Property I

Question 1

Private Land v. Free Speech Rights

Answer 1

The courts in the majority view hold that free speech protects citizens from governmental actions, but not from actions of private parties such as the owners of shopping centers or apartment complexes.

The minority view recognizes the rights of expressive activity on private land for public use, such as shopping centers. According to Schmid, three factors are considered:

• (1) the normal use of the property;
• (2) the extent and nature of the public’s invitation to use it; and
• (3) the purpose of the expressional activity in relation to both the property’s private and public use.

Question 2

Lease v. License

Answer 2

Characteristics of a lease:

• Occupies a fixed space
• Occupied space is clearly set off from the rest of the establishment
• Lessor has little control over operation or employees
• Agreement uses terms such as “tenant” or “lessee”
• Money paid to occupy is referred to as “rent”

Characteristics of a license:

• Space occupied can be moved at the will of the licensor
• Occupied space is indistinctly set off from the rest of the establishment
• Licensor has much control over operation and employees
• Agreement uses “licensee” or equivalent term
• Money paid to occupy is referred to as something other than “rent”

Question 3

Interference at Commencement (Minority/American)

Answer 3

Under the minority rule, or the “American” rule, it is up to the tenant to deal with any trespasser or holdover tenant. The landlord’s implied grant of the legal right to possession does not include a promise to deliver actual possession. Under the minority rule, a tenant dealing with a holdover tenant still has to pay rent without physical possession, but their situation can be remedied by suing the holdover tenant for damages.

Question 4

Interference at Commencement (Majority/English)

Answer 4

Under the majority rule, or the “English” rule, it is up to the landlord to deal with any trespasser or holdover tenant. The tenant must provide the landlord with notice and allow a “reasonable” amount of time for the landlord to remove the holdover. If the landlord fails to do so, the tenant has the right to terminate the lease and sue for damages. Alternatively, the tenant may withhold rent until physical possession of the property is obtained.

Question 5

Covenant of Quiet Enjoyment

Answer 5

A breach of the covenant of quiet enjoyment occurs when the landlord substantially interferes with the tenant’s beneficial use or enjoyment of the premises. Even if not substantial enough to rise to the level of a constructive eviction, such interference may entitle the tenant to damages. The covenant is implied in all commercial and residential leases. Through the covenant, the landlord assures the tenant that his quiet enjoyment of the premises will not be deprived by the landlord or any third party (such as one with paramount title) during the term of the lease agreement. Tenant must provide the landlord with notice of the breach, and allow a “reasonable” amount of time to fix it.

Remedies → When CQE has been breached, tenant may stay on the property and sue for damages or settle for reduced rent.

Damages for general breach → The difference between the value of what the tenant should have received and what the tenant actually received. Special damages for moving/storage expenses may also be available if there is a partial actual eviction or constructive eviction.

Examples: failure to supply hot water or heat, or failure to make major repairs.

Question 6

Partial Actual Eviction

Answer 6

A partial actual eviction occurs when the landlord deprives the tenant of physical possession of an appreciable portion of the leased property, including denial of access to the leased premises. The rationale is that the landlord conveyed exclusive use of the premises to the tenant for the term, and may not evict the tenant from any portion of the premises during said term. Landlord must be given notice and a “reasonable” amount of time to remove the encroachment.

Remedies:

• Under the majority view, the tenant can choose to stay on the property and withhold rent. Alternatively, the tenant can move off the property and terminate the contract.
• Under the minority view, traditional contract principles are adopted to measure damages. For example, if it has been determined that the landlord has encroached on 10% of the leased premises, 10% of the rent shall be withheld.

Question 7

Constructive Eviction

Answer 7

A constructive eviction occurs when the landlord so deprives the tenant of the beneficial use or enjoyment of the property that the action is tantamount to depriving the tenant of physical possession. The conduct must amount to such a major interference that a reasonable person would conclude that the premises are uninhabitable. In such a situation, the tenant must provide the landlord with notice of the defect or condition and allow a “reasonable” amount of time for the landlord to fix the problem. After this “reasonable” amount of time has expired, the tenant must immediately vacate the premises, as failure to do so may act as a waiver of the tenant’s rights to claim constructive eviction.

Remedies → Tenant who is constructively evicted must vacate the premises and may withhold rent or terminate the lease.

Question 8

Implied Warranty of Habitability

Answer 8

Under the implied warranty of habitability, it is a covenant that, at the inception of the lease, there are no latent defects in facilities vital to the use of the premises for residential purposes because of faulty original construction or deterioration from age or normal usage. Further, these facilities will remain in usable condition for the entire term of the lease. In performance of this covenant, the landlord is required to maintain the “bare living requirements” and make sure that the premises are fit for human occupation. The defect must be substantial (code violation; effect on tenant’s health/safety), and the landlord must have notice of the defect and must be given a reasonable amount of time to repair it.

Remedies → Once a landlord has breached his duty to provide habitable conditions, the tenant can: (a) repair and deduct, (b) stay and withhold, (c) stay and sue for damages, or (d) treat lease as breached and move out.

Damages:

• One way to determine the amount of abatement the tenant is entitled to is simply referred to as the “difference money” approach. For example, if the tenant is deprived of the use of the basement because of the conditions, abatement would be the rent for a similar house without a basement.
• Under the “percentage diminution” approach, the court will determine the percentage by which the tenant’s enjoyment and use of the premises has been reduced, and will allow the tenant’s recovery to reflect that percentage.

Question 9

Implied Warranty of Suitability

Answer 9

According to the minority, there is an implied warranty of suitability in commercial leases. This warranty means that at the inception of the lease, there are no latent defects in the facilities that are vital to the use of the premises for their intended commercial purposes, and that these essential facilities will remain in a suitable condition for the duration of the lease term. Tenant must provide landlord with notice of the defect and a reasonable amount of time to repair the defect. Remedies and damages are the same as for the implied warranty of habitability.

According to the majority, there is no implied warranty of suitability for commercial tenants because courts under this view believe that commercial tenants have more equal footing with landlords than residential tenants do.

Question 10

Tenancy for Years

Answer 10

Any lease for a fixed or computable period of time with a fixed start and end date.

• Created by express agreement of the parties.
• Terminates automatically without notice at the end of the specified term.
• Death of either party does not terminate.

Question 11

Periodic Tenancy

Answer 11

Continues for successive periods until terminated and is automatically renewed.

• Created by express agreement of the parties, or can be inferred from facts.
• Notice is required to terminate.
• Death of either party does not terminate.

Question 12

Tenancy at Will

Answer 12

No designated period of time.

• Created by express agreement of the parties or inferred from the circumstances.
• Terminated at the will of either party at any time without notice, but a “reasonable” time to vacate must be provided.
• Can be terminated by death of either party, when the landlord conveys the property, or when the tenant attempts to assign the property.

Question 13

Tenancy at Sufferance

Answer 13

Results when a tenant originally in rightful possession under a valid lease “holds over” after his lease expires, falling just short of being a trespasser.

Right to possession is based on landlord’s neglect. The landlord can either choose to evict the tenant, or treat the hold over as an election to extend the lease for another period or term. A growing number of jurisdictions imply the creation of a month-to-month periodic tenancy rather than a full lease extension.

Question 14

Landlord Tort Liability for Personal Injuries (Common law approach)

Answer 14

At common law, subject to a few exceptions, a landlord had no duty to make the premises safe. Today, there are exceptions for negligence:

• (1) The landlord was liable if he contracted to make certain repairs, failed to make the repairs although he could have made them if he had used reasonable care, and the plaintiff was injured because of the failure.
• (2) The landlord was liable if he knew or should have known of a dangerous condition that the lessee did not know of or have reason to know of, failed to warn the lessee, and the lessee or those on the land with the lessee’s consent were injured by this condition.
• (3) Provides for landlord liability in certain cases involving premises open to the public such as theaters.
• (4) A landlord was responsible for injuries suffered as a result of defects in that part of the premises over which he retained control, if he failed to exercise reasonable care to keep that part of the premises safe.

Question 15

Landlord Tort Liability for Personal Injuries (Modern trend)

Answer 15

Increasingly, the courts are simply holding that landlords have a general duty of reasonable care with respect to residential tenants, and that they will be held liable for personal injuries of tenants and their guests resulting from the landlord’s ordinary negligence, without regard to the exceptions discussed above. This duty is ordinarily not imposed until the landlord has notice of a particular defect and a reasonable opportunity to repair it.

• (1) Defects Arising After Tenant Takes Possession → A landlord will generally be held to have notice of defects that existed before the tenant took possession. However, the landlord will not be liable for defects arising after the tenant takes possession unless there is evidence that the landlord actually knew or should have known of them from a reasonable inspection.
• (2) Legal Duty to Repair → If the landlord has a statutory duty to repair, he may be liable to the tenant or the tenant’s guests for injuries resulting from his failure to repair. Some courts hold that violation of the housing code (or similar statute) is negligence per se, but most courts hold that it is merely evidence of negligence, which the jury may or may not find conclusive.
• (3) Security → The landlord’s implied warranty of habitability obliges him to furnish reasonable safeguards to protect tenants from foreseeable criminal activity on the premises, including the common areas of multiple dwellings.

Question 16

Fair Housing Act

Answer 16

The Fair Housing Act prohibits discrimination because of race, color, national origin, disability, or familial status in the sale or rental of housing by:

• (1) refusing to rent or make available any dwelling;
• (2) offering discriminatory terms, conditions, or privileges of rental;
• (3) making or publishing any notice or advertisement that indicates any preference or discrimination; and
• (4) representing to any person that a dwelling is not available for rent when such dwelling is in fact available.

Exemptions → A landlord is exempt if she is offering to lease a unit in a building of four units or less, one unit of which she occupies. In this case, it is not illegal to discriminate, but it is illegal to advertise the discrimination.

Views → States are required to follow the Fair Housing Act, but may expand upon it if they so choose. States follow either a restrictive or illustrative view of the act.

• Under the restrictive view, landlords are only prohibited from discriminating against tenants on the specific bases laid out in the act. They may discriminate against groups that are not explicitly protected.
• Under the illustrative view, the law prohibits all arbitrary forms of discrimination. Landlords may still be liable for discrimination if they deny tenancy to a group that is not explicitly protected by the act.

Question 17

Assignment v. Sublease (Majority)

Answer 17

Under the majority, the only factor used to distinguish between an assignment and a sublease is the duration of the transfer from the sublessor/assignor to the sublessee/assignee. If the transfer is for the remainder of the lease term, it is an assignment. If the transfer is for anything short of the remainder of the lease term, it is a sublease.

Question 18

Assignment v. Sublease (Minority)

Answer 18

The minority view considers the intentions of the parties that agreed to the transfer, as well as the circumstances surrounding them. It follows that there are distinct characteristics of both assignments and subleases that the court will consider.

Characteristics of an assignment:

• Transfer is for remainder of lease term
• Rent is paid from assignee to landlord
• Rent paid by assignee is the same as tenant’s
• Agreement refers to itself as “assignment”

Characteristics of a sublease:

• Transfer is for less than remainder of lease term
• Rent is paid to sublessor, who pays that rent to landlord
• Rent paid by sublessor is more than tenant’s (sublessor makes profit)
• Agreement refers to itself as “sublease”

Question 19

Privity of Contract

Answer 19

Privity of contract refers to the lease agreement between two specific parties.

• In both assignments and subleases, privity of contract is between the landlord and the tenant/transferor, and between the transferor and the transferee. There is no privity of contract between the transferee and the landlord because there is no agreement made between the landlord and the transferee.
• The only way for a tenant to get out of privity of contract is through a novation, in which the landlord agrees to terminate the original contract in favor of the transfer.

Question 20

Privity of Estate

Answer 20

Privity of estate refers to the transferor’s/transferee’s right to be on the property. It operates simultaneously and independently from privity of contract.

• In an assignment, privity of estate is moved from being between the landlord and the tenant/assignor, to between the landlord and the assignee. This is because the assignor no longer has any right to be on the property because he has transferred all of his rights to the assignee. The assignor still has privity of contract with the landlord, however.
• In a sublease, privity of estate is between both the landlord and the tenant/sublessor, and between the sublessor and the sublessee. In this situation, the sublessor retains his privity of estate because he still has the right to be on the property once the sublease has expired, since he has not transferred all of his rights through the sublease.
  
  • Reversionary Interest → Refers to the interest of the party that takes the property back once the transfer is over. Any sublessor has a reversionary interest in the property because possession goes back to him once the sublease has expired.

Question 21

Remedies for Unpaid Rent from Transferee

Answer 21

If the transfer is an assignment, and if the assignee does not pay rent, the landlord can go after either the assignor (under privity of contract) or the assignee (under privity of estate), or he can go after both.

• If the landlord decides to go after the assignor, the assignor can then sue the assignee to be reimbursed under privity of contract between them.
• Unless there is a novation, the first tenant can always be held liable through privity of contract, no matter how many assignments there are. Following assignees are only liable for as long as they have privity of estate.

If the transfer is a sublease, and the sublessee does not pay rent, the landlord can only go after the sublessor, because there is neither privity of contract nor estate between the landlord and the sublessee, but there is both between the landlord and the sublessor.

• In such a case, the sublessor has the right to sue the sublessee for reimbursement, because he has both privity of contract and estate with the sublessee.

Question 22

Tenant’s Right to Transfer (Majority)

Answer 22

Where a lease requires a tenant to obtain the prior written consent of the landlord to sublet or assign leased premises, a landlord may refuse consent arbitrarily, unless the lease contains a clause specifically stating that the landlord may not unreasonably withhold such consent. The landlord may give a good reason, a bad reason, or no reason at all.

Question 23

Tenant’s Right to Transfer (Minority)

Answer 23

Where a lessee is entitled to assign or sublet under common law, but has agreed to limit that right by first acquiring the consent of the landlord, the lessee has a right to expect that consent will not be unreasonably withheld. Factors to be considered in determining whether a lessor has acted reasonably and with good faith in withholding consent to an assignment or subletting of a lease include:

• (1) financial responsibility of the proposed transferee;
• (2) the transferee’s suitability for the particular property;
• (3) legality of the proposed use;
• (4) need for alteration of the premises; and
• (5) the nature of the occupancy.

Question 24

Surrender and Acceptance

Answer 24

Under the doctrine of “surrender and acceptance,” when a tenant surrenders the premises to a landlord before a lease term expires and the landlord accepts that surrender, the tenant is no longer in privity of estate with the landlord and therefore has no obligation to pay any rents accruing after the date of the acceptance.

• The issue in applying this doctrine is whether the landlord intended to accept the surrender. This intention may be express or implied. The doctrine of surrender treated a landlord who re-entered the premises without properly preserving his rights as having “accepted” the tenant’s “offer” to surrender the premises, and therefore, having waived any right to additional damages. In response to the surrender doctrine, many leases contain a provision permitting a landlord to relet the premises “for the tenant’s account” upon the tenant’s abandonment.

Question 25

Landlord Remedies (Traditional)

Answer 25

Under the traditional rule, the minority rule, a landlord with a breaching tenant has three options:

• (1) Wait for the lease term to expire without attempting to mitigate the damages and sue the tenant for a lump sum.
• (2) Agree to relet on the tenant’s account without accepting the surrender. This can only be done if a proper provision was included in the original lease agreement. By doing this, the landlord retains privity of contract with the tenant, and may still sue the tenant after attempting to mitigate.
• (3) Accept the surrender and attempt to mitigate. If a liquidated damages provision is included in the lease, the landlord may be able to hold the tenant liable for a certain amount of rent after the surrender, whether or not he has successfully mitigated. In Florida, for example, a landlord may recover up to 2 months rent from a breaching tenant regardless of mitigation efforts.

Question 26

Landlord Remedies (Trend)

Answer 26

Under the trend rule, the majority rule, landlords have a duty to mitigate damages which arise out of a tenant’s default. Once the tenant defaults, the landlord has a duty to make a good faith effort, expending reasonable effort and diligence, to relet the property. A “good faith” effort does not require that the landlord seek to relet the surrendered premises first, hire a real estate agent, or attempt to relet at the same price. However, those factors may be considered.

• (1) If the mitigation efforts are successful, the landlord may choose to accept the surrender if the new tenant is paying more rent than the breaching tenant, in an effort to bar the original tenant from having a claim for the difference in rent. Currently, there is a split in authority regarding whether the landlord or the breaching tenant will be awarded the difference in rent if the new tenant is paying more.
• (2) If the landlord is unsuccessful in mitigation, assuming a good faith effort, he may recover from the breaching tenant. The retained jurisdiction approach allows the landlord to obtain a judgement soon after the tenant’s breach; but rather than requiring the institution of an entirely new suit to collect future rents, it permits the court to retain jurisdiction over the parties and the subject matter and enter new damage awards as additional rents accrue.

Question 27

Fee Simple Absolute

Answer 27

Refers to a normal purchase, with ownership for a potentially unlimited amount of time and with no strings attached.

• Created by phrases such as “O to A and heirs” or “O to A.”
• Grantor has no future interest.
• Hint → “. . . and heirs” will always activate a fee simple, not a life estate.

Question 28

Fee Simple Determinable

Answer 28

An estate that will end automatically at the happening of a condition. It happens automatically because the condition is a durational marker set at the beginning.

• Created by words of duration, such as “so long as,” “until,” “while,” or “during.”
• Grantor’s future interest is a possibility of reverter. No notice of termination is required once the condition is met. If the condition is never met, it is treated as a fee simple absolute.
• Hint → Limiting words will be placed before the first punctuation mark.

Question 29

Fee Simple Subject to a Condition Subsequent

Answer 29

The estate is not limited by duration, but rather by a condition which will give the grantor the right to take the property back once it is met.

• Created by conditional phrases, such as “on the condition that,” “provided that,” “but if,” or “however.”
• Grantor’s future interest is a right of reentry, also called a power of termination.
• Hint → Limiting words will be placed after the first punctuation mark.

Question 30

Fee Simple Subject to an Executory Limitation

Answer 30

Limited by a condition, but instead of the property going back to the grantor, it will go to a third party when the condition is met.

• Created by phrases such as “until . . . then to” or “but if . . . then to.”
• Grantor has no future interest. Third party will have an executory interest.

Question 31

Life Estate

Answer 31

Property is granted to someone for life.

• Created by “O to A for life.”
• Grantor’s future interest is a reversion.
• Life estates are alienable, meaning they can be sold to someone else.
• A can sell to B, but when A dies, B will be removed from the property.
• “Pur autre vie” → Life estate for the life of another.
• Note: life estates can be determinable, subject to a condition subsequent, or subject to an executory limitation as well.

Question 32

Reversion

Answer 32

Created when the grantor conveys an inherently limited possessory estate (life estate, term of years) and, in the same conveyance, retains the future interest rather than conveying it to a second grantee.

• “O to A for life, then to O.”
• Can only follow life estates and terms of years.
• In contingent remainders, O gets reversion if the remainder is not met.

Question 33

Remainder

Answer 33

A future interest created when a grantor conveys an inherently limited possessory estate (life estate, term of years) and, in the same conveyance, conveys future interest to a second grantee (third party).

• “O to A for life, then to B and heirs.”
• Vested Remainder → Given to an ascertained person, and the words of condition will not include a condition precedent (other than the natural termination of the estate). A person is ascertained if they are born or identified.
• Contingent Remainder → Given to an unascertained person, or the words creating the remainder contain a condition precedent (in addition to the natural termination of the estate). A person is unascertained when they are unborn or unidentified. Since heirs cannot be identified until the grantee dies, “to heirs” creates a contingent remainder.
  
  • A condition precedent is a condition other than the ending of the prior estate that must be met before the remainder is ready to become possessory. It is an unmet condition that is set out in the description of the estate and must be satisfied before that estate can become possessory.

Question 34

Possibility of Reverter

Answer 34

Grantor has the possibility of reverter when words of duration are used, in a fee simple determinable.

• A possibility of reverter means possession is automatically given back to the grantor when the condition is met.
• Recall that placement of punctuation must be after the creation of the limitation.

Question 35

Right of Reentry

Answer 35

Given to the grantor when words of condition are used, in a fee simple subject to a condition subsequent.

• Grantor must take measures to take back possession of the property. Therefore, the grantor has the option of terminating.
• Recall that placement of punctuation must be before the creation of the limitation.

Question 36

Executory Interest

Answer 36

Given to a third party whose possession depends on a condition being met, in a fee simple subject to an executory limitation.

• Shifting Executory Interest → Simply goes to another transferee upon the condition being met.
• Springing Executory Interest → Possession follows a gap in time during which no transferee has the right to possession.
  
  • For example, “to C and heirs, if C returns from France.”

Question 37

Uniform Principal and Income Act

Answer 37

The act is followed by at least 39 states. Under the act, a life tenant is entitled to income earned on the property, but is not entitled to proceeds from the sale of the property. Similarly, a life tenant is responsible for ordinary maintenance, but not permanent repairs.

Question 38

Waste

Answer 38

Waste may be defined to be any act or omission of duty by a tenant which does a lasting injury to the freehold, tends to the permanent loss of the owner of the fee, to destroy or lessen the value of the inheritance, to destroy the identity of the property, or to impair the evidence of the title.

• Under the English common law approach, a life tenant may not alter the property in a substantial way, even if it increases the value of the property.
• Under the majority approach, an action in waste is only warranted if the alterations made by the life tenant reduce the value of the property.

Question 39

Permissive Waste

Answer 39

Failure to take reasonable care of the estate. Includes failure to make minor repairs and not paying property taxes.

• Statute of limitations is continuous, meaning that it does not start to run until the death of the life tenant.

Question 40

Commissive (Voluntary or Affirmative) Waste

Answer 40

Affirmative act that significantly reduces the value of the property, such as demolishing a house on the property.

• Statute of limitations starts when the injury is committed.

Question 41

Ameliorative Waste

Answer 41

An affirmative act that leads to a substantial change in the property and increases its value, such as building a swimming pool.

• Not enforceable in the U.S., unless there is an express agreement saying otherwise.

Question 42

Waste Remedies

Answer 42

(1) Specific Performance → Pay the taxes, make the repairs, etc.

(2) Enjoin the Waste → Injunctive relief, enjoining the tenant from continuing to damage the property.

(3) Monetary Damages → May be awarded if the value of the property has decreased.

(4) Forfeiture of the Life Estate → Only in extreme cases.

Question 43

“Open Mine” Doctrine

Answer 43

The open mine doctrine permits a life tenant (does not apply to other freehold estates) to commit commissive waste by depleting resources if the mines were open at the time the tenant took possession of the land. The life tenant can only use mines already in existence and cannot open new ones. The life tenant also may not deplete more of the resources than the interest that he owns.

Question 44

Options

Answer 44

Options give the buyer the power to determine when a sale will occur. The optionee will have the power to compel the owner of the property to sell at a stipulated price whether or not the owner wants to. Options are a unilateral contract. This gives the holder of the option the right to purchase the property at a specified time for a specified price. The holder usually has to pay some form of consideration for the option, such as an increased rent. Options are also called “lease options.”

Question 45

Right of First Refusal

Answer 45

The right of first refusal gives the holder the right to purchase the property before it is sold to a third party. The holder of the right is referred to as the “preemptioner.” There are three types of rights of first refusal:

• (1) The preemptioner may be allowed to purchase the property at a fixed price if the property owner, his heirs, or assigns should ever desire to sell. A right of first refusal at a fixed price inhibits alienability since, with the passage of time, the fixed price often will bear no relationship to the property’s actual market value.
• (2) A second type of right of first refusal permits the preemptioner to purchase the property at “market value” if the owner, his heirs, or assigns should ever desire to sell. A right of first refusal to purchase at market value also affects a substantial restraint on alienability, because a potential purchaser’s offer might exceed the market value.
• (3) The third type of right of first refusal permits the preemptioner to purchase the property at a price equal to any bona fide offer that the owner, his heirs, or assigns desire to accept. In this situation, however, many prospective purchasers, recognizing that a matching offer from a preemptioner will defeat their bids, simply do not bid on the property. This in turn will depress the property’s value and discourage the owner from attempting to sell. Moreover, even a right of first refusal tied to a bona fide offer may constitute an unreasonable restraint on alienation if the right is of unlimited duration.

Question 46

Terms to Consider for Right of First Refusal

Answer 46

Important terms for the right of first refusal to consider are:

• (1) consideration;
• (2) the owner has decided to sell, and received an offer from a third party;
• (3) the requirement for notice of the offer given to a holder;
• (4) the time period for the holder to accept the offer; and
• (5) closing.

Question 47

Right of First Refusal Validity Test

Answer 47

In determining the validity of a preemptive right, a court must take into consideration its (1) duration, (2) price, and (3) purpose for which it was imposed.

• For example, a preemptive right for unlimited duration and at a substantial discount from any third party offer that would be unjustified for a business purpose is unenforceable.

Question 48

Tenancy in Common

Answer 48

“To A and B” creates a tenancy in common, which is the form favored by the law currently.

• Tenants in common have an undivided interest in the property. This means that neither tenant can exclude the other from any portion of the property. There is no requirement that the interest is equal. The interest is presumed to be equal absent intent to create unequal interests.
• Tenants in common do not have a right of survivorship. A deceased tenant’s share will transfer to his or her heirs upon death.
• Interests in a tenancy in common are alienable (can transfer), descendable (death without a will), and divisible (death with a will).
• Jurisdictions in the United States will view the tenancy as a tenancy in common over a joint tenancy if there is any type of ambiguity. This is because joint tenants can turn their estates into tenancies in common at any time, without the knowledge of the other joint tenants. Under the traditional common law approach, an ambiguity created a joint tenancy.

Question 49

Joint Tenancy

Answer 49

“To A and B, as joint tenants, and not as tenants in common.”

• Main difference from a tenancy in common is that each tenant has a right of survivorship. Under this right, the remaining joint tenant or tenants take share of the property that the deceased joint tenant had, as if the property had come directly from the grantor. A right of survivorship is destroyed if a joint tenant transfers his interest.
• Unlike tenants in common, joint tenants always have an equal undivided interest in the property. Once again, each tenant may use the whole of the property.
• Joint tenancies are alienable, which means that joint tenants are free to transfer their interest. When this happens, the transferee has a tenancy in common, and the remaining joint tenants still have a joint tenancy. Joint tenancies are not descendable or divisible.
• A right of survivorship will always trump a will. This is because a joint tenant’s interest can only be transferred as a tenancy in common while the tenant is living. A will without a transfer will not create a tenancy in common for the transferee.
• Requires the four unities to be met. Failure to meet any one of the unities creates a tenancy in common.
  
  • (1) Unity of Time → All tenants must take their interest at the same time.
    
    • This was traditionally circumvented by the use of a straw person.
  • (2) Unity of Title → All tenants must take their interest from the same source (deed, will, grant, etc.).
  • (3) Unity of Interest → All tenants must have equal and identical interest in the property.
  • (4) Unity of Possession → All tenants must have a possessory interest in the whole.

Question 50

Tenancy by the Entirety

Answer 50

“To A and B, husband and wife, as tenants by the entirety.”

• Tenancy by the entirety can only exist between husband and wife. Neither may exclude either from any part of the property.
• Most American jurisdictions maintain some form of tenancy by the entirety.
• Both tenants have a right of survivorship and an equal interest in the property.
• The modern rule is that creditors of an individual spouse may not reach any property that the debtor spouse holds as a tenant by the entirety. This is to protect the non-debtor spouse.
  
  • Joint tenants do not have this protection.
• Tenancies by the entirety cannot be converted into tenancies in common by the unilateral act of just one of the tenants.
• Husband and wife are considered to be one person. Married couples cannot partition a tenancy by the entirety.
• Also requires the four unities to be met, plus a unity of person, achieved only through marriage.

Question 51

Community Property

Answer 51

“To A and B, husband and wife, as community property.”

• Only ten states recognize community property.
• Like tenancies by the entirety, community properties can only exist between husband and wife. Neither may exclude the other from any part of the property.
• At least half of one tenant’s interest must go to the other spouse upon death.
• In order to have a right of survivorship, it must be clearly intended by the parties.
• Community property is made up of what is accumulated during the marriage.

Question 52

Partitioning Concurrent Estates

Answer 52

(1) Voluntary Partitioning → If all co-tenants agree to divide a piece of property, such a division is permissible. Grantor may forbid partitioning of the estate, but it is rare.

• Can be either a division in kind or division in sale.

(2) Partition by Judicial Proceeding → Joint tenants and tenants in common have the right to demand a partition in most jurisdictions. Co-tenants may defend by saying that the demanding co-tenant has not agreed to exercise the right. Results in two kinds of partitions:

• (a) Division in Kind → Preserves the estate and gives each tenant a possessory interest in part of the estate. Owelty is money paid to a tenant with the smaller interest in a divided estate, if it cannot be divided equally.
• (b) Division in Sale → Usually happens when the property cannot be divided, such as when all of the property’s value is in a house that is on the property. Proceeds are split according to each tenant’s interest in the property.

Question 53

Possession (Concurrent Estates)

Answer 53

Each co-tenant has the right to possess all portions of the property; no co-tenant has the right to exclusive possession of any part. A co-tenant out of possession cannot bring a possessory action unless there has been an “ouster” by the tenant in possession. A claim of right to exclusive possession can constitute an ouster.

Question 54

Liability for Rent and Profits (Concurrent Estates)

Answer 54

The Statute of Anne requires a co-tenant who receives rent from a third party to account for it to the other co-tenants. Under the prevailing common law, a co-tenant, in the absence of an ouster, need not account for the rental value of his own possession, nor does he have to share profits gained by his use of the property. A minority position requires a co-tenant to account for both rent derived from a third party as well as the value of a co-tenant’s own possession.

Question 55

Remedy for Ouster (Concurrent Estates)

Answer 55

Under the unity of possession, each co-tenant is entitled to possess and enjoy the whole of the property subject to the equal right of her co-tenant. If one tenant wrongfully excludes another co-tenant from possession of the whole or any part of the whole of the premises, there is an ouster. The ousted co-tenant is entitled to receive his share of the fair rental value of the property for the time he was wrongfully deprived of possession. If an ousted co-tenant fails to bring an action in ejectment, he risks losing his title to the property to the ousting co-tenant through adverse possession.

Question 56

Liability for Repairs (Concurrent Estates)

Answer 56

A co-tenant in sole possession who makes necessary repairs upon the property generally is not entitled to seek contribution from his other co-tenants, absent an agreement to the contrary. In such instances, the occupying co-tenant’s value of possession is regarded as the proper compensation. If co-tenants cannot agree on the propriety of repairs, or on any other matter involving the property, the appropriate remedy is partition. Nevertheless, cases do reveal that in an action for rents and profits, and in the accounting component of a partition action, a co-tenant who has expended funds for reasonably necessary repairs will be credited with such expenditures.

Question 57

Liability for Improvements (Concurrent Estates)

Answer 57

With respect to improvements, a co-tenant can neither compel contribution from the other co-tenants nor receive credit for such expenses in an action for rents and profits. Nevertheless, the co-tenant who made the improvements generally will receive the full monetary value of any improvements in an action for partition. This can be accomplished, where possible, through a physical division of the property in which the part which has been improved is awarded to the co-tenant funding the improvements. Where such a physical division is not possible, the property will be sold, and the co-tenant paying for the improvements will receive an additional amount representing the increase in value due to the improvements.

Question 58

Conveyance (Partition)

Answer 58

A conveyance by one joint tenant of her undivided interest destroys the joint tenancy so that the transferee takes the interest as a tenant in common and not as a joint tenant.

• When property is held in joint tenancy by three or more joint tenants, a conveyance by one of them destroys the joint tenancy only as to the conveyor’s interest. The other joint tenants continue to hold in joint tenancy as between themselves, while the grantee holds her interest as a tenant in common with them.

Question 59

Liens (Partition)

Answer 59

In most jurisdictions, when a plaintiff obtains a money judgment against a defendant, that judgment becomes a lien on the defendant’s real estate in the county where the judgment is docketed. The lien then “runs with the land,” burdening it until the judgment is paid or until the lien expires under a statute of limitations. Suppose such a lien is obtained against one of several joint tenants but not against the others. Does it sever the joint tenancy, converting it into a tenancy in common?

• The majority view, “lien theory,” is that it does not; a lien is not considered a sufficiently substantial “conveyance” to destroy the unities of time and title. However, if the plaintiff who obtained the judgment then proceeds to enforce it by foreclosure (often termed a “judgment sale”), the sheriff’s deed issued to the buyer at that sale will sever the joint tenancy. That follows from the fact that the sheriff’s deed conveys the defendant’s full title. Under lien theory, debts will die when the debtor joint tenant dies.
• Under the minority view, “title theory,” a lien will sever a joint tenancy. Under title theory, a debt will stay on the land even when the debtor joint tenant dies.

Question 60

Mortgages (Partition)

Answer 60

In the majority of states, a mortgage is regarded as a lien on title, and one joint tenant’s execution of a mortgage on her interest does not by itself cause a severance. Rather, the severance occurs only if the mortgage is foreclosed and the property sold. But in the minority of states, which regard a mortgage as a transfer of title, the transfer destroys the unity of title and severs the joint tenancy.

Question 61

Leases (Partition)

Answer 61

Theoretically, when one joint tenant leases her interest in jointly held property, the lease destroys the unities of interest and possession and thereby should affect a severance (which is the view taken by some states). But other states hold that the joint tenancy is not destroyed, and is merely temporarily suspended (for the length of the lease).

• Death of Lessor → There is a split among the states following the latter view, on what happens if the lessor joint tenant dies before the end of the lease. Some courts hold that because the lessor’s own right to possession would cease on her death, so must the right of any lessee (i.e., the lessor could not convey more than she had). Others hold that the lease operates as a “temporary severance,” and the remaining joint tenant’s survivorship rights are therefore postponed until the end of the lease.

Question 62

Profit v. License

Answer 62

A profit or “profit-à-prendre” is the right to take materials off the land of another. Easements generally apply to profits.

A license is permission to go on the land of another. A license can be oral or in writing, and can be terminated at the will of the possessor.

Question 63

Affirmative Easements

Answer 63

Affirmative easements entitle the holder to enter upon the servient tenement and make an affirmative use of it for such purposes as laying and maintaining utility lines, draining waters, and polluting the air over the servient estate. The right-of-way easement is another instance of an affirmative easement. Thus, an affirmative easement privileges the holder of the benefit to make use of the servient estate that, absent the easement, would be an unlawful trespass or nuisance.

• Courts generally prefer affirmative easements because if one land is burdened, another land should be benefitted.

Question 64

Negative Easements

Answer 64

A negative easement does not grant to its owner the right to enter upon the servient tenement. It does, however, entitle the privilege holder to compel the possessor of the servient tenement to refrain from engaging in activity upon the servient tenement that, were it not for the existence of the easement, he would be privileged to do. Traditionally, courts recognized negative easements only for (1) light, (2) air, (3) subjacent or lateral support, and (4) for the flow of an artificial stream. Today, new negative easements may also include conservation easements, historic preservation easements, or solar easements.

• Lateral support → Prevents from digging close enough to the land to have an effect on it.

Question 65

Easement Appurtenant

Answer 65

In an easement appurtenant, the benefits to be realized by the easement must be directly beneficial to the possessor of the dominant tenement in his physical use and enjoyment of that tract of land. It is not sufficient that the easement makes use of the land more profitable.

Question 66

Easement In Gross

Answer 66

An easement in gross is created where the holder of the easement interest acquires a right of special use in the servient tenement independent of his ownership or possession of another tract of land. In an easement in gross, the easement holder is not benefited in his use and enjoyment of a possessory estate by virtue of the acquisition of that privilege. There is no dominant tenement. An easement in gross passes entirely apart from any transfer of land. Generally, an easement in gross is transferable only if the easement is for a commercial or economic purpose.

• If an easement interest is created and its owner holds a corporeal (possessory) estate that is or could be benefited in physical use or enjoyment by the acquisition of the privilege, the easement will be deemed appurtenant. This is true even though the deed creating the easement makes no reference to a dominant tenement.

Question 67

Easement By Express Grant

Answer 67

An easement can be created by conveyance. A grant of an easement must comply with all the formal requisites of a deed. An easement is presumed to be of perpetual duration unless the grant specifically limits the interest.

Question 68

Easement By Express Reservation

Answer 68

An easement by reservation arises when the owner of a tract of land conveys title but reserves the right to continue to use the tract for a special purpose after the conveyance. In effect, the grantor passes title to the land but reserves unto himself an easement interest.

• Note that, under the majority view, the easement can be reserved only for the grantor; an attempt by the grantor to reserve an easement for anyone else is void. There is a growing trend to permit reservations in third parties, but it remains a minority view.

Question 69

Statute of Frauds (Easements)

Answer 69

Because an easement is an interest in land, the Statute of Frauds applies. To comply with the Statute of Frauds, an easement must:

• (1) be in writing;
• (2) identify the parties;
• (3) describe the servient and dominant land (if any);
• (4) describe the exact location of the easement on the servient land; and
• (5) state the purposes for which the easement may be used.

Question 70

Easement Language

Answer 70

If the language is clear and unambiguous, it is given effect. Where such factors as the width, length, and location of the easement are fixed by the granting instrument, a court may not consider any other factors, such as what is necessary and reasonable to the effective use of the easement, in interpreting the extent of the easement. However, a judicial finding that an easement’s language is unambiguous does not mean that the parties–or even other judges–agree on the language’s meaning.

If the grant does not expressly and clearly set forth some aspect of the easement’s scope, the court will look to the intentions and reasonable expectations of the parties. Unless it can be shown that the parties intended otherwise, the holder of the easement is entitled to use the servient estate in a manner that is reasonably necessary for the convenient enjoyment of the servitude. In determining the intent of the parties, courts consider the language used by the grantor in light of the surrounding circumstances.

Question 71

Easement Length, Width, and Location

Answer 71

When the instrument creating the easement fails to fix these factors, but merely establishes a right of way over a particular area, the easement is generally construed to extend over so much of that area as is reasonably necessary to effect the purpose of the easement. The easement does not necessarily encompass the entire area mentioned in the easement.

Under the majority rule, once the location of an easement is fixed, it cannot be moved without the consent of the owners of both the servient and dominant estates.

Question 72

Easement Type, Frequency, and Intensity of Use

Answer 72

The general rule is that an easement owner’s use of the easement for purposes that differ from or exceed the expressly authorized purposes of the easement is a trespass and is not allowed. However, there is a distinction between new modes of uses and new or additional uses.

In the absence of express language to the contrary, the grantor and grantee of an easement are assumed to have contemplated a normal increase in the frequency and intensity of the use of the easement over the years. Where the easement is appurtenant, this increased use must be the result of a normal development of the dominant estate. Such increased use will be permitted as long as no unreasonable additional burden is placed upon the servient estate.

• Note the difference between a change in the intensity of the use and the type of use.

If the partitioning of the dominant estate was a normal and foreseeable change in the use of the property, the owner of each part can use the easement, as long as no unreasonable additional burden is placed upon the servient estate.

Question 73

Easement Relocation

Answer 73

In the majority of jurisdictions in the United States, neither the owner of the dominant nor servient estate may unilaterally relocate the easement once it has been fixed.

A small number of jurisdictions follow a different rule. The servient estate is permitted to relocate an easement, provided that the relocated easement affords the dominant estate benefits that are substantially similar to those that the dominant estate enjoyed under the original easement. This is a growing modern trend, adopted by the restatement.

Question 74

Easement Use for Non-Dominant Land

Answer 74

The standard rule is that the owner of an appurtenant easement cannot use the easement, nor permit its use, for the service of land which was not part of the dominant estate at the time the easement was created. Such a use is considered a trespass. Courts will not terminate an easement for misuse by the dominant estate owner. Only injunctive relief may be granted to the servient estate owner.

Question 75

Easement Maintenance and Repair

Answer 75

In the absence of an express provision in the written instrument governing easement maintenance and repair obligations, the easement owner is assumed to have a duty to make those repairs necessary so as not to interfere with the servient owner’s use and enjoyment of his property. Similarly, the easement owner has the right to make such repairs and improvements as are required to accomplish the purpose of the easement, as long as she does not unreasonably increase the burden on the servient estate. The owner of the servient estate has no such repair or maintenance obligations.

Question 76

Servient Estate Owner’s Duties

Answer 76

The servient estate owner has a duty to refrain from interfering with the easement owner’s enjoyment of her rights. However, since the easement owner is not entitled to exclusive possession of the burdened portion of the servient estate, the servient owner can use his property in whatever manner he chooses, so long as he does not hinder the use and enjoyment of the easement.

Question 77

Succession of Appurtenant Easement to Dominant Estate

Answer 77

Absent an express provision in the deed stating otherwise, an appurtenant easement is presumed to be transferred with the dominant estate. The benefit of the easement runs with the land unless the terms of the transfer or the terms of the creation of the easement preclude the benefit from running.

Question 78

Succession of Appurtenant Easement to Servient Estate

Answer 78

If the servient estate is transferred, the burden of the easement runs with the land so as to be enforceable against the successors of the servient estate if the original parties intended that it run and the successor of the servient estate has notice of the easement. If no contrary intention is expressed in the granting instrument, courts presume the parties intended the burden to run.

If the successor to the servient estate purchases the servient estate without notice of the easement, under most modern recording statutes the easement will be extinguished and the new owner will not be subject to the burden of the easement. For an appurtenant easement to pass with purchase, the purchaser must: (1) be a bona fide purchaser and (2) have notice of the easement. Types of notice include:

• Inquiry Notice → Easement is obvious based on the land’s location or appearance.
• Constructive Notice → Easement has been recorded in public records, even if the purchaser doesn’t know of its recording.
• Actual Notice

Question 79

Succession of Easements In Gross

Answer 79

Restatement (Modern View) → An easement in gross will not pass when the owner of the easement sells his or her land. Instead, for the benefit of the easement in gross to pass to a successor of the grantee, the easement must be assigned. Under the restatement view, all easements in gross are assignable unless the parties did not intend the easement to be assignable, or the assignment would offend some important public policy.

Older View → If the primary purpose of the easement is to gain economic benefit, the easement is deemed commercial in nature and there arises a rebuttable presumption that it is assignable. If the primary purpose of the easement is to gain personal satisfaction, the easement is deemed non-commercial in nature and there arises a rebuttable presumption that it is not assignable.

Question 80

Doctrine of Changed Conditions

Answer 80

The Third Restatement of Servitudes permits an easement to be terminated–where changed conditions exist–because the easement has become unreasonably burdensome upon the servient estate, obsolete, or economically wasteful. This is known as the doctrine of changed conditions and is not accepted by all courts.

Question 81

Release (Express Easement Termination)

Answer 81

An easement may be terminated by a release given by the owner of the easement interest to the owner of the servient tenement. A release requires the concurrence of both owners and is, in effect, a conveyance. The release must be executed with all the formalities that are required for the valid creation of an easement.

Question 82

Abandonment (Express Easement Termination)

Answer 82

An easement can be extinguished without conveyance where the owner of the privilege demonstrates by physical action an intention to permanently abandon the easement. The oral expressions of the owner of the easement that he does not intend to use the easement again by themselves are insufficient to constitute an abandonment of the easement. Similarly, nonuse itself is not considered sufficient evidence of an intent to permanently abandon the easement. Note, however, that oral expressions may be sufficient if accompanied by a long period of nonuse.

Question 83

Prescription (Express Easement Termination)

Answer 83

An easement is extinguished by a use of the servient tenement by the possessor of it which would be privileged only if the easement did not exist, provided that:

• (1) the use is adverse as to the owner of the easement; and
• (2) the adverse use is, for the period of the prescription, continuous and uninterrupted.

Sufficient Acts → The burden of establishing adverse acts is quite high. Courts tend to distinguish between temporary and easily removable improvements (not sufficient) and permanent and expensive improvements that are difficult and damaging to remove (sufficient).

• Note: Some jurisdictions do not allow the prescriptive period to begin to run until the easement owner attempts to use the easement.

Question 84

Merger (Express Easement Termination)

Answer 84

When the easement holder acquires ownership of the servient estate, he gains rights of use greater than those held pursuant to his easement. As a result, the lesser rights are swallowed up by the greater rights. This is the process of “merger.”

• Note: Possession that is limited (life estate, term of years, etc.) will merely suspend the rights of the easement for the duration of the estate.

Question 85

Estoppel (Express Easement Termination)

Answer 85

An easement is extinguished when action is taken by the owner of the servient tenement inconsistent with the continued existence of the easement, if:

• (1) such action is taken in reasonable reliance upon conduct of the owner of the easement;
• (2) the owner of the easement might reasonably have foreseen such reliance and the consequent action; and
• (3) the restoration of the privilege of use authorized by the easement would cause unreasonable harm to the owner of the servient tenement.

Question 86

Easements Implied by Prescription

Answer 86

Prescriptive easements are created by actual use of another’s land in a way one might use an easement, which is:

• (1) open and notorious;
• (2) hostile to the other’s ownership interest; and
• (3) continuous for the statutory period.

One cannot obtain an easement by prescription if they had permission for the use of the land. In such instances, the use is no longer hostile to the other’s ownership interest.

Question 87

Easements Implied by Prior Use

Answer 87

An easement implied by prior use is created if:

• (1) there is common ownership of land followed by subdivision and separation into several estates;
• (2) the purported easement was constructed by the common owner so that it is an open, obvious, and visible benefit to one estate and a burden on another;
• (3) the purported easement was used long enough before the division of the land to show that it was intended to be permanent; and
• (4) the purported easement is reasonably necessary for the full use and enjoyment of the dominant estate.

In general, the necessity requirement for an easement implied by prior use requires a showing of need which, by definition, may be less than that required to use an easement by necessity, but something more than simple convenience.

Question 88

Easements Implied by Necessity

Answer 88

The requirements for finding an easement by necessity are (1) an original unity of ownership of the claimed dominant and servient estates, and (2) the existence of the necessity at the time of severance. There are two approaches for determining the existence of the necessity:

• Majority (Restatement) Approach → Access over the servient parcel must be reasonably necessary. Specifically, the use needs to be slightly more necessary than the reasonably necessary requirement to establish an easement by prior use.
• Minority Approach → The necessity must be an absolute necessity, such as the dominant parcel being landlocked.

Note: The rights of usage will terminate once the necessity disappears. If the necessity disappears and reappears, the rights are not brought back automatically.