Real Property

Question 1

What is the header statement on adverse possession?

Answer 1

Under adverse possession, possession for the statutory period can create title to real property.

Question 2

What are the 5 ways to acquire land?

Answer 2

Adverse possession
Land sale contract
Security interest in land through mortgage
Deed (e.g., by gift)
Conveyance (by will)

Question 3

What are the 4 elements of adverse possession?

Answer 3

(1) Actual and exclusive
(2) Open and notorious
(3) Hostile
(4) Continuous for the statutory period

Question 4

Define actual and exclusive

Answer 4

Adverse possessor must use the property exclusive of the true owner and of the public although one can rent the property (and stay on it)
An adverse possessor can only gain land on the land they occupy while under color of title, where the adverse possessor was conveyed title but the deed was not valid, the possessor will claim the whole property, unless the true owner is living on a portion of the property.

If typical owner would only use property in summer, adverse possessor may also use property seasonally.

Question 5

Define open and notorious

Answer 5

Entry must be so open and notorious that it would put a reasonable owner on notice of the trespass

Question 6

Define hostile

Answer 6

Possession must without the owner’s consent.

Boundary dispute, ouster, and a claim of right are sufficient.

Question 7

Define continuous through the statutory period and tacking.

Answer 7

Once the statutory period starts, the owner cannot reenter, or else the period starts over. When the period passes, the possessor can file an action to quiet title.

Tacking is allowed, where a possessor can add the time of another possessor to meet the period, so long as the two are in privity. Transfer must be voluntary; abandonment or forceful removing insufficient and restart SoL time

Question 8

Define tolling/disabilities.

Answer 8

The Statute of Limitations will not run against a true owner who has a disability (e.g., minor, incompetent) at the inception of the adverse possession. Disabilities cannot be added.

Answer 9

Adverse Possession and Future Interests
Rule: Statute of limitations does not begin to run until a grantor asserts his right of rentry, because until that time, the grantee’s continued possession of the land is proper.

When Real Covenant in Play
* If an adverse possessor uses the land in violation of a real covenant, she takes title free of the covenant even if she had knowledge of it. However, if she complies with the covenant for the statutory period, she takes title subject to the real covenant.

Exam Tip – Adverse possession fact triggers
 Attempted transfer of property that is ineffective and the purported new owner acts like an owner (contract fails to meet SOF, deed not property delivered, etc.)
 Fact pattern includes events occurring 15 to 20 years in the past
 Seasonal use of a property, such as a vacation home or hunting cabin
 Building is placed over the property line and onto neighbor’s land

Question 10

What is the 2 step process in a land sale contract?

Answer 10

(1) Land Sale Contract where the seller conveys equitable title
(2) Closing where the seller conveys legal title

Step 1: The land sale contract, which conveys equitable title. The land contract endures until Step 2.

Time in between Step 1 and Step 2
* Buyer investigates seller’s title and if defective, buyer must notify seller and give seller opportunity to cure
* Risk of loss on buyer

Step 2: Closing (where the deed passes legal title and becomes the operative document).
* Seller provides form to buyer notifying buyer of any physical defects of which seller is aware. Failure to disclose a known defect makes seller liable for defect after closing. No duty to disclose visible defects.

Step 3: Buyer records deed to protect her title against a subsequent purchaser for value.

Question 11

What happens when title passes from the seller to the buyer?

Answer 11

The land sale contract is extinguished along with the implied covenant of marketability. Only basis for a suit after title passes is by suing on the deed and any express covenants therein.

Recall the 6 possible covenants
* Seisin
* Right to convey
* Encumbrances
* Quiet enjoyment
* Warranty
* Further assurances

Question 12

What does the Land Sale Contract require and what is the exception?

Answer 12

A land sale contract must contain the essential terms - parties, price, and an adequate description of the party, and be signed by the party to be bound, in order to satisfy the Statute of Frauds.
Time is typically not of the essence in real estate contracts.

Exception - court may enforce an oral contract if partial performance is met
Payment + [Possession or Improvements]

Question 13

Define marketable title.

Answer 13

The seller promises to provide marketable title at closing which is title free from reasonable doubt of litigation. The covenant is extinguished at closing and any promises merge into the deed (under the doctrine of merger).

Question 14

Examples of unmarketable title

Answer 14

• A violation of a zoning ordinance (even if the government hasn’t imposed liability, because the government has the power to do so)
• Easement that reduces value to the buyer
• Easement that is unknown to the buyer
• A significant encroachment
• Mortgages: Exception: Seller may satisfy a mortgage at closing with the land sale proceeds.
• Liens
• Landowner with future interest on the land (e.g., possibility of reverter)
• Covenants

Question 15

Examples of still marketable title

Answer 15

• A visible easement that is known to the buyer
• A beneficial easement to the buyer, like a utility easement
• A very slight encroachment onto an adjacent landowner’s land
• An encroachment where the owner encroached upon indicated that he will not sue on it
• An encroachment that has existed for so many decades that it has become legal by adverse possession
• Mortgage that is not satisfied by closing (because the mortgage runs with the land and will encumber the title in the hands of the buyer)

Question 16

What is the rule on mortgages and the closing? What right does the seller have?

Answer 16

A seller has the right to satisfy a mortgage or a lien at closing with the proceeds of the sale. Thus, prior to closing, the buyer cannot claim that title is unmarketable because it is subject to a mortgage so long as the mortgage is paid off by closing.

Question 17

Define the doctrine of equitable conversion

Answer 17

Under the doctrine of equitable conversion, equitable title passes to the buyer at the time of the signing of the land sale contract. At this time, any risk of loss passes to the buyer unless the contract provides otherwise. This means that if the property is destroyed (through no fault of either party) or if either party dies, the real property belongs to the buyer.

Question 18

What must the buyer do if they determine the seller’s title is not marketable?

Answer 18

The buyer must notify the seller and give the seller reasonable time to cure defects, even if this requires extending the closing date, and even if time is of the essence.

Question 19

If the seller fails to cure marketable title, what are the buyer’s 3 options?

Answer 19

(1) Rescind the contract
(2) Sue for damages
(3) Obtain specific performance (and also obtain a pro rata abatement of the purchase price)

Question 20

What is the relationship between a quit claim deed and marketable title?

Answer 20

None. The quitclaim deed does not remove an implied covenant to provide marketable title

Question 21

What option does the seller have if the buyer walks away from the contract and the seller has offered to cure?

Answer 21

Obtain specific performance

Exam Tip: Avoid answer choices referring to the implied covenant of marketability if the closing has passed. After deed changes hands, seller is no longer liable on this implied covenant. The seller is then liable only for express promises made in the deed.

Question 22

Exam Tips - Marketable Title

Answer 22

• Encumbrances, such as outstanding mortgage or lien (but seller has until escrow closes to pay it off)
• Record chain of title indicating seller does not have a full interest in the property to convey
• Easement that reduces “full enjoyment” of the premises
• Use restrictions, such as real covenants
• Rule regarding visible and known encumbrances is different for the real estate contract (pre-closing) and the deed (post-closing). For real estate contracts, purchaser is presumed to have contracted to accept the land subject to visible easements (and therefore such easements do not impair marketability). For deeds, covenants against encumbrances is breached even if the grantee knew of the encumbrance.

Question 23

Define a deed.

Answer 23

A deed is a document that serves to pass legal title from the grantor to the grantee.

Question 24

If you define a deed, what are the other rules you are going to list?

Answer 24

What happens under doctrine of merger
What terms are required in a land sale contract
Whether oral conditions are binding when the deed is passed

Question 25

What are the rules about oral conditions during the time the deed is passed?

Answer 25

When the grantor delivers a deed directly to the grantee, any oral conditions are not binding.
When the grantor delivers a deed to a third party, oral conditions are binding, and title will transfer only when the condition is satisfied.

Question 26

What are the 3 requirements for a deed to be valid?

Answer 26

The 3 requirements for a valid deed are:
(1) Identification of the parties;
(2) In writing and signed by the grantor;
(3) Adequate description of the party

• No consideration is required (may be an inter vivos gift)
• Difference between conveyance by deed and a land sale contract is that in a land sale contract, consideration is required.

Question 27

What are the 2 requirements for valid delivery of a deed?

Answer 27

(1) Words of intent to transfer land (e.g., word ‘transfer’ is sufficient; AND
(2) Acceptance (presumed).

o A deed does not have to be physically delivered; it comes down to question of intent.
o If grantor retains possession of deed, presume delivery failed. If grantee in possession of deed, delivery presumed.
o Delivery also presumed if acknowledged by grantor in front of a notary or recorded.
o Title passes immediately upon proper delivery and is then not revocable
o Recording is NEVER required for a deed to be valid

Question 28

Exam Tip - Deeds and PER

Answer 28

All types of evidence, regardless of timing, are admissible to prove the grantor’s intent to pass title.

Question 29

Ambiguities in the deed

Answer 29

• Insufficient description of the land: Title is not transferred.
• Description is ambiguous (rather than vague or inadequate), outside Parole Evidence will likely be admitted.
• Land description left blank: Deed is void unless grantee explicitly given authority to fill in the description.
• Name of grantee left blank: Court presumes person taking delivery has authority to fill in the name of the grantee. If the grantee fills in a name, the deed is valid.
• Delivery: If the condition is that the grantee survives the grantor indicates that the grantor does not intend to part with anything until death. Thus, there is no delivery.

Question 30

What is the rule on instructions given to a third party about delivery of the deed?

Answer 30

• Delivery to a third party with instructions on delivering deed is sufficient
• Delivery to a third party without instructions is sufficient only if third party is the agent (lawyer insufficient)

Also recall, deeds may be effective to convey property even if recorded after the grantor’s death

Question 31

Deed Delivery – Exam Fact Triggers

Answer 31

• Handing the deed to a third party with instructions
• Placing the deed somewhere, such as a locked box

Question 32

What are the 3 main types of deeds?

Answer 32

(1) Quit claim deed
(2) General warranty deed
(3) Special warranty deed

Question 33

What is a quit claim deed?

Answer 33

In a quit claim deed, the grantor makes no covenants. The grantor is not responsible for issues that arise after closing. However, a quit claim deed does not remove the implied covenant of marketable title.

Question 34

What is the opening sentence on the general warranty?

Answer 34

A general warranty deed contains 6 covenants, which the grantor makes on behalf of himself and prior titleholders.

A present covenant is breached only at delivery while a future covenant is breached if the grantee is disturbed in possession.
o EXAM TIP
 Look for a warranty deed issue where there is an undisclosed easement.

Question 35

What are the 6 covenants?

Answer 35

(1) Seisin
(2) Right to convey
(3) Covenant against encumbrances
(4) Warranty of quiet enjoyment
(5) Warranty of title
(6) Warranty of further assurances

Question 36

What are the 3 covenants breached at the time of delivery of the deed and what does each mean?

Answer 36

(1) Covenant of Seisin: That grantor has the interest he is conveying
(2) Covenant of the right to convey: That grantor has the right (e.g., capacity) to convey the property.
(3) Covenant Against Encumbrances: That grantor warrants there are no servitudes or mortgages on the land (even if purchaser had notice of them)

Question 37

What are the 3 future covenants that are breached in the future?

Answer 37

(1) Covenant of Quiet Enjoyment: Grantor promises grantee will not be disturbed by someone with a third party claim
(2) Warranty of Title: Grantor promises to defend grantee should there be any lawful third party claims
(3) Further assurances: Grantor promises to do whatever is reasonably necessary to perfect title if it later turns out to be imperfect

Question 38

What is a special warranty deed?

Answer 38

The grantor covenants against title defects created by the grantor.

Question 39

What are the 2 promises in a statutory special warranty deed?

Answer 39

(1) Covenant of seisin
(2) Covenant against encumbrances

Question 40

What is the difference between a voidable and a void deed? Listen only

Answer 40

A void deed will be set aside by the court even if the property passed to a BFP
* Examples: Forged deeds, deeds never delivered, issued to a nonexistent grantee, obtained by fraud
* Situation: Joint tenant forges other tenants names. Conveyance works as a severance. Buyer holds TIC w joint tenant whose signature was forged.

A voidable deed will be set aside only if the property has not passed to a BFP
* Examples: Executed by minors or incapacitated persons, and those obtained through fraud/duress/undue influence/mistake/breach of fiduciary duty.

Question 41

What are the damages for title issues?

Answer 41

Damages awarded are the lesser of either the purchase price or the cost to defend the title

Question 42

What are the damages for encumbrances?

Answer 42

Damages awarded are the lesser of two
Difference between contract price and value of land with encumbrance
or
cost of removing encumbrance

Question 43

Defenses - listen

Answer 43

Defined: Defenses to breaches of covenants can include:
* Unclean hands
* Laches
* Waiver
* Note: similar to land sales contract defenses

Question 44

Define recording acts.

Answer 44

A recording act regulates the recording of deeds and other interests in property. Recording acts also determine priority between parties claiming interest in the same property.
Under the common law, without a recording act in place, first in time, first in right, applied.

Note: If someone records a conveyance, then a BFP issue can never arise because notice would exist and BFPs must take without notice.

Question 45

Which 5 instruments for interest in land does a recording act apply to?

Answer 45

 Conveyances
 Mortgages
 Life estates
 Restrictive covenants
 Easements

Question 46

What is the rule for a pure race jurisdiction?

Answer 46

In a pure race jurisdiction, whoever records first wins. Actual notice is irrelevant and you will not see the word notice in the act, like you do for the other two acts.

“A conveyance…is not valid against the subsequent purchaser, unless the conveyance is recorded first”

Question 47

What is the rule for a pure notice act?

Answer 47

In a pure notice jurisdiction, the subsequent BFP who records wins.

Whichever BFP enters last, wins.

“No conveyance…shall be good…against a subsequent purchaser for value…without notice…unless the conveyance is recorded”

Question 48

In a race notice jurisdiction, an individual is protected if they are a BFP and if they record first.

Answer 48

Language: “No conveyance…shall be good…against a purchaser for value…without notice (A), AND whose conveyance is first recorded (B)”

Look for the word “and”

Question 49

What is the rule to remember regarding recording acts and donees, heirs, and devisees, and what is the exception called and define it

Answer 49

Recording acts do not protect donees, heirs, and devises because they don’t take “for value” unless the Shelter Rule applies.

Shelter Rule: One who takes from a BFP, will prevail against any entity that the transferor BFP would have prevailed against. In other words, the transferee “takes shelter” in the status of his transferor, and thereby “steps into the shoes” of the transferor.

Question 50

What are the 3 ways to provide notice and define each?

Answer 50

(1) Actual - literal knowledge
(2) Inquiry - what a reasonable inquiry would have discovered, where inspecting the property is considered a reasonable inquiry step.
(3) Constructive - what a search of the chain of title (public records) would have shown

Note
- Presence of 3rd party on property sufficient
- Deed reference to unrecorded instrument sufficient
- Absence of grantor deed from chain of title sufficient, because grantee should insist on seeing it

Question 51

What is a wild deed?

Answer 51

A wild deed is recorded but not connected to the chain of title and thus is incapable of giving constructive notice. The last person will win.

Question 52

Define estoppel by deed.

Answer 52

If one purports to convey interest in property (that he does not own), and then he later obtains the interest, the grantor will be estopped from denying the validity of the first conveyance.
* Estoppel by deed does not apply to a transfer by quit claim deed.

Question 53

Exam Tips

Answer 53

Exam Tip on Notice: The issue of “notice” can arise in several ways:
* Recording acts
* Sale to a BFP as a defense to an easement (especially inquiry notice)
* Equitable servitudes (including implied reciprocal servitudes)
* Real covenants (for burden to run with the land)

Also, recall on Quitclaim Deeds
 Grantees are not charged with some kind of notice just because the grantor gives them a quit claim deed.

Question 54

What is the general rule for conveyance by a will?

Answer 54

Property may be conveyed by will at the testator’s death. A will is only effective upon death.

Question 55

What is ademption?

Answer 55

If, at the testator’s death, the testator no longer owns the specific property that was devised, the gift fails, and the planned beneficiary gets nothing.

Question 56

What is lapse?

Answer 56

A lapse occurs when the beneficiary of a gift in a will dies before the testator.

Question 57

What is the common law and modern law rule for lapse?

Answer 57

Under the common law, if a gift lapsed, the gift was void. Under the modern law, if a gift lapses, the beneficiary’s living descendants take the gift.

Question 58

What is the majority and minority rule regarding liens or mortgages on one’s property when the will is executed?

Answer 58

Under the majority rule, the will must expressly provide who pays for the encumbrance.
Under the minority rule, exoneration applies, where the one who receives the estate is exonerated and does not have to pay off the encumbrance, rather the estate pays it off first.

EXAM TIP
* Intersection of wills and real property for a cross-over question.

Question 59

When does abatement occur?

Answer 59

When the estate assets are not sufficient to pay all claims and satisfy all bequests.

Question 60

What is the order of priority with respect to how gifts are abated / prioritized?

Answer 60

(1) Property passing by intestacy
(2) Residuary estate
(3) General legacies
(4) Specific devises and requests

Question 61

How are conflicts of law treated for real property and personal property as it relatese to wills?

Answer 61

For real property, state in which property is located applies.
For personal property, state in which testator is domiciled at time of death applies.

Question 62

Define a mortgage.

Answer 62

A mortgage is a financing arrangement where land is a collateral for the loan.

Question 63

What 2 documents are comprised of in a mortgage?

Answer 63

The promissory note and the mortgage

Exception: Equitable mortgage where buyer delivers deed to lender rather than signing anything; parole evidence is allowed to show intent of parties

Question 64

Define the purchase money mortgage

Answer 64

Borrower takes out a loan for the purpose of purchasing property.

Question 65

Define the future advance mortgage

Answer 65

Borrower takes out another line of credit to fund a project.

Question 66

What are the 2 types of mortgage theories and define both

Answer 66

Lien theory - mortgage is only a lien on the property, borrower can sell.

Title theory - borrower cannot sell until fully pays off loan. bank holds title.

Question 67

Listen

Answer 67

Due on Sale Clause
o Under a due on sale clause, the lender may demand full payment of the loan if the mortgagor transfers any interest in the property without the lender’s consent.

Question 68

What are the rules around mortgages and transfers including on modification

Answer 68

Mortgages are transferable. If a grantee assumes the mortgage, they are personally liable, and the mortgagor is secondarily liable. If the grantee does not assume the mortgage “takes subject to”, the grantee does not have personal liability.

Once a transferee assumes a mortgage, any modification done by the transferee immediately releases the original mortgagor of any liability. Thus, no one can come after the original mortgagor for a deficiency.

Question 69

What is the rule around mortgages and recording acts?

Answer 69

Recording acts also apply to mortgages. Recording statutes protect mortgagees. If recorded, the mortgage sticks with the land. This means that the mortgagee can foreclose on the land if necessary.

In notice state, mortgagor wins if a BFP, in order to not reward the prior bank that did not record. Race Notice State, mortgagor wins if a BFP and recorded deed before prior mortgage recorded.

Question 70

Define a foreclosure

Answer 70

A foreclosure is a forced sale of property where the proceeds of the sale are used to satisfy the outstanding debt.

Question 71

Define the foreclosure rules

Answer 71

Foreclosure destroys all interests junior to the mortgage being foreclosed. If the proceeds are not enough to cover the debt, the lender may seek a deficiency judgment against the borrower. All junior interests must be joined as necessary parties in the action, or that party’s interest will remain on the land.
Those with senior interests are not impacted by the foreclosure. After land is sold, proceeds are paid in priority order:

(1) Attorneys fees and costs associated with foreclosure
(2) Senior interests including PPM
(3) Junior interests
(4) Mortgagor (if any excess remains)

Sub Rules
 Senior lienors who did not foreclose receive no proceeds and their lien remains on the property.
 PPM has priority over non-PPM who executed at the same time unless the recording act changes the result
 A mortgage that is properly recorded may take priority over one that is not
 Buyer at auction takes subject to the senior interest that has not been paid. The auction buyer is not personally liable on the senior debt, but sooner or later senior lien will come after the property for satisfaction.

Question 72

Define equitable redemption

Answer 72

Under equitable redemption, before the time of the foreclosure sale, the borrower has the opportunity to pay all missed payments including plus interest.
Equitable redemption can never be waived.

Question 73

Define acceleration clause

Answer 73

If mortgage contained an acceleration clause, the full balance of the mortgage must be paid in order to redeem the house.

Question 74

Define statutory redemption

Answer 74

Under statutory redemption, the borrower can recover the land after the foreclosure sale if they pay the foreclosure sales price. This window is typically 6 months to a year post foreclosure sale.

Question 75

What is a deed of trust?

Answer 75

A deed of trust is a security interest where the borrower gives a deed of trust to a third party trustee (e.g., the lender’s lawyer), and in the event of default, the lender instructs the trustee to foreclose the deed of trust by sale.

Question 76

What is an installment land contract?

Answer 76

An installment contract occurs where a buyer makes a down payment ands pays the balance in installments, and the seller retains the title until the balance is paid off in full.

o Note: Difference between installment contract and mortgage: buyer does not receive a deed until land paid off, and vender gets forfeiture rather than foreclosure. Typically, if buyer in default, seller gets back the property and gets to keep the installment payments.

• Sale Leaseback: Under a sale leaseback, the court may determine this was a disguised mortgage.
• Equitable Vendor Lien: Seller transfers title to the buyer, and purchase price or portion remains unpaid.

Question 77

What are the 4 types of present possessory interests?

Answer 77

Fee simple
Fee simple defeasible
Life estate
Fee tail

Question 78

Define a fee simple absolute.

Answer 78

A fee simple absolute is a present possessory interest of absolute ownership of potentially infinite duration. The interest is devisable, descendible, or freely transferrable.

• “To A” or “To A and his heirs”
• Presumed in the absence of contrary intent (that is, the common law words “and his heirs” is not necessary). Thus, “To A” is sufficient to create the fee simple absolute.
• Freely transferable, devisable by will, and descendible through intestacy
• Future Interest in Grantor: None
• Future Interest in Third Party: None

Question 79

Define a fee simple defeasible

Answer 79

A fee simple defeasible is a present possessory interest that is subject to forfeiture by the occurrence or non occurrence of a stated condition. There are 3 types:
Fee simple defeasible subject to a condition subsequent
Fee simple defeasible determinable
Fee simple determinable subject to an executory limitation

Question 80

Define a fee simple determinable and any future interest

Answer 80

A fee simple determinable terminates at the occurrence of a specified event and grants in the grantor a possibility of reverter. If the event occurs, the interest automatically reverts back to the grantor. It is transferable, devisable, and descendible.

o Created by words of duration such as “so long as,” “during,” “while,” “until,” or “unless”
o Words limitation duration must be used. Grants that say “for the purpose of” and “to be used for” are mere expressions of motive.
o Transferable, devisable, descendible, but always subject to the attached condition.
o If the condition is violated forfeiture is automatic.
o Accompanying Future Interest for Grantor: Possibility of reverter
 The possibility of reverter is transferable, devisable, descendible

Question 81

Fee Simple Subject to Condition Subsequent

Answer 81

A fee simple subject to a condition subsequent is a defeasible fee in which the grantor reserves the right to enter upon the happening of a stated event. On the occurrence of this event, the grantee’s estate continues until the grantor exercises her power of termination (also called a right of reentry).

o Use of conditional words like “but if”, “provided that,” or “upon condition that”
o Conclusion on Essay: Thus, Andy’s conveyance set up a fee simple subject to a condition subsequent.

o Power of Termination
 The interest retained is the power of termination, the future interest reserved by the transferor. The grantor can elect whether or not to terminate the grantee’s estate, and he may waive his right by express agreement or conduct. Inaction does not constitute waiver.

o Right of reentry
 Not transferable as a gift, but they are devisable and descendible

o Note: A conveyance that contains duration (determinable) words and a power of termination should be construed to be a fee simple subject to condition subsequent.

Question 82

What is a fee simple subject to an executory limitation?

Answer 82

A fee simple subject to an executory limitation is a conveyance subject to a condition and then passes to a third party rather than reverting to the grantor.

o “To A, but if X event occurs, then to B.”

Question 83

Listen

Answer 83

• Notes on Construction for Defeasible Fees
  o Words of desire, hope, intention do not create a defeasible fee. In each of the following, A is vested with a fee simple absolute, not a defeasible fee
   “To A for the purpose of constructing a day care center.”
   “To A with the hope that he becomes a lawyer.”
   “To A with the expectation he uses the premise as a store.”

Question 84

Define fee tail

Answer 84

A fee tail is a present possessory estate where inheritability is limited to lineal heirs.
Most jurisdictions have abolished this.

• Created: “to A and the heirs of his body.”
• Most Jx have abolished, and to attempt to create one results in a fee simple.

Question 85

Define a life estate and what issue to raise along with it?

Answer 85

A life estate is a present possessory estate for the duration of one’s life. Upon the grantee’s death, the estate goes back to the granter (who retained a reversion interest).
The life tenant must not commit waste.

• “To A for life”
  o Not: “To A for 50 years” or “To A for life, but in no event more than 10 years.” Both of these create a leasehold interest.
• Life estate pur autre vie: Similar to a life estate but lasts for the lifetime of an identified third party (not the life tenant).
• Accompanying Future Interest
  o If the future interest is held by O, it is called a reversion.
  o If it is held by a third party, it is called a remainder.

Question 86

What are the 3 types of waste and define each?

Answer 86

(1) Affirmative: Voluntary act that decreases the value of the property.
(2) Permissive: A neglectful act that decreases the value of the property.
(3) Ameliorative: unilateral act that increases the value of the property.

Duties of Life Tenant
 Reasonable repairs, pay ordinary taxes up to FMV, pay interest on mortgage, pay special assessments of short duration
o Future interest holder may sue for damages, enjoin acts, or seek reimbursement if they try and repair

Question 87

What are the 3 future interests for a grantor and define each and is RAP relevant?

Answer 87

• (1) Possibility of reverter (following fee simple determinable)
• (2) Right of reentry (following fee simple subject to a condition subsequent)
• (3) Reversion (potentially following a life estate)
  o A reversion is the estate left in a grantor who conveys less than they own
   Example: “To A for 99 years”

o Transferable, devisable, inheritable
o Holder can sue for waste and for tortious damage to the interest
RAP does NOT apply because all of these are vested

Question 88

What are the 3 broad categories of future interests for transferees?

Answer 88

(1) Contingent remainder
(2) Vested remainder
(3) Executory interest

Question 89

What is a contingent remainder? 2 requirements

Answer 89

A contingent remainder is a future possessory interest in the transferee where the interest is (1) created in an unborn or unascertainable person and/or (2) subject to a condition precedent

Unborn or Unascertained Persons
 A remainder here is contingent because no one is ready to take possession if the preceding estate ends.
 O conveys “to A for life, then to B’s first child.” B has no children.
 “A to life, then to B’s heirs.” Both are alive, but a living person has no heirs. Thus, the remainder is contingent.
 “A to life, then to B’s children who survive A.” A is still alive. B’s children have a contingent remainder.

Subject to a Condition Precedent
 Condition has to be satisfied beforehand
 “A for life, then, if B graduates, to B.”
 B must first satisfy a condition precedent before he can take.

Question 90

notes on what is abolished

Answer 90

Rule in Shelley’s Case - Remainders are not recognized and A takes the life estate and the remainder
 Abolished

o Destructibility of contingent remainders - At common law, a contingent remainder was destroyed if it was still contingent at the time the preceding estate ended.
 Abolished

• Doctrine of Worthier Title: A remainder in the grantor’s heirs is invalid and becomes a reversion in the grantor.
  o Example: “To A for life, then to the heirs of O.” Here, O gets a reversion.
  abolished

Question 91

What are vested remainders 2 situations

Answer 91

Vested remainders are future possessory interests in the transferee where the transferee is a (1) ascertainable person and (2) not subject to a condition precedent

Question 92

What are the 3 types of vested remainders?

Answer 92

(1) Indefeasible
(2) Subject to open
(3) Subject to condition subsequent

Question 93

listen

Answer 93

 (1) Indefeasibly Vested Remainder
* 100% certainty
* “To A for life, then to B.” Both people alive.

Question 94

When does a class open? When does it close?

Answer 94

• A class is open when it is possible for others to join.
• A class if closed (that is, no one born after may share in gift) when some member of the class can call for distribution.
  o Womb rule: Persons in gestation at time the class closes are included in the class.
• Members of the class can call for distribution at termination of proceeding estate (death of husband who had life estate).

Question 95

listen

Answer 95

 (3) Vested Remainder Subject to Total Divestment Subject to divestment due to condition subsequent

Question 96

What is an executory interest

Answer 96

Executory Interest is an interest in favor of a future grantee and follows a fee simple subject to an executory limitation.

Question 97

what are the two types

Answer 97

• (1) Shifting executory interest cuts short the prior interest
• (2) Springing executory interest cuts short the grantor’s interest

Question 98

What is the rule on alienation?

Answer 98

A court might invalidate a conveyance on public policy grounds. A restriction might be void if it violates the rule against alienation. Forfeiture restraints occur when an attempted transfer results in a forfeiture of the interest. Disabling restraints occur when any transfer is deemed ineffective.

Question 99

Define the rule against perpetuities

Answer 99

Under RAP, an interest must vest within 21 years of the death of a life in being at the time of the conveyance.

Question 100

What are the 5 areas RAP applies to?

Answer 100

(1) Contingent remainders
(2) Vested remainders subject to open
(3) Executory interests
(4) Option in gross or right of first refusal to purchase land
(5) Powers of appointment

Question 101

listen

Answer 101

• RAP does not apply to certain interests because it is not possible for them to violate RAP
  o Vested remainders (vest at creation) other than open
  o Reversion (vests at creation)
  o Possibility of reverter (vests at creation)
  o Right of reentry (vests at creation)
• 3 Step Approach to Assess RAP
  o (1) Determine the future interest to see if RAP applies
  o (2) Identify the measuring life in being and the triggering event
  o (3) Analyze whether after the death plus 21 years will we know if it has vested or not.
  o Violation of the Rule destroys only the offending interest.
  o Example of violation – an executory interest that follows a defeasible fee, with no limit on the time within which it must vest violates RAP.

Question 102

What is the general rule for all concurrent estates?

Answer 102

All co-tenants share the right to possession and enjoyment of the property.

Question 103

What are the 3 types of joint property ownership

Answer 103

Joint tenancy
Tenancy in common
Tenancy by the entirety

Question 104

Define all of the rules you know for joint tenancy

Answer 104

 A joint tenancy is a concurrent estate in land with the right of survivorship; when one tenant dies, the surviving co-tenants take the property free of the deceased tenant’s interest.

 Four unities are required to create a joint tenancy. Joint tenants must take their interest [PITT].
* Possession: With same right to possession.
* Interest: With identical, equal interests.
* Time: At the same time.
* Title: All joint tenants must acquire title by the same instrument or by a joint adverse possession.

 A conveyance by sale or by gift severs a joint tenancy. The transferee takes as a tenant in common. A joint tenancy cannot be devised by will.

 A majority of states apply the lien theory in which a mortgage does not sever the tenancy. A minority of states apply the title theory, in which a mortgage does sever a joint tenancy. A joint tenant is not held liable to a mortgage that they did not enter into.

• Partition actions, foreclosure actions, and a murder sever a joint tenancy.
• Courts are split as to whether a lease severs a joint tenancy.

Question 105

listen to notes on joint tenancy

Answer 105

• Bar Exam – If exam identifies parties as joint tenants, this means joint tenants with the right of survivorship. Do not apply the presumption that any conveyance to two or more persons is a tenancy in common.
• At common law, joint tenancy was presumed. Modern Law: Tenancy in common presumed.
• Conclusion: Bill now owns an undivided interest in the house.

Question 106

Define a tenancy in common

Answer 106

A tenancy in common is a concurrent estate between two or more co-tenants with no right of survivorship.

Question 107

What are the attributes of a tenancy in common

Answer 107

• No right of survivorship
• Created by the severance of the above tenancies
• Default tenancy if nothing else was specified
• Equal right to occupy: Each co-tenant has a joint right to possession of the whole property and owns an interest in the property jointly with another.
• Equal shares are presumed but are not required.
• Co-tenant may:
  o Sell
  o Will
  o Gift his interest
  o Implication
   New grantee steps in shoes of grantor
• At common law, joint tenancy presumed
• Modernly, tenancy in common is presumed where there are multiple owners

Question 108

Define a tenancy by the entirery

Answer 108

A tenancy by the entirety is a concurrent estate created only between married persons, who take as a fictitious “one person” with the right of survivorship. Some jurisdictions accept same sex marriage.

Question 109

Name all rules you know about tenancy by the entirerty

Answer 109

• Expressly created or presumed in some states by a grant to spouses
• Recognized in 25 states, but not recognized in community property states
• Neither tenant can unilaterally convey their share to another or encumber the property
  o Example: The wife cannot mortgage her interest.
  o Example: Deed or mortgage executed by only spouse is ineffective.
• Creditors of only spouse cannot touch this tenancy for satisfaction of the debt.
• If a conveyance to spouses is unclear as to the type of estate created, most states presume that it creates a tenancy by the entirety.
• Do not assume tenancy by entirety just because at some point the couple marries
  o Rule: If a man and woman take title to the land as joint tenants prior to their marriage, their subsequent marriage does not affect the nature of their title.
  o Compare: When any conveyance is given to married partners, there is a presumption of a tenancy by the entirety.

Question 110

4 ways to sever a tenancy by the entirety

Answer 110

divorce
death
agreement
execution of a joint creditor of both the spouses

Question 111

What is the possession rule for all co-tenants

Answer 111

Each co-tenant has the right to possess the whole property, but no tenant has the right to exclusively possess any right of the property

Question 112

Define ouster

Answer 112

Each co tenant has the right to possess and enjoy all portions of the property. An ouster occurs if a tenant is wrongfully excluded (e.g., by a co-tenant claiming exclusive possession).

Question 113

What is an ousted tenant entitled to?

Answer 113

an ousted co-tenant is entitled to her share of the fair market rental value of the property for the time she was wrongfully deprived of possession

Question 114

what is the rule related to adverse possession

Answer 114

unless there is an ouster, a co-tenant cannot acquire title to the whole

Question 115

does a co-tenant in exclusive possession have a duty to pay rent to the other tenants?

Answer 115

No
A co-tenant in possession has no duty to account to another co-tenant for the rental value of his own occupancy of the premises or any profits retained from his own use of land.

Question 116

what are the 2 exceptions

Answer 116

the co tenant in exclusive possession must share
(1) profits from exploitations of land
(2) profits from leasing all or most of the premise to a third party

note: o A co-tenant is solely responsible for his own losses from his use of the property and may not seek contribution.

Question 117

what is the rule regarding co tenants and taxes and interset on mortgage

Answer 117

Co-tenants are responsible for their proportionate share of taxes and mortgage interest payments.

Question 118

what can a co-tenant do who is not in sole possession regarding taxes do

Answer 118

o A co-tenant not in sole possession who pays the taxes can compel contribution from other co-tenants.

Question 119

up to what amount is a co-tenant in sole possession reimbursed regarding taxes

Answer 119

o A co-tenant in sole possession is reimbursed for taxes only for the amount that exceeds the rental value of the property.

Question 120

what is the rule on repairs and the exception

Answer 120

Where a co-tenant has made payments on behalf of the property for taxes, repairs, or mortgage payments that are in excess of his pro rata share, he may seek contribution, but there is no automatic right to collect the pro rata share from the co-tenant. The co-tenant may deduct these payments from rents received or seek reimbursement “off the top” if the property is sold.
 Exception: Repair is necessary and you ask other person for help and they refuse. Then you can demand payment.

Question 121

listen

Answer 121

 Effect of One Concurrent Owner Encumbering the Property
* Rule: A joint tenant may only encumber her own interest and may not encumber the interests of other co-tenants.
* Example: Mortgage or judgment lien
 Duty of Fair Dealing
* Rule: General duty of fair dealing between all co-tenants
* Exam Tip – If exam raises issue where one co-tenant gets a lien that impacts other co-tenants

Question 122

what rule should you always bring in co tenancy?

Answer 122

Waste - a co-tenant shall not commit waste

APA
affirmative
permissive
ameleriotive

Question 123

define partition

Answer 123

partition occurs where a court orders that the property is divided or the property is ordered sold and the proceeds distributed. court will order partition if practical for the parties.
* 3 Types
o Voluntary
o Partition in Kind (preferred): Physical division
o Partition in Sale: Court forces sale and proceeds proportional
* Accounting: Each co-tenant has right to accounting and reimbursement for taxes or repairs paid in excess of his proportionate share.

 Encumbrance: A co-tenant may encumber his own share of the property with a loan or judgement lien but may not encumber the share of his co-tenant.

Question 124

listen exam tips

Answer 124

 Typical joint ownership issues may include possible severance, such as an inter vivos conveyance of one co-tenant’s interest, and/or accounting issues among the co-tenants.
 Essays often start with a joint tenancy that is severed resulting in a tenancy in common.

Question 125

when is a tenancy created and what are the 4 types of tenancies?

Answer 125

A tenancy is created when an owner of land conveys to another a lesser interest in the property

(1) tenancy for years
(2) tenancy at will
(3) periodic tenancy
(4) tenancy at sufferage

Question 126

define a tenancy at years as well as the termination rule

Answer 126

a tenancy of years is a lease for a fixed period of time

the lease naturally terminates at the end of the specified period. no notice is required.

in most states, a year to year tenancy must satisfy the statute of frauds

note
 A tenancy for years ends automatically on its termination date, without either party giving notice, but may terminate prematurely when the tenant exercises a remedy for the landlord’s breach.
 Example: “To T for 10 years”

Question 127

define a periodic tenancy and all the rules associated with it

Answer 127

a periodic tenancy is a lease which automatically continues for successive intervals until either party gives notice of termination

in a year to year lease, under the common law, six months was required, in the modern law, one month is required
in a month to month lease, one month is required

a tenancy in sufferance who is held over converts into a periodic tenancy

a period tenancy can be implied where the lease mentions no duration but payment is made in set intervals

an oral tenancy for year to year violates statute of frauds

 Termination
* Rule: Written notice required since it is automatically renewed.
* Death does not terminate at the death of either party
* Notice must be at least equal to length of period itself and should terminate lease at end of a period
* Holdover Tenant
* Rule
o A holder tenant remains on the premise after their lease is terminated and tenders rent.
* Implication
o Considered to have periodic tenancy with period equal to period of the previous lease.

Question 128

What are the landowner’s rights when dealing with a hold over tenant?

Answer 128

The landlord may:
(1) Treat the tenant as a trespasser and evict
(2) Treat the tenant as a holdover tenant and renew the lease

Question 129

what is the new lease period for a holdover tenant for residential and for commercial

Answer 129

residential - hold them a month to month no matter the terms of the original lease

commercial - hold a year to year tenant to year to year

Question 130

is it ok for landlord to increase rent due on tenant who switched from being holdover tenant to having periodic tenancy?

Answer 130

yes

 Hold tenant to increase in rent so long as it is reasonable or the tenant had notice of an increase in rent.

Question 131

define a tenancy at will

Answer 131

a tenancy at will is created when there is a no stated duration. The tenancy can last so long as either party desires. It can be terminated at any time.

 Example: “To T for as long as L or T desires”

Question 132

notes on tenancy at will

Answer 132

 Creation
* Created by express agreement or by implication where tenant takes possession with permission, but there is no specific start date or time period identified for paying rent
* Note: Unless parties agree otherwise, the payment of regular rent will be viewed by court as an implied periodic tenancy
* If lease gives only landlord right to terminate, similar right will be implied in favor of the tenant, but this will not work vice versa

Question 133

what are the 4 ways a tenancy at will can terminate

Answer 133

(1) death of either party
(2) tenant commits waste
(3) tenant attempts to assign his tenancy
(4) landlord transfers her interest in the property or gives term lease to a third person

Question 134

Define a tenancy at sufferance and discuss termination

Answer 134

A tenancy at sufferance arises a when a tenant holds over, or remains in possession after the termination of their tenancy. A tenancy at sufferance gives rise to a periodic tenancy.

Termination - no notice from landlord is required and lasts so long as landlord needs to decide

Question 135

listen to notes on tenancy at sufferance

Answer 135

 Landlord Options
* (1) Evict tenant
* (2) Create a periodic tenancy by accepting rent (implied acceptance), or express acceptance by telling tenant its ok to stay
 Hold Over Doctrine
* The maximum tenancy that can be created is year-to-year tenancy.
* Commercial Tenants
o Commercial tenants may be held to a new year-to-year periodic tenancy if the original lease term was for one year or more.
* Exceptions – where no hold over exists
o Tenant remains in possession for only a few hours after termination or leaves a few articles of personal property behind
o Delay is not the tenant’s fault (e.g., severe illness).
o Note: In above cases, landlord cannot bind tenant to a new tenancy.

Question 136

What is the tenant’s duty to repair?

Answer 136

The tenant must maintain the premises and make ordinary repairs, except for those for wear and tear.
The tenant must not commit waste (affirmative, permissive, ameliorative)
Fixtures pass with the land

The only defense is that the lease shifted the burden of repair to the landlord

Question 137

What is the tenant’s duty to pay rent and how was it treated in the common law versus modern law?

Answer 137

The tenant has the duty to pay rent. In the common law, covenants in a lease were independent of each other, meaning that the landlord’s breach did not excuse the tenant’s duty to pay rent.
In the modern law, if a breach is material, one’s party’s performance may be excused after proper notice and a time to cure.

Question 138

If the tenant breaches a duty and leaves the premise - what 3 options does the landlord have?

Answer 138

SIR

(1) Treat abandonment as a surrender
(2) Ignore - hold the T responsible for unpaid rent
(3) Relet and sue for the differences (landlord can recover all costs of reletting, unpaid rent, difference in rent)
Common law - no duty to mitigate
Modern law - duty to mitigate

Question 139

what option does the landlord have if the tenant breaches and remains on property and what is the other point to mention

Answer 139

Ejectment action

most states prohibit self help. the landlord is not allowed to change locks, physically remove the tenant, etc.

Question 140

what are the rules regarding the rent deposit

Answer 140

(1) Rent deposit can be held for tenant not paying rent or tenant damaging premise. illegal activity by tenant is not sufficient.
(2) landlord must put rent into escrow account
(3) landlord may not collect interest on rent
(4) one month rent is the default
(5) any clause attempting to avoid these laws is void

Question 141

can you name 6 landlord duties

Answer 141

(1) duty to deliver possession
(2) implied covenant of quiet enjoyment
(3) implied warranty of habitability
(4) duty to repair
(5) no retaliatory eviction
(6) no discrimination in sales or leases

Question 142

what is the duty to deliver possession?

Answer 142

Under the American rule, the landlord must put the tenant in legal possession on the first day of the lease, whereas under the British rule, the landlord must put the tenant also under physical possession on the first day of the lease.

Question 143

define the ICQE - implied covenant of quiet enjoymnet

Answer 143

implied in every commercial or residential lease is the landlord’s promise that he nor someone with superior title will interfere with the tenant’s quiet use and enjoyment of the premise. Examples of breach include eviction or a hold over tenant in the apartment for more than a few days.

Question 144

what is the rule on partial eviction as it pertains to a landlord versus someone with superior title

Answer 144

If the partial eviction is due to the landlord’s actions, the tenant may withhold the entire rent
if the partial eviction is due to the superior title holder’s actions, the tenant must pay for the portion retained

Question 145

what is one way the IWH or ICQE can be breached and what are the requirements?

Answer 145

by constructive eviction - SiNG

(1) substantial interference
(2) notice and a reasonable time to cure
(3) tenant leaves - get out

tenant remedies - seek damages

Question 146

define the implied warranty of habitability

Answer 146

implied in every residential lease is landlord’s promise that the premise will be fit for human habitation. courts apply the local housing code if one is available, or else the court asks whether the conditions are reasonably suitable for human residence. In the interest of public policy, the warranty is non waivable.

Question 147

what are a tenant’s 4 options upon a breach of the warranty of habitability?

Answer 147

MRRR
(1) move out (as per constructive eviction)
(2) repair and deduct expenses from rent due
(3) reduce rent
(4) remain

Question 148

in a sale of land, is there an implied warranty of habitability? what is the exception

Answer 148

No. Buyer Beware.
Exception
Sale of new home by a builder

Question 149

what is the common law rule on the landlord’s duty to repair

Answer 149

under the common law, a landlord had no duty to repair or maintain the premises. any duty must have been provided for in the lease or required by statute

Question 150

what is the modern law rule on the landlord’s duty to repair? 5 areas

Answer 150

under the modern law, the landlord must
(1) maintain the common area
(2) warn of any latent defects
(3) complete repairs of anything landlord assumed
(4) repair public use premises of short term duration (lease)
(5) repair furnished dwellings of short term duration

Question 151

what is the rule on landlord duty as it relates to acts of other tenants

Answer 151

the landlord is not liable to the tenant for wrongful acts of other tenants but must abate a nuisance

Question 152

what is the modern trend on reasonable duty of care and when can a landlord be held liable

Answer 152

the landlord owes a general duty of reasonable care toward residential tenants, and will be held liable in injuries in tort resulting from ordinary negligence if:
(1) landlord had notice of defect; AND
(2) an opportunity to repair it

note
o Legal Duty to Repair
 If the landlord has a statutory duty to repair (for example, housing codes), the landlord is liable in tort for injuries resulting from the landlord’s failure to repair or negligence in making repairs.

Question 153

what is the rule on retaliatory eviction and the assumption of wrongdoing?

Answer 153

a tenant may not be evicted or his/her lease not renewed due to the tenant’s complaint that the premises are not habitable
retaliation is assumed if the landlord takes such action within 3-6 months of the complaint

Question 154

what are the 2 acts related to discrimination

Answer 154

Civil Rights Act of 1964

Fair Housing Act of of 1968

Question 155

define civil rights act

Answer 155

The Civil Rights Act bars discrimination in the sale or rental of all property

Question 156

define the Fair Housing Act

Answer 156

The Fair Housing Act protects tenants and prospective tenants from discrimination based on protected classes including familial housing (exception senior housing)

Question 157

what are the 2 exemptions for the fair housing act?

Answer 157

(1) Owner occupied dwellings with less than 5 units
(2) single family homes where owner owns less than 4 single family homes

Question 158

what are the prohibited actions under the Fair Housing Act

Answer 158

• refusing to rent or to sell
• providing different terms or conditions
• falsely representing that the dwelling is not available
• discriminatory advertising, for which the exemptions above do NOT apply and for which the newspaper may also be liable
• providing reasonable accommodations whereby the landlord must allow disabled tenants to make reasonable modifications to existing premises at the tenants own expense

Question 159

listen - issue clusters

Answer 159

 Exam Tips – Issue Clusters
 Condition of rental premises, implied warranty of habitability, implied covenant of quiet enjoyment, constructive eviction, and possibly retaliatory eviction. Often, if one issue is present, they all will be.

Question 160

define assignment - when it is occurs as well as a statement on privity of contract and privity of estate

Answer 160

Assignment occurs when the assignor transfers his entire remaining interest under the lease to another.
The landlord and assignee are in privity of estate with each other, and are liable to each other for all covenants the run with the land (i.e., touch and concern the land). The landlord and assignor retain their privity of contract with each other, which means the landlord may seek any unpaid rent from the assignor (though the assignee pays the rent under normal circumstances).
The path to releasing an assignor from their obligations is through a novation, where 2 parties agree to substitute one party for a new one. No writing is required.

Question 161

Define a sublease - mention privity details and any other details you can think of

Answer 161

A sublease is the transfer of a portion of the remaining term under a lease.

Under a sublease, the sublessee is in privity of contract and privity of estate with the sublessor. The sublessor remains liable to the landlord on all covenants. The landlord remains liable to the sublessor on all covenants. The sublessor becomes the sublessee’s landlord. The sublessor remains liable for all rent payments.
o Sublessor: issues the lease
o Lessee: person lease is granted to

Question 162

what is the rule on objections to assignments by landlords? by other roommates?

Answer 162

Another roommate has no right to contest a transfer because she is not the beneficiary of the non-assignment.

By accepting rent from the new assignee, the landlord waives any right to sue for breaching a non-assignment clause.

Question 163

listen to option to purchase

Answer 163

o Where option to purchase is attached to a lease, the consideration for the lease supports the option. Because it is an interest in land, it must be a signed writing. The option lasts as long as the lease.

Question 164

Define a fixture

Answer 164

Fixture is chattel that is so affixed to the land that they may be deemed part of the real estate

5 Factor Analysis to Determine If Fixture
* (1) Method of attachment
* (2) Adaptability
* (3) Removal
* (4) Intention
* (5) Agreement – Controlling Factor

Question 165

what is the rule on annexed (removable) chattel

Answer 165

Annexed (removable) chattels must be removed by the end of the lease term and the tenant is responsible for repairing any damage caused by removal.

Question 166

what is the common ownership rule

Answer 166

under common ownership rules, the annexor’s objective intent determines whether the items are fixtures

Question 167

what is the divided ownership rule

Answer 167

under divided ownership cases, the item’s owner can remove it only if this would not leave unrepairable damage to the premise

Question 168

what is constructive annexation?

Answer 168

Under constructive annexation, items not physically attached to land are fixtures if they are so uniquely adapted to the real estate that it makes no sense to separate them (e.g., keys to doors).

Question 169

what are trade fixtures and the rule on them

Answer 169

Trade fixtures are those that are affixed to the real estate by a commercial tenant for use in business. There is a strong presumption that trade fixtures are removable. The tenant is responsible for repairing any damage resulting from its removal.

Question 170

listen to exam tip

Answer 170

 EXAM TIP
* Look for issues cluster of waste and fixtures since they are usually both present if one is. Note that the issue of waste can also arise in relation to the conduct of a life tenant.

Question 171

what are the 3 types of servitudes

Answer 171

easement
real covenant
equitable servitude

Question 172

Define an easement (first sentence)

Answer 172

An easement is a non-possessory interest in land granted to a third party.

Question 173

Define how an easement is created.

Answer 173

An easement is created expressly or impliedly. While an express easement is created by grant (and must satisfy the Statute of Frauds), an implied easement can be created by prior use, implication, or prescription.

Question 174

What is the first classification

Answer 174

An easement can be classified as affirmative or negative. An affirmative easement gives the third party a right to perform an act on the servient land (e.g., cross my driveway), while a negative easement restrict a landowner from performing an act (e.g., do not obstruct the view).

Question 175

second classification

Answer 175

Easements may also be classified as in gross or appurtenant. An in gross easement gives an individual a benefit that is not tied to the land, and does not run with the land.

An appurtenant easement benefits a particular piece of land (i.e., the dominant estate) and burdens a piece of land (i.e., the servient estate). An appurtenant easement runs with the land.

Question 176

define scope of easement

Answer 176

A scope includes only normal, foreseeable development. The dominant owner may not exceed the easement’s scope, or else the easement is surcharged. The servient landowner may sue for damages, though the easement will not be terminated.

Question 177

define transfer of easement

Answer 177

When a servient parcel is transferred, the easement will run with the land unless the subsequent buyer is a bona fide purchaser. A bona fide purchaser is one who pays value and takes with no notice of the servititude.

Go into all types of recording acts
Go into all types of notice (actual, inquiry, constructive)
Go into Shelter Rule

Question 178

5 ways to create an easement

Answer 178

(1) Expressly created through a signed writing that satisfies the Statute of Frauds
(2) Easement implied by prior use
(3) Easement by necessity
(4) Easement by prescription
(5) Easement by estoppel

Question 179

Define implied easement by prior use - 4 elements

Answer 179

(1) Land was originally one parcel;
(2) Land severed;
(3) Use apparent and continuous such that parties would have expected it to continue once the land was divided; AND
(4) Reasonable necessity.

Question 180

Define easement by necessity - 3 elements

Answer 180

(1) Land was originally one parcel;
(2) Land severed and became landlocked; AND
(3) Strict necessity.

Question 181

Define easement by prescription - 4 elements

Answer 181

(1) Actual use; (recall, exclusive use not required)
(2) Open and notorious;
(3) Hostile; AND
(4) Continuous for the statutory period.
Tacking allowed.

Question 182

Define easement by estoppel - 2 elements

Answer 182

(1) Reliance on license to detriment; AND
(2) With knowledge and consent of burdened property.

Question 183

what is the rule on maintenance and repair of easements

Answer 183

The dominant owner has the duty to make repairs if she is the sole user of the easement. If she is not the sole user, the court will apportion repair costs based on use.

Question 184

What is an easement by reservation?

Answer 184

An easement by reservation arises when a landowner conveys land but reserves the right to use the tract for a special purpose. This is a type of in gross easement.

(i.e., builder conveys parking lot but reserves right to use 5 spaces).

Question 185

What are the 7 ways to terminate an easement? What is the mnemonic?

Answer 185

END CRAMP

(1) Estoppel
(2) Necessity
(3) Destruction
(4) Condemnation
(5) Release in writing
(6) Merger
(7) Prescription

Question 186

define estoppel for termination

Answer 186

An easement is terminated when the servient owner materially changes position in reliance that the easement will no longer be enforced.

Question 187

define termination by necessity

Answer 187

An easement by necessity ends when the necessity ends.

Question 188

define termination by desctruction

Answer 188

Involuntary destruction of servient land ends the easement.

Question 189

define termination by condemnation

Answer 189

Condemnation of servient estate by eminent domain.

Question 190

define termination by release in writing

Answer 190

the dominant owner may release the servient owner of the easement provided the release is in writing

Question 191

define termination by abandonment - 2 requirements

Answer 191

an easement is terminated by abandonment when there is an
(1) Intent to terminate; AND
(2) Physical manifestation of the intent.

Words alone or mere non use is insufficient.

Question 192

Define termination by merger.

Answer 192

An easement is terminated when a single owner holds title to the dominant and servient parcels.

Question 193

Define termination by prescription

Answer 193

An easement is terminated where the servient owner uses the easement without consent from the dominant holder, continuously through the statutory period

Question 194

7 steps for easement essay not including BFP
Recording Acts
Notice
Shelter Rule

Answer 194

 (1) Define easement overall sentence
 (2) Identify how easements are created (4 ways)
 (3) Identify first classification – affirmative or negative
 (4) Identify second classification – in gross or appurtenant including transfer
 (5) Discuss scope of easement
 (6) Discuss repair of easement
 (7) Discuss termination of easement

Question 195

listen to exam tips on easements

Answer 195

 EXAM TIP – Easement fact triggers
 Right to use of an adjacent parking lot for a business
 Right to use specified parking spaces
 Right to use a driveway, road, or pathway

 EXAM Tip – Issue Spotting
 Notice (since sale to a BFP would cause an easement not to transfer), especially inquiry notice since easements are often visible upon inspection
 Deed delivery
 Recording acts
 Warranty deeds (since an undisclosed easement would violate many of the warranties)

Question 196

Define a profit

Answer 196

A profit entitles the holder to enter the servient land to extract resources from the servient land. Misuse of the profit will result in a surcharge. A profit generally shares the same rules as easements.

Examples: Mining minerals, drilling for oil, removing timber, hunting, fishing).

Question 197

Define a license.

Answer 197

A license if the right to use another’s land for a specific purpose. It is freely revocable unless applies to bar revocation. Estoppel will only apply if the licensee has invested a substantial amount of money in reasonable reliance on the continuation of the license. A license is personal to the licensee and cannot be transferred.

Question 198

3 situations that create a license

Answer 198

(1) Oral agreement of an easement produces a license, unless estoppel applies
(2) Easement not in writing produces a license
(3) Ticket cases create a license

Question 199

three theories of liability to enforce a servitude

Answer 199

 (1) Real Covenant
 (2) Equitable Servitude
 (3) Reciprocal Servitude Implied from a Common Scheme

Example: Cora (C) will assert three different theories: (1) that there was a covenant, the burden of which ran to Buyer (B), and the benefit of which runs to C, (2) that there was an equitable servitude, the burden of which runs to B, and the benefit of which runs to C, and (3) that a negative reciprocal servitude can be implied from a common scheme initiated by Developer (D). C will sue under a covenant theory to obtain damages in the form of the series of $600 payments, or will sue under an equitable servitude theory to require B to pay the $600.

Question 200

real covenant - first theory to enforce liability

Answer 200

Real covenants occur when owners of property covenant to engage or refrain from certain behaviors related to the land. The usual remedy is money damages.

Question 201

5 requirements for burden of covenant to run

Answer 201

 (1) Intent for the covenant to run with the land to successors in interest;
 (2) Notice;
 (3) Covenant touches and concerns the land;
 (4) Privity (both horizontal privity between the original parties and vertical privity between the succeeding parties; AND
 (5) Covenant between the original parties in a writing that complies with the Statute of Frauds

Question 202

Define intent

Answer 202

 It must be the intent of the parties to the contract that the covenant run with the land. Intent can be inferred from circumstances or evidenced by language in the conveyance creating the covenant.
 Example: The covenant stated that it applied to the grantees as well as “their heirs, successors, and assigns.”

Question 203

Define notice and as us under the common or modern law

Answer 203

 Under the common law, a subsequent purchaser was burdened with the covenant regardless of whether she had notice.
 Under modern recording statutes, a purchaser of land must be on notice that the covenant exists, or else it will not be enforceable.
 Successors of the burdened land who are not purchasers (for example, donees) are bound by the covenant whether or not they had notice.

Question 204

define Covenant Touches and Concerns the Land

Answer 204

 A covenant touches and concerns the land when it affects the legal relationship of the parties as landowners and not merely as members of the community at large.

Question 205

define horizontal privity

Answer 205

original parties when entering covenant shared some interest in the land independent of the covenant

Question 206

define vertical privity - complete and general

Answer 206

 Complete vertical privity between the succeeding parties – entire property interest, nothing short of that, must be passed along to the successor in interest against whom the burden is sought to be enforced.
* General vertical privity
Vertical privity will usually be satisfied so long as the relationship between the two parties is not hostile (e.g., no adverse possession)

 Exam Tip – When tested on bar exam, other VP and HP have been present and easy to establish.

Question 207

define statute of frauds requirement

Answer 207

 As will all contracts regarding real property, the contract must comply with the Statute of Frauds.
 Example: For the burden to run to B, there must be a writing that satisfies the statute of frauds. Here, the original deed was properly written and recorded. Developer inserted the clause covenanting payment in all of the deeds given to the original 10 purchasers. Therefore, there is a writing satisfying the statute of frauds.
 Note on writing: An equitable servitude may be created by a writing, even if one party does not sign it, so long as the party to be charged accepted the deed and recorded it, we will assume it satisfies Statute of Frauds.

Question 208

4 requirements for benefit of real covenant to run

Answer 208

 (1) Intent for the covenant to run with the land to successors in interest;
 (2) Covenant touches and concerns the land;
 (3) Vertical privity; AND
 (4) Covenant between the original parties in a writing that complies with the Statute of Frauds

Note: Where HP is lacking, the B-1 successor can enforce the covenant against the original promisor (A), but not against the promisor’s successor.
 Exam Tip: When tested on bar exam, VP present and easy to establish.

Question 209

what type of remedy sought in real covenant

Answer 209

Rule: A breach of a real covenant is remedied by money damages.

Analysis: Because all 5 elements are met, the burden to pay the $600 for security services ran with the land from the seller to the buyer.

Conclusion: Cora may sue Buyer for damages for breach of a real covenant.

Question 210

what is the rule for termination of covenants

Answer 210

Rule: As with all other nonpossessory interests, a covenant may be terminated by [same list as for easements]. END CRAMP and changed conditions.

Question 211

what is the second theory to enforce liability and what are the 2 differences between it and a real covenant

Answer 211

 Rule: An equitable servitude is similar to a real covenant but has two important differences. First, an equitable servitude requires a showing of intent, notice, touch and concern, and compliance with the Statute of Frauds (similar to a required showing in a real covenant). However, an equitable servitude does not require privity. Second, an equitable servitude is accompanied by a request for injunctive relief.

Question 212

what is the third legal theory to enforce liability

Answer 212

Reciprocal Servitude Implied from a Common Scheme

Question 213

define Reciprocal Servitude Implied from a Common Scheme - 2 elements

Answer 213

Rule: A reciprocal negative servitude can be implied from a developer’s actions where a developer develops a number of plots of land with a common scheme apparent from the development, and the grantee had notice of the covenant. Each lot owner can enforce the covenant against every other lot owner.

Note: No writing required. Constructive notice can be found if the deeds were recorded.
: Not getting money damages.

Question 214

name a few legal theories to enforce the real covenant or equitable servitude or implied reciprocal servitude

Answer 214

 An assignment or delegation is not valid
 A condition has not been met

Question 215

 5 Equitable Defenses to Enforcement

Answer 215

 (1) Unclean hands
 (2) Laches
 (3) Estoppel
 (4) Acquiescence
 (5) Changed Neighborhood Conditions

Question 216

define unclean hands in this context

Answer 216

• Where person seeking enforcement is violating a similar restriction on his own land

Question 217

define laches in this context

Answer 217

• Where the benefitted party fails to bring suit against the violator within a reasonable time

Question 218

define estoppel in this context

Answer 218

• Rule: Where benefited party acted in a such a way that a reasonable person would believe the covenant was abandoned or waived.

Question 219

define acquiescence

Answer 219

• Rule: Where benefitted party acquiesced to the violation of the servitude.

Question 220

define changed Neighborhood Conditions

Answer 220

• Rule: This applies in situations where there have been drastic changes to the land and the surroundings such that it makes it unreasonable to comply with the former restrictions placed by covenants/equitable servitudes/implied reciprocal servitudes. However, this is a very high bar to establish. Mere pockets of limited change are never good enough.

Question 221

listen exam tips and other

Answer 221

 Termination and Modification of Equitable Servitudes
 Same as for covenants

 Exam TIP – Equitable Servitude Fact Triggers – injunction sought
 Prohibition against opening a store or restaurant or competing business within a specific area
 Prohibition against allowing another similar store to lease space in same shopping center
 CCR’s of a condo prohibiting certain conduct, such as in artist community only allowing on-premises sale of art made in house
 Covenant in an apartment lease, such as not to disturb other tenants
 Subdivision owners must pay annual fee to one security company
 Real covenants and equitable servitudes are very similar. On exam, typically acceptable to analyze one or the other since elements are mostly similar if the facts do not state which remedy is sought.
 However, it is best to note the differences, too, such as the remedy allowed under each.

Question 222

define the zoning rule

Answer 222

The Tenth Amendment allows states to regulate the use and development of land through zoning.
Zoning are government regulations that restrict the use of land.

Question 223

2 elements to make a zoning regulation valid

Answer 223

(1) Reasonable; AND
(2) Substantial relation to public benefits.

Question 224

2 types of zoning ordinances

Answer 224

(1) cumulative
(2) non cumulative

Question 225

define cumulative

Answer 225

Cumulative ordinances create a hierarchy in the use of land. Land zones for a particular use may be used for the stated purpose or for any higher use

Example: house could be built in an industrial zone, but a factory could not be built in a residential zone)

Question 226

define non cumulative

Answer 226

land may only be used for the purpose it is zoned

Question 227

define special use permit

Answer 227

special use permit must be obtained even thought the zoning is proper for the intended use

It is often required for hospitals, funeral homes, etc.

Question 228

define a variance

Answer 228

a variance is permission to depart from a zoning restriction

Question 229

2 requirements for a variance to be obtained

Answer 229

(1) Unnecessary hardship; AND
(2) Due to unique facets of the property or practical difficulty.

 Note: The harm to the neighboring areas will also be considered.

Question 230

define a non conforming use

Answer 230

A non-conforming use is use of a property that was allowed under zoning regulations in the past but is no longer allowed

• Some statutes: Allow nonconforming use to continue
• Other statutes: Provide for termination of these uses by reasonable amortization provisions (provide time frame for owners to comply with the new zoning regulations.

Question 231

what is one of the key issues to assess on an essay if zoning is brought up?

Answer 231

Takings - Constitutional Law Fifth Amendment

Question 232

Listen
Condos, HOAs, Coops

Answer 232

Each owner holds a share of the condo in fee simple and she owns as a tenant in common with all of the other subdivision residents with regard to the common elements (common hallways, gym, pool, etc).

Each condo owner belongs to HOA which oversees common elements and with Board oversees rules. Each condo owner takes along with the restrictive covenants (CC&R)

CC&R “Covenants, conditions and restrictions”: HOA rules or restrictions on each owner’s use of their property.

Each owner has to pay annual dues to HOA used for maintenance of common elements, and if monthly fees not enough to cover operational expense, a one time fee is assessed (a Special Assessment)

Coop – Mortgage is on the entire building. Each coop owner has shares in the company. Each owner does not pay the mortgage, they pay fees to the company which pays the mortgage.

Question 233

what is the general rule for ownership of land and those types of rights

Answer 233

An owner of real property has the exclusive right to use and possess the soil, surface, and airspace of the property.

Question 234

what is the rule for interference with sublateral support of the land in its natural state

Answer 234

 Rule: A landowner is strictly liable for harm to land while in its natural state.

Question 235

what is the rule for interference with sublateral support of the land in its non-natural state

Answer 235

 Improved Lands
* Rule: Liability may arise when one interferes with another’s sublateral property rights. In cases where a neighbor excavates and causes a disturbance in their neighbor’s sublateral support for their property, the neighbor whose property was damaged may have a cause of action under either a negligence theory or a strict liability theory. Which theory applies depends on whether or not the claimant can show by clear and convincing evidence that her property and the weight of her buildings did not contribute to the damage. That is, there would have been damage regardless of whether or not her buildings were constructed. If the claimant can show that his buildings/improvements did not contribute to the ultimate injury, he can make out a claim for strict liability. If the claimant cannot make this showing, he must make out a case in negligence.

Question 236

What is the rule for subjacent support

Answer 236

 Underground occupants (e.g., miners), liable for negligence for any harm caused.

Question 237

3 types of water

Answer 237

watercourses (streams, river, lakes)
surface waters (snow, seepage)
water beneath surface (water from wells)

Question 238

2 theories for one’s use of watercourses and which is majority

Answer 238

(1) Riparian
(2) Prior appropriation

Question 239

define riparian doctrine

Answer 239

Under the Riparian doctrine, water belongs to those who own the land bordering the waterhouse. Riparians have right to reasonable use of water and is only liable if her use unreasonably interferes

Question 240

define prior appropriation doctrine

Answer 240

minority rule - used in CA

water belongs to the state, can be obtained by permit, allocation of water is first in time first in right no matter what the use is

Question 241

rule for surface waters

Answer 241

A landowner can use surface waters within their boundaries for any purpose they desire.

 Examples: Rainfall, melting snow, seepage that has not settled in anywhere

Question 242

3 theories of rights to use surface waters - which is majority rule and define

Answer 242

common enemy approach where owner can take and protective measure to get rid of surface water or combat its flow (e.g., build dam) so long as not unnecessary damage to others lands

Question 243

listen to 2 other theories

Answer 243

• (2) Natural flow theory: Owners cannot alter natural drainage patterns.
• (3) Reasonable use doctrine: Allows owner to act reasonably. Balancing the utility of the use against the gravity of the harm.

Question 244

define rule for water beneath surface

Answer 244

A surface owner may make reasonable use of water from beneath the surface of land

Question 245

what is the rule for right to airspace

Answer 245

right to airspace is not exclusive but the owner is entitled to freedom from excessive noise

Question 246

right to exclude define

Answer 246

 The possessor of land has the right to be from trespass and nuisance.

Question 247

define trespass - 2 elements

Answer 247

(1) Land is invaded by a tangible physical object; AND
(2) That interferes with the claimant’s right of exclusive possession.

Question 248

define private nuisance - 2 elements

Answer 248

Private nuisance occurs when
(1) Landowner invaded by intangibles; AND
(2) Substantially interferance with his use or enjoyment of her land.

Question 249

public nuisance - 2 elements

Answer 249

Public nuisance occurs when
(1) Invasion of intangibles; AND
(2) Unreasonable interferance with the health, safety or property rights of a broad segment of the community

Question 250

rule for when recovery is available on a public nuisance claim asserted by an individual - 2 requirements

Answer 250

(1) Suffered unique damage; AND
(2) That is not suffered by the public at large.

Question 251

listen to notes on nuisance

Answer 251

 Interference is substantial when it would be offensive to an average person in the community, as opposed to the plaintiff’s hypersensitivity.
 Interference is unreasonable when the severity of the inflicted injury outweighs the utility of the defendant’s conduct. To make this balancing determination, courts take into account the neighborhood, land values, existence of alternatives to the defendant., etc.

Question 252

what is key cross over issue with a nuisance question

Answer 252

takings - con law - fifth amendment

Question 253

listen to exam tips

Answer 253

• EXAM TIP
   Profits, licenses, water rights, and the right to lateral and subjacent support are infrequently tested but have been tested recently.
   Exam Tip
   Nuisance, inherently dangerous activities, negligence, and strict liability can all come up on the same essay. A nuisance question. And then negligence or strict liability for sublateral support issues.
• If essay raises issue of land support, you may need to go through a negligence analysis too if land collapses that may not have collapsed in its natural state.

Question 254

listen to remedies

Answer 254

• Where a party breaches a land-sale contract, the non-breaching party may recover:
   Compensatory damages for any foreseeable harm. Must show causation, certainty, foreseeability, and unavoidable damages
   Specific Performance. Must show (1) inadequate legal remedy, (2) definite and certain contract terms, (3) feasibility of enforcement, (4) mutuality of enforcement, and (5) lack of defenses
   Injunction where there is interference with one’s property rights. Must show: (1) inadequate legal remedy, (2) property right, (3) feasibility of enforcement, (4) balance of hardships, (5) lack of defenses.
   Defenses include: unclean hands, laches, freedom of speech, freedom of association.
   Failure to meet a condition
   Failure to disclose material fact