor warrants against defects of title that arose
during the grantor's holding of the title and not defects arising before the grantor's
ownership.

3. Quitclaim deed: A quitclaim deed contains no warranties of title whatever, so the

grantee interest in the property is the as what the grantor own, if any.
777
The Recording System. Generally only protect subsequent BFPs
First, discuss the different types of recording system statutes.
Then, discuss the parties which are protected under the recording statutes.
Finally, discuss the requirement of notice to subsequent claimants.
See *** type of recording language.
The different types of acts.
Pure Race Statutes. Whoever records first wins.
Pure Notice Statutes. A subsequent purchaser for value (subsequent bona
fide purchaser (BFP)) wins if, at the time of conveyance, that subsequent purchaser had
no actual, inquiry or constructive notice of the prior conveyance
Race-Notice Statutes. A subsequent purchaser for value wins if: (1) the
subsequent purchaser did not have actual, inquiry or constructive notice and (2) the
subsequent purchaser records before the prior purchaser. In short, subsequent BFP's win
only if they record before the prior purchaser
Not Recordable. Some types of interests are not recordable:
Adverse Possession.
Some Easements.
Short Leases.
Parties Protected. The subsequent grantee against a prior grantee.
Purchaser for Value. (or Bona fide purchaser (BFP) . is an innocent party
who purchases property without notice of any other party's claim to the title of that
property; if BFP takes property that has been fraudulently acquired, then BFP has good
title
Wild Deeds. deeds outside chain of title cannot be “noticed” easily
Shelter Rule. a subsequent grantee from a BFP prevails over a prior grantee who failed to
record by the time of the subsequent conveyance, even this the first grantee knew of the
prior instrument
Donee. Gift and not BFP
Less than Market Value.
Purchase From or Through Grantee.
Creditors.
Mortgage.
Judgment and Execution Creditors. is somebody as a result of the judicial
process gets a judgment entered against that party and looks to party’s property to fulfill
the judgment, only protects against subsequent creditor not prior
Eligible to be Recorded.
Must Record Whole Chain.
Notice to Subsequent Claimants.
Actual Notice.
Record Notice.
Defective Document.
Imputed Knowledge.
Chain of Title.
Inquiry Notice.
Reasonable person to inquire further.
Possession.
Timing of Notice.
 Purchaser from One Without Notice.
3. USE OF LAND.
Easements. A privilege to use the land of another, not possession.
There are three major areas to discuss under Easements:
Creation
Scope
Termination
Creation of Easement. An easement may be created in writing, -- Express Easement, an
ease maybe implied -- Implied Easement by Reservation / Grant or Necessity, and an
easement may be created through Prescription.
Types of Easements -- Forms of Creation. SOF
Express Easements. Created by a deed or will, must be in writing
due to the Statute of Frauds. May be "granted" or "reserved" and is typically included in a
document such as a deed or other officially recorded document.
Easement by Reservation.
Creation in Stranger to Deed.
Implied Easement. By Grant or Reservation. Must have common
ownership, prior use of the easement, and reasonable necessity and an easement may be
created through Prescription.
Easement Implied by Grant. Where grantee has the right to use the
easement.
Easement Implied by Reservation. Where grantor has the right to
use the easement.
Easements by Implication and Necessity. parcels without access to
a public highway may have an easement of access over adjacent land, if crossing that
land is absolutely necessary to reach the landlocked parcel.
Owned by single person and then divided
Strictly necessary
Quasi-easement. Prior use.
Easement by Necessity. Where easement over one parcel of
property is strictly necessary for the enjoyment of the other parcel of property. End of
necessity which gave rise to easement by necessity
Owned by single person and then divided
Reasonable necessary
Easement by Prescription. An easement through adverse
possession. implied easements that give the easement holder a right to use another
person's property; similar to Adverse Possession but the person doesn’t gain ownership of
the property.
When Statute Starts to Run.
Adverse Use.
Continuous and Uninterrupted.
Tacking.
Easement Appurtenant. two plots, servient and dominant.
Easement passes with the land regardless of whether mentioned in the conveyance
Easements In Gross. rights granted to use another’s property
independent of the ownership or use of another parcel of land
 Profit. take something off another person's land
Scope of Easement. examine the rights of the easement holder and the rights of owner
of the servient estate.
Affirmative Easements: The owner of the easement has the right to go
onto the land of another (servient land) and do some act on the land.
Negative Easements: The owner of a negative easement can prevent the
owner of the servient land from doing the same act on the servient land. These easements
are rare and four types recognized under common law; light, air, subjacent or lateral
support, or for the flow of an artificial stream.
Holder.
Limited right to use and transfer easement rights.
Based on reasonableness.
May be express restrictions.
Transfer of the Right of Way.
Easement Appurtenant Versus in Gross.
Distinction
Termination of Easement. determine if the easement has been legally terminated. Unless
otherwise stated (e.g., a right of way for ten years) in the written instrument, an easement
(like a fee simple) will last forever. However, there are some legally sanctioned means to
terminate an easement.
Sale of serviant estate by BFP (taking without notice) will terminate private
restrictions on profit, such as, easement, licenses, profit, covenant or servitude
Agreement to terminate by grantor and the grantee of the easement
Expiration of the time allowed for the easement
Holder.
Merger. where one person buys both dominant and servient tenement
Severance.
Abandonment or expressed intent to discontinue use of the easement. Abandon an
easement, the easement holder must demonstrate by physical action (e.g. removing a
path) his intention to permanently abandon the easement.
Destruction. May terminate an easement but right to rebuild/repair by benefit
owner
Surcharge. An additional charge for overuse of the easement.

Third-Parties.
Prescription. Prescription where a holder of the easement uses someone else to use the
easement for a period of statute of limitations
Estoppel. Where a holder of the easement stops making use of the
easement and a third party detrimentally relied on the stopped use
Estoppel by Deed (Personal Estoppel). if a grantor purports to
convey an estate that he does not own, his subsequent acquisition of the estate inures to
the benefit of the grantee

Licenses. A right to use licensor’s land which is revocable at the will of the licensor
(example, entry into a theater)
No Statute of Frauds.
 Exception to Revocability.
Oral License Acted Upon.

Profit. Profit or Profits in Gross: If the easement is nonexclusive, it cannot be

apportioned. Nonexclusive means that it is enjoyed by both the beneficiary and the
servient owner. If the easement is exclusive, it can be apportioned or divided by the
owner.

Equitable servitudes and covenants. running with the land are Restrictions on the Use of
Land owned by Another. Common law, enforcement by an injunction, then equitable
servitude. Enforce by a covenants and/or contract principles then damages. SOF (Statute
of Frauds. restriction in writing are barred from the court and restrictions must be in
writing except Implied Negative Recipicle Servitude, divide large estates into smaller
estates)

Equitable Servitudes.
Touch and Concern. (Running with Land) the Burden or benefit must deal
with the land.
Intent. If the intent of the dominant and serviant estate, if touch and
concern then intent
Notice to Subsequent Purchaser.
Actual Notice.
Recording notice.
No Privity.
Relief. Injunction
Covenants Running with Land. vertical and horizontal privity of estates for
burdens to run, and vertical privity for benefits to run
Touch and Concern (Running with Land) the Burden or benefit must deal
with the land.
Horizontal Privity. Privity when the original parties entered into the agreement
with the party sharing some interest in the land independent of the covenant
Vertical Privity. Privity between the original party to the covenant and the
subsequent owner.
Running with the land. is a nonpossessory interest and can either
be an agreement between landowners to do something (affirmative) or to refrain from
doing something (restrictive); however, a covenant can be terminated if the original
purpose of the covenant is lost
Intent. Is the intent of the dominant and serviant estate, if touch and concern then
intent
Notice to Subsequent Purchaser.
Actual Notice. Notice to Subsequent Purchaser.
Inquiry notice.
Constructive notice. Recording.
Privity. A covenant that doesn’t run with the land is personal and does not touch
and concern the land.
Privity between Promisor and Promisee / Horizontal Privity, then
 Running of Burden.
Running of Benefit.
Privity between Litigants / Vertical Privity then only
Running of Burden.
Defenses: Merger, release, abandonment, Estoppel, or Changed circumstances

Private Nuisance. unreasonable interference of the use and enjoyment of land. Lateral
and subjacent support issues relate normally when there is some kind of digging /
building, or some type of mining, within the fact pattern.
Substantial Interference.
Unreasonableness.
Remedies.
Lateral Support. landowner is strictly liable if the landowner changes the land so as to
withdraw lateral support. The excavating adjacent landowner is strictly liable for
damages caused by the excavation even if the land would have subsided in its natural
state.
Building.
Subjacent Support. if land would not have subsided but for a structure, then the normal
strict liability standard does not apply, a NEGLIGENCE standard thus applies

Structures Existing.
Subjacent support: This right becomes an issue only if the surface is owned by one
person and the right to mine underground is owned by another. The underground miner is
strictly liable for damages caused to land or structures resulting from withdrawal of
subjacent support
Water Rights / Riparian Rights. Depending on the state, the riparian doctrine is that
reasonable use allowed (eastern US) or natural uses prevail over artificial, first in time is
first in line (western US, state determines)
Streams and Lakes.
Common Law Riparian Rights. under which those who own land next to
water have rights to use the water.
Prior Appropriation Doctrine (western states). "first in time is first in line."
right to use scarce water from rivers and streams
Ground Water.
Air Rights.
Airplane Flights.
Direct Over-Flights.
Adjacent Areas.
Tall Buildings.
Right to Sunlight.

4. LANDLORD and TENANT.

Types.
Statute of Frauds. When there is no written instrument creating a term of years,
periodic tenancy, or a tenancy at will, problems will arise under the Statute of Frauds.
Modernly law there are no exceptions, an oral lease not complying with the Statute of
Frauds is void. However, entry by the tenant creates a tenancy at will.
Tenancy for Years. An estate that lasts for a fixed period of time. Some cases hold
that a tenancy for no fixed period which is terminable upon some event is a tenancy for
years.
Certain Term.
Automatic Termination.
Periodic Tenancy. no set ending date; continues until one party gives the other proper
notice.
Creation by Implication.
Termination. A periodic tenancy continues until proper notice of
termination is given. The notice can be oral or written as required by statute.
At-Will Tenancy. A tenancy at will is a tenancy with no stated duration that
endures only as long as both the landlord and the tenant desire until either the landlord or
tenant give notice of termination.
Tenancy at Sufferance. A tenant becomes a tenant at sufferance when the tenant
wrongfully remains in possession of the property after termination of the tenancy
Tenant’s Rights, Duties and Remedies.
Possession.
Quiet Enjoyment.
Interference by Landlord or Third Person.
Conduct by Other Tenants.
Constructive Eviction.
Condemnation.
Total Taking.
Partial.
Illegality.
Implied Warranty of Habitability. The implied warranty of habitability involves a
new home that has substantial defects. Not applicable in the sale of commercial buildings
or used homes
Waiver of Known Pre-Existing Defects. most states don’t use caveat emptor
(“buyer beware”) in favor of the seller to disclose defects to the buyer which are known,
discovered by buyer and serious.
Standards for Determining Habitability.
Remedies.
Terminate Lease.
Withhold Rent.
Use Rent for Repairs.
No Retaliatory Eviction. landlord may not terminate a tenant's
lease in retaliation for the tenant's reporting of, for example, a housing code violation
(usually with 90 to 180 of retaliatory event).
Destruction of Premises.
Duty to Pay Rent. Unless Landlord breaches one of their duties.
Subrogated. If landlord recovers from the assignor tenant the assignor
tenant is subrogated—succeeds to (moved into the position of)—the landlord's claims as
against the defaulting assignee tenant
 Duty to Repair.
Fixtures.
Right to Affix.
Right to Remove.
Unless Trade Fixture Doctrine
Duty to Behave Reasonably.

Landlord’s Rights, Duties and Remedies.

Failure to deliver possession – majority landlord duty to deliver possession of
property.
Eviction – actual eviction, Landlord or someone on behave physically removes
tenant from premises, and that terminates tenant duty to pay rent.
Surrender
Destruction
Security Deposits.
Interest.
Right to Keep.
Right to Receive Rent.
Eviction.
Eviction.
Partial eviction, landlord keeps the tenant off part of the leased property.
Tenant can stay on the remaining property without paying any rent.
Partial eviction by someone other than landlord — where this occurs, rent
is apportioned.
Express Forfeiture Clause.
Abandonment.
Accept Surrender.
Re-Letting on T’s Account.
Leave Vacant.

Assignment and Sub-leasing by a Tenant.

Assignment. Privity of estate. Transfer of entire interest in leased
premises, including entire length of term of lease.
Rule in Dumpor's Case, once an assignment is waived, it is waived
for the remainder of the lease.
Privity of estate. duty on the assignee to perform certain
obligations under covenant, e.g. pay rent. A Landlord is in privity of estate with tenant, if
the tenant assigns to another tenant, liable is only for covenants that run with the land.
Running of Benefit and Burden.
Touch and Concern Test
For tenant only benefit side. Increase the use
and enjoyment of premises. Successor in interest
Landlord. Burden run with the land
Intent from touch and concern.
Notice. (majority not required for benefit to run)
Privity. Will have vertical privity
 Normally Both or Neither.

Sublease. Transfer of less than entire interest.

Running of Benefit and Burden.
Touch and Concern Test.
For tenant only benefit side. Increase the use
and enjoyment of premises. Successor in interest
Landlord. Burden run with the land
Intent from touch and concern.
Notice. (majority not required for benefit to run)
Privity. Will not have vertical privity
Normally Both or Neither.
Rights After a Tenant Assigns.
Agreements about Assignments and Sub-leases
Prohibition on Lease.

5. CONCURRENT OWNERSHIP. two or more people own the same interest in

property. Elements are rights of survivorship, possession of the property, and whether or
not there are equal shares.

Joint Tenancy. Two or more people own a single, unified interest in property.
Four entities at same time: time, interest, title, possessory
Right of Survivorship
Possession.
Equal Shares.
Creation. Single instrument, and must be created in both or all joint tenants at the
same time.
Language Used. "To A and B as joint tenants with right of survivorship."
Severance.
Conveyance by one Joint Tenant.
Contrary to common law, which viewed leases as a severing conveyance, most
jurisdictions today hold that a lease by one joint tenant does not sever the joint tenancy. A
corollary to that conclusion is that a lease from one joint tenant endures no longer than
the life of the lessor joint tenant, even if the leasehold term purports to be longer.
Three or More Joint Tenants.

Tenancy in Common. Each tenant has a separate undivided interest.

No Right of Survivorship.
Unequal Shares.
Rebuttable Presumption of Equality.
Presumption Favoring.
Heirs. if the intestacy statute specifies that two persons are to take an equal
interest as co-heirs, they take as tenants in common.

Tenancy by the Entirety. Common law, conveyance to two persons who are
husband and wife.
 Usually Abolished.
No Severance.
Divorce.
Relations Between Co-Tenants. difficulties between themselves, possible issues:
Possession.
No Duty to Account.
Ouster.
Depletion.
Payments made by one tenant.
Partition.

6. VARIOUS LAND RIGHTS

Defenses
Implied reciprocal negative servitudes

Support Rights.

Water Rights. Using the reasonable use doctrine and domestic use is preferred over other
uses, a domestic use can be established at any time, and it is permissible even if it
interferes with existing non-domestic uses.
` Common reasonable use theory, downstream owners cannot enjoin an upstream
owner's use unless it substantially interferes with their needs.

Government Regulation / Zoning.

The Takings Clause.
Compensable Taking v. Regulation.
Zoning.
Historical and Environmental Preservation.
Eminent Domain. Condemnation where the government terminates easement
through eminent domain

Private nuisance is normally a torts issues, so it is rarely included on a property essay.

Water rights occur when someone is living on a body of water, common law riparian
rights doctrine used in most states, and the prior appropriation doctrine which is used in
many western states.

Air rights relate to airplane flights, building height and availability of sunlight.

7. ZONING AND OTHER PUBLIC LAND-USE CONTROLS ZONING AND OTHER

PUBLIC LAND-USE CONTROLS.
This section includes
There are two reasons that this section is not a heavily tested area on essays exams:
1. The takings clause relates to a Constitutional Law issue, so it is more heavily tested in
Constitutional Law essays.
2. The other doctrines in this section relate to municipal action, while most of the issues
in a property essay will relate to individuals.
Therefore, it is rare to find one of the above doctrines as an issue in a property essay
question. However, if present, it will often involve a zoning issue, so remember to discuss
legal limits on zoning, administration, and exclusionary zoning.

The Taking Clause. the taking clause, taking / regulation distinction, zoning, regulation of
subdivision and growth, historical and environmental preservation and eminent domain.
Compensable Taking v. Regulation.
Zoning.
Legal Limits on Zoning.
Exclusionary Zoning.
Historical and Environmental Preservation.
Eminent Domain. Eminent domain is also sometimes an issue, and remember to discuss
the public use and just compensation sub-issues of eminent domain.
Public Use.
Just Compensation.
The Takings Clause.
Compensable Taking v. Regulation.
Substantial Advancement of Legitimate State Interests.
Broad Range of Legitimate Interests.
Tight Means-End Fit.
Deprivation of All Use.
Physical Use.
Diminution in Value.
Zoning.
Use Zoning.
Density Controls.
Legal Limits on Zoning.
Constitutional Limits.
Takings Clause.
Procedural Due Process.
Equal Protection.
Exclusionary Zoning.
Equal Protection Law.
Effect vs. Purpose.
Standing.
Federal Statutory Suits.
Effect vs. Purpose.
Historical Preservation.
Districts and Landmarks.
Environmental Preservation.
Urban Park Land.
Wetlands and Coastlands.
Eminent Domain.
Public Use.
Just Compensation.
Highest and Best Use.
 Executory Interests

Springing Executory Interest - Example 1

To A for life, then to B and her heirs five years after A's death
A has a life estate in possession; O has a reversion in fee simple
subject to an executory interest; B has a springing executory
interest in fee simple absolute that will vest in possession five
years after A's death. See Note on Vesting. "To A" are words of
purchase; "for life" are words of limitation indicating that the
duration of A's estate is limited to A's lifetime. Because the O has
not transferred all of its estate to A, there are rights remaining in
O, a reversion in fee simple. The words, "five years after my
death," indicate that O does not intend B to have possession and
enjoyment of her estate immediately when A dies. Since B's
estate can not take effect as soon as A dies, it can not be a
remainder. Being a future interest in someone other than O (the
transferor), it must be an executory interest. Because B's estate
will cut short the fee simple estate in O, it is a springing
executory interest. It "springs" from O's estate at a future date
without the need for a new transfer of title from O because of an
earlier conveyance by O
Springing Executory Interest - Example 2

To B and her heirs five years after my death

O has a present fee simple in possession subject to a springing
executory interest; B has a springing executory interest in fee
simple absolute that will vest in possession 5 years after O dies.
"To B" are words of purchase, "and her heirs," words of limitation
indicating a fee simple absolute estate. The words, "five years
after my death," indicated that O does not intend B's estate to
take effect immediately upon O's death. Because B's estate will
cut short the fee simple that will be by held O's devisee, heir, or
a transferee from one of them five years after O's death, it is a
springing executory interest.
Other examples of springing executory interests include:

• To A and his heirs one day after my death

• To T in trust for The Fox Home for Wayward Law Students if
T incorporates the Fox Home within 5 years after my death
(transfer in a will)
• To A and his heirs when A gets married
Shifting Executory Interest - Example 1

To A and his heirs, but if A is not survived by children at his

death, to B and her heirs
A has a fee simple in possession, subject to an executory interest
in fee simple absolute in B. "To A" are words of purchase,
creating an estate in A immediately; "and his heirs" are words of
limitation creating a fee simple in A. "[B]ut if A is not survived by
children at his death" are words pf condition indicating a
situation which, if it occurs, will cut short A's fee simple estate
and transfer that estate to B. The condition is a condition
subsequent to A's estate since it describes an event that can cut
short an otherwise vested estate. "[T]o B" are words of purchase;
"and her heirs," words of limitation indicating an estate in fee
simple absolute. The conditional language describes an event
that operates as a condition precedent to the vesting of C's
executory interest. Most conditions subsequent are also
conditions precedent to another's interest. Because we classify
estates in the order in which the transferor created them (A's
interest, then B's interest, then C's interest, and so forth), the
condition is labeled by its effect on the first estate to which it
attaches, here A's estate.
 Shifting Executory Interest - Example 2

To A for life, then to B and her heirs, but if but if B should die
under the age of 25, to C and his heirs
A has a life estate in possession, B has a vested remainder in fee
simple subject to complete defeasance by an executory interest in
fee simple absolute in C. B's remainder is vested because (1) it can
become possessory immediately upon A's death, no matter B's age. B
need not reach 25 to take possession. However, if B does not reach
25, whether before or after A's death, C's executory interest will vest.
"To A" are words of purchase; "for life" are words of limitation showing
that the duration of A's estate is limited to A's lifetime. Because O has
not transferred all of its estate to A, there are rights remaining in O
which are transferred to B as the remainder. "To B" are words of
purchase, "and her heirs," words of limitation indicating that B will
enjoy the full estate, the fee simple absolute, when A dies. B's estate is
vested because B must do nothing else before A dies to enjoy the
estate. "[B]ut if B should die under the age of 25" are words of
condition. Because the happening of the condition will terminate a
future interest or possessory estate presently vested in B, the condition
that B not reach 25 is a condition subsequent as to B's interest. That is,
it will operate to cut off the interest B owns. This same condition is a
condition precedent to C's enjoying the estate; it must be satisfied
before C can claim the interest. "To C" are, again, words of purchase
indicating that C may take an interest or estate if B dies before
reaching the age of 25; "and his heirs" are words of limitation
indicating that, if C ever does take the estate C (or a transferee from C)
will hold the estate in fee simple absolute. If B dies before reaching 25
while A is alive, the executory interest in C will divest or cut off B's
vested remainder. If B is under 25 when A dies, B's interest will vest in
possession as a fee simple estate. However, should B then die before
reaching 25, C's executory interest will cut short B's estate and C will
have possession of an estate in fee simple absolute. C's executory
interest is a shifting executory interest because the title to the future
interest or the estate after A's death can shift from B to C. A vested
remainder subject to complete defeasance is always followed by a
shifting executory interest in another person. Other examples of
springing executory interests include:

• To A and his heirs, but if B ever returns from Bolivia, to B

and her heirs
• To A for life and then to B and her heirs if B gives A a
suitable burial, to B and her heirs
 Real Covenants (Damages) Equitable Servitudes (Injunctive relief) Easements

Burden Benefit Burden Benefit Both

Intent? Required Required Required Required Might matter.

Must burden touch and Yes No Yes No Always does

concern land? by definition.

Must benefit touch and Split Yes Split Yes Generally no. But split
concern land? (re in gross) for certain cases.

Horizontal privity? Required Split Not required Not required Not required

Vertical privity? Required Relaxed test (only Not required Not required Not required
AP cannot pass it)
Notice? Required for buyers Not required Required Not required Required for buyers
under race-notice or for buyers under statutes for burden
notice statutes (actual/construct.) to run

FI/3rd parties
PE (Present FI/G (future
Estates) interest/grantor)
1. FSA (entire bundle of sticks) None None
2. FT (only valid in 4 states) Reversion ---
3. LE, life estate Reversion (remainder in the Remainder (vested and
grantor) contingent)
4 a. FSD, fee simple Possibility of Reverter ---
determinable (“for so long as”) (automatically kicks back to
grantor)
b. FSSCS, fee simple subject Right of Entry (must ---
to condition subsequent (“on the affirmatively take back property,
condition of”) not automatic like FSD)
c. FSSEI, fee simple subject to --- Executory Interest
executory interest
Subject to rule against perpetuities

***

"No conveyance of real property shall be good and effectual in law or equity against
subsequent purchasers for value and without notice, unless the same be recorded
according to law."
The recording statute is a "notice" statute, because it protects all subsequent purchasers
without actual knowledge of a prior interest

"Every conveyance of real estate which shall not be recorded shall be void as to any
subsequent purchaser for value and in good faith, whose conveyance shall be first duly
recorded."
race-notice statute; it protects a subsequent purchaser for value who has no notice of the
prior interest ("in good faith"), only if the subsequent purchaser records her interest
before the prior interest is recorded.