My Personal outline Property

1. PRESENT AND FUTURE INTERESTS.Present EstatesFuture Interests.

2. LAND OWNERSHIP.Adverse Possession.Land-Sale Contract.PerformanceMortgages and Covenants for Title in Warranty Deed.The Recording System.

3. USE OF LAND. Easements, Licenses, Profits. Affirmation. Equitable Servitudes and Covenants. Implied Negative Recipicle Servitude. Restriction Support Rights. Water Rights. Government Regulation.4. LANDLORD / TENANT.

Statue of FraudsLand contracts must be in writingPart performanceAgreement to agree

Type of Tenancy.Tenancy for yearsPeriodicAt will tenancySufferance

Tenant’s Right and Duties.Duty to pay rentRight of PossessionQuiet enjoymentDuty to Not to disturb neighborDuty to Behave responsiblyFixtureWasteWarranty of habitability

Landlord’s Rights and Duties.Duty to deliver possession to the tenant.

American rule, no duty, minorityAssignment / Subleasing.

AssignmentSub-lease

Remedies.Tenant

Withhold rent

Fix problemSubleaseTerminateAbandonHoldover

LandlordEviction-constructive

Eviction. through direct physical invasion by landlord

Constructive eviction. Wrongful conduct by landlord, uninhabitable for use and enjoyment of property, or intended purposes. Discharge tenant from rent, but must move out

Partial evictionRetaliatoryActon for rentEquitable damages

5. CONCURRENT OWNERSHIP.Joint Tenancy. 4 entities: time, interest, title, possessory; Right of SurvivorshipTenancy in Common. Condominium, No Right of SurvivorshipTenancy by the Entirety. Husband and wife.

Relations Between Co-Tenants. Possession. No Duty to Account(Ouster, Depletion)

1. PRESENT AND FUTURE ESTATES.Present Estates. Present Estate. Granting Language. Future Interest.

Fee Simple An estate of infinite duration with no limitations of inheritability. It cannot be divested, nor will it end on the happening of any event.. Freely alienable.

Fee Simple Absolute. Fee Simple. Any interests following a fee simple will be executory interests

Words Creating. “To A in fee.”Restraints on Alienation. Freely convey. Except option, right of

first refusal

Fee Simple Determinable. A fee simple estate that will end automatically when some specified event happens. Nothing further is required. It automatically reverts back to the grantor. The future interest created is called a possibility of reverter.Words Creating. Words of duration.Future Interest -- Possibility of Reverter.Statute of Limitations. Normally a long time.

Fee simple determinable subject to an executory limitation. Words: But if. Future: Executory Interest.

A fee simple determinable is constructed using words of during, such as “for as long as,”and the property reverts back to the grantor (through the grantor’s future interest in a possibility of reverter) if the grantee partakes of the proscribed activity.

Words Creating. durational “while” “until” “during” “so long as”

Fee Simple Subject to a Condition Precedent. This fee simple does not automatically end. It can be divested (cut short) at the grantor's election when a stated condition happens. If the future event happens the grantor will get its fee simple absolute back if the grantor explicitly enters a right of entry.Fee Simple Subject to a Condition Subsequent.Words Creating. Words of condition.Future Interest -- Right of Entry.

Power to exerciseEjectment. used to recover possession of the land. This used to be an

exclusive remedy for the possessor to recover land but has become available for owners too.

Quiet title is a lawsuit to establish a party's title to property Statute of Limitations. Normally starts upon occurrence of stated event and is normally a short period.A fee simple subject to a condition subsequent is constructed using words of condition,such as “upon the condition that,” and the grantor holds a future interest in a right of entry should the grantee partake of the proscribed activity.

Words Creating. Condition, "provided, however …," or "but if …," or "but in the event …," or "on condition that …."

Fee Simple Subject to an Executory Limitation. This is a fee simple that automatically divests in favor of a third person upon the occurrence of the stated event. The grantee holds subject to divestment.Words Creating. “But if.”Statute of Uses.A fee simple subject to an executory interest takes the place of a future interest in the grantor of a possibility of reverter (determinable) or a right of entry (subject to a condition subsequent). A fee simple subject to an executory interest instead goes to a third party named in the granting instrument, upon the occurrence of the proscribed event.

Words Creating. Either durational/conditional to third person.

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

A fee tail is another type of estate, but it is generally not recognized as a viable type of estate, as it once was. The purpose fee tail prohibits the selling of the property outside of the family tree, or heirs. If someone tried to sell the property to a non-family member, then the property would revert to the original grantor’s heirs. “A grants to B and the heirs of his body.” The way a fee tail is treated in most states today, is that a fee tail is simply converted to a fee simple absolute, and no states give full credence to a fee tail.

Life Estates. . A life estate is an estate that has the potential duration of one or more human lives. It can be for the life of the grantee, or pur autre vie (for the life of another person other than the owner and grantee).

Life Estates. remainders are related to life estates. A remainder may be either vested, or contingent. A life estate is a present interest in property which lasts for the lifetime of the grantee, or for the lifetime of another person (per autre vie). Life estate.

To A for life. Reversion or Remainder.Life Estate. An interest which lasts for the lifetime of a person.

Words Creating. ‘To A for life,’ or ‘to A for his life.’Defeasable. May be defeasible, and thus can be a life estate determinable

or a life estate subject to a condition subsequent.Restraints on Alienation. Freely alienable. Life estates may be subject to

restraints on alienation, and grantor may state that life estate holder may not convey their interest.

For life estates, forfeiture and promissory restraints on life estates are valid. Disabling restraints that totally restrict alienation of the property are void, but a partial disabling restraint may be valid if it satisfies the reasonable restraints doctrine, i.e., the restraint must have a reasonable purpose and be for a limited time.

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

Shifting executory interest. An interest is an executory interest if it follows a vested remainder in fee. It is shifting because it divests a grantee, i.e., it shifts the estate from one grantee to another.REMEDY Doctrine of waste is conduct by the life tenant that permanently impairs the value of the land or the interest of the person holding title or having some subsequent estate in land.

Voluntary (affirmative) waste. The life tenant actively causes permanent injury. Permissive (involuntary) waste: The land falls into disrepair because the tenant

fails to take reasonable measures to protect the land from the elements. Ameliorating waste: The use of the land is substantially changed but the change

increases the value of the land. Recovery, even though increase value of property b/c not what the owner intended.

Future Interests for Life Estates. An estate that will or may become a possessory estate in the future but it does not entitle the owner to present possession.

Possibility of Reverter. estate will return to the grantor if a condition is violated pertaining to a future interest from a fee simple determinable

Right of entry. grantor has the power of termination when an estate will return to the grantor if a condition is violated and the grantor decides to reclaim the estate; if grantor specifies, grantor resumes possession of land.

Reversion. grantee is given a possessory interest in a property from grantor with the understanding that the interest will "revert" back to grantor

Escheat to Government. Returns the land back to the government toprevent ownerless land.

Remainder for Third Person. a future interest in a third party that vests upon the natural conclusion of the grant to the original grantee, Follows Naturally

Words Creating. “To A for life, remainder to B.” Also applies to a term of years, “To A for ten years, then to B.”

Vested Remainder. Vesting means granting a person an immediate right to present or future enjoyment of property. Vested open remainder subject to RAP. a class gift to "the children of vested remainderman" remains open until remainderman's death.

Contingent Remainders. contingent remainder, i.e., one that is limited to an unascertained person. The remainder is contingent because the takers are not ascertained at the time of the conveyance.

Special Rules for Contingent Remainders. property can't vest because the beneficiary is unknown or the beneficiary is subject to a condition precedent which has not yet occurred

Destructibility of Contingent Remainders. contingent remainder had to vest prior to the termination of estate

Rule of convenience. the class closes when one in the class can call for distribution

Doctrine of merger. If a life estate and a reversion (or vested remainder) was acquired by the same person, then any intervening contingent remainder, if existed, was destroyed.

The Rule in Shelley’s Case. If a grantee acquires a life estate and a remainder if given to the grantees heirs, then the grantee gets a fee simple absolute.

Wait and See Statutes.Doctrine of worthier title. person devises property to his

heirs, the devise is void and the heirs take by descent or it is better to descent than to devise.

Contingent Remainders are subject to Rule Against Perpetuities. See belowExecutory Interests. is any future interest held by a third party that isn't a remainderRule Against Perpetuities. Life of person plus 21 years. If there is a possibility (even remote) that the interest would not vest beyond the measuring life of a person plus 21 years, then the rule applies and the interest is void.

Special Situations.Fertile Octogenarian (>80 year old male) or Unborn

Widow. makes a future interest in property void unless it can be logically proven that the interest must either vest or fail due to the Rule Against Perpetuities. Both are legal fictions that could remotely happen, i.e., that a male in their 80, 90 could father a child and a child could be born by a widow.

Class Gifts. is considered vested only when every member has a vested interest or is in possession.

Judged in Advance. common-law version of the Rule requires that the validity of the interest be judged at the time it is created, not at the time the interest actually vests.

Duties. No Waste. Reasonable Repairs.

Alienability. Could convey a lesser estate, for example, a term of years.

Executory Interests are subject to the Rule Against Perpetuities and are any interest in a third party that follows a fee simple estate or otherwise cuts short (divests) a preceding estate is an executory interest (executory interest cuts short the preceding estate).

Rule Against Perpetuities to all reversionary interest (possibilities of reverter, rights of entry, and reversions) are vested and not subject to the Rule Against Perpetuities.

Charity-to-charity exception to the Rule Against Perpetuities applies only if the gift shifts from one charity to another. If the gift shifts from a private to a charitable use or from a charitable to a private use, the Rule Against Perpetuities applies and the interest may not be valid.

Restraints on Alienation. There are three types of direct restraints:Forfeiture restraint: If the grantee attempts to transfer his interest it

is forfeited to another person. Disabling restraint: A disabling restraint takes away from the

grantee the power of transferring the interest. Promissory restraint: The grantee promises not to transfer his

interest.

2. LAND OWNERSHIP. Adverse possession the possessor must show an actual entry giving exclusive possession that is open, notorious, and visible; adverse and under a claim of right or color of title; and continuous for the statutory periodActual Possession which is Open, Notorious and Visible

Uses land in typical manner of owner of land.Hostile. Without Owner’s Consent and under a claim of right or color of

titleBad faith possessor, minority view, Bona Fide belief that possessor

has titleExclusive useContinuous. Scope of Interest Obtained Requirements

Possession for at least Statutory Period. Usually 15 Years or Longer.

Interruption by owner.Tacking

No privity

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

Land-Sale Contract.Formation. Must have Statute of Frauds, and if no sufficient land sale contract in

writing, which has an adequate description of the land and signed by the party to be charged, then possible exception to SOF under part performance.

Statute of Frauds. land contract that not in writing are barred from the court and restrictions must be in writing.

Exception.

Part Performance.Satisfaction by Memorandum. Will satisfy SOF if the

memorandum contains names of the parties, land to be conveyed, purchase price and the signature of the party to be charged (against whom enforcement is sought). For a valid deed, must have four major components. The landlord cannot sell an estate greater than he ownsparties must be identified sufficient words of transfer. Description of Delivery of Deed. Words or conduct which evidence intention to make deed presently operative to vest title in grantee.adequate description of the property.

River movement is either accretion or avulsion, determines river boundaries of property; increase and decrease accretion (changes boundaries); avulsion sudden change, doesn’t change boundariesgrantor signature

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

Equitable conversion. If a contract for the sale of realty is specifically enforceable, the doctrine of equitable conversion operates to treat the buyer as the equitable owner from the moment the contract becomes effective, even if title passes later, as it almost always will.

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

Fraud. If fraud or deceit is employed to procure the initial certificate of title it can be set aside by the true owner or, alternatively, the registered owner will be held to hold in constructive trust for the true owner

Constructive trust. wrongdoing and ground to impose a constructive trustPerformance concerned with Formation.

Statute of Fraud. Contracts or memorandum if it must be in writingException.

Part PerformanceSatisfaction by Memorandum. Will satisfy the SOF if it contains the

names of the parties land to be conveyed, purchase price and the signature of the party to be charged.Performance. SOF and look for issues related to Title, Tender, and Time is of the Essence, which are .

Title / Implied Warranty of Marketable Title.Defects. The important defects include:

Reasonably Free from Defects.

Quitclaim Deed.Merges into Deed.

Marketable title -- reasonably free of doubt has no unreasonable risk of litigationColor of Title. refers to a claim to title which appears valid, but may be

legally defective.Tender. A party seeking specific performance must normally first tender

performance, unless there is an anticipatory repudiation.Time is of the Essence. If there is a clause in the contract expressly

requiring timely performance, it will generally be enforced.Formation Exceptions.

Part performance.Acts by Vendor.Acts by Purchaser.

Possession Plus Payment.Improvements.

Unequivocally Referable Requirement.Remedies / Risk of Loss. Both the Buyer and Seller may be entitled to

damages or specific performance. Specific performance elements are definite and certain contract terms, feasibility, inadequate legal remedy, mutuality, and defenses.

Remedy. If specific performance:1. An inadequate legal remedy.2. Definite and certain contract terms.3. Feasibility of fashioning a remedy.4. Mutuality. And5. No applicable defenses.

Risk of Loss.Equitable Conversion.Uniform Act.

Mortgages and Covenants for Title in Warranty Deed. Land-sale contract has met the requirements of a valid contract, then it is often necessary to discuss post-closing issues related to mortgages and covenants for title in warranty deed

Sale of Mortgaged Property.Sale Subject to Mortgage.Assumption.Foreclosure.Judicial Foreclosure. a judgment by a court to foreclose on a mortgage or deed of trust, orders the real property to be sold to pay the debtPrivate Foreclosure Sale. at which the property is sold to pay off the unpaid balance of the loan.Deeds.Quitclaim Deed.Warranty Deed.Covenants for Title in Warranty Deed. Post-closing stage. Covenants of title in a warranty deed protect only against title defects, and do not include a covenant for fitness for intended use. Promises about state of ownership.

Seisin and Conveyance. Seisin: A person is seised if he holds an estate of freehold and either has possession of the land or a tenant holds possession for him.Against Encumbrances.Quiet Enjoyment and Warranty.Present Versus Future Covenants.

Present Covenants. Present covenants are breached when the covenant of seisin, the covenant of the right to convey, and the covenant against encumbrancesFuture Covenants. Future covenants are not breached until the grantee is actually or constructively evicted, and include the covenant to quiet enjoyment, the covenant of warranty, and the covenant of future assurances.

Statute of Limitations.Enforcement.

Present Covenants.Future Covenants.

Damages.777 General Warranty Deed has 6 items which warrants the title sale. a. Covenant of seisin: The grantor promises that he owns what he is conveying by deed.

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

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

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

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

f. Covenant of further assurances: The grantor promises to do whatever else is reasonably necessary to perfect the conveyed title, if it turns out to be imperfect.

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

3. Quitclaim deed: A quitclaim deed contains no warranties of title whatever, so the grantee interest in the property is the as what the grantor own, if any.777The Recording System. Generally only protect subsequent BFPs

First, discuss the different types of recording system statutes.Then, discuss the parties which are protected under the recording statutes.Finally, discuss the requirement of notice to subsequent claimants.

See *** type of recording language.The different types of acts.

Pure Race Statutes. Whoever records first wins.Pure Notice Statutes. A subsequent purchaser for value (subsequent bona

fide purchaser (BFP)) wins if, at the time of conveyance, that subsequent purchaser had no actual, inquiry or constructive notice of the prior conveyance

Race-Notice Statutes. A subsequent purchaser for value wins if: (1) the subsequent purchaser did not have actual, inquiry or constructive notice and (2) the subsequent purchaser records before the prior purchaser. In short, subsequent BFP's win only if they record before the prior purchaser

Not Recordable. Some types of interests are not recordable:Adverse Possession.Some Easements.Short Leases.

Parties Protected. The subsequent grantee against a prior grantee.Purchaser for Value. (or Bona fide purchaser (BFP) . is an innocent party

who purchases property without notice of any other party's claim to the title of that property; if BFP takes property that has been fraudulently acquired, then BFP has good titleWild Deeds. deeds outside chain of title cannot be “noticed” easilyShelter Rule. a subsequent grantee from a BFP prevails over a prior grantee who failed to record by the time of the subsequent conveyance, even this the first grantee knew of the prior instrument

Donee. Gift and not BFPLess than Market Value.Purchase From or Through Grantee.

Creditors.Mortgage.Judgment and Execution Creditors. is somebody as a result of the judicial

process gets a judgment entered against that party and looks to party’s property to fulfill the judgment, only protects against subsequent creditor not prior

Eligible to be Recorded.Must Record Whole Chain.

Notice to Subsequent Claimants.Actual Notice.Record Notice.

Defective Document.Imputed Knowledge.Chain of Title.

Inquiry Notice.Reasonable person to inquire further.Possession.

Timing of Notice.

Purchaser from One Without Notice.3. USE OF LAND.Easements. A privilege to use the land of another, not possession. There are three major areas to discuss under Easements:

CreationScopeTermination

Creation of Easement. An easement may be created in writing, -- Express Easement, an ease maybe implied -- Implied Easement by Reservation / Grant or Necessity, and an easement may be created through Prescription.

Types of Easements -- Forms of Creation. SOFExpress Easements. Created by a deed or will, must be in writing

due to the Statute of Frauds. May be "granted" or "reserved" and is typically included in a document such as a deed or other officially recorded document.

Easement by Reservation.Creation in Stranger to Deed.

Implied Easement. By Grant or Reservation. Must have common ownership, prior use of the easement, and reasonable necessity and an easement may be created through Prescription.

Easement Implied by Grant. Where grantee has the right to use the easement.

Easement Implied by Reservation. Where grantor has the right to use the easement.

Easements by Implication and Necessity. parcels without access to a public highway may have an easement of access over adjacent land, if crossing that land is absolutely necessary to reach the landlocked parcel.

Owned by single person and then divided Strictly necessary Quasi-easement. Prior use.

Easement by Necessity. Where easement over one parcel of property is strictly necessary for the enjoyment of the other parcel of property. End of necessity which gave rise to easement by necessity

Owned by single person and then divided Reasonable necessary

Easement by Prescription. An easement through adverse possession. implied easements that give the easement holder a right to use another person's property; similar to Adverse Possession but the person doesn’t gain ownership of the property.

When Statute Starts to Run.Adverse Use.Continuous and Uninterrupted.Tacking.Easement Appurtenant. two plots, servient and dominant.

Easement passes with the land regardless of whether mentioned in the conveyanceEasements In Gross. rights granted to use another’s property

independent of the ownership or use of another parcel of land

Profit. take something off another person's land Scope of Easement. examine the rights of the easement holder and the rights of owner of the servient estate.

Affirmative Easements: The owner of the easement has the right to go onto the land of another (servient land) and do some act on the land.

Negative Easements: The owner of a negative easement can prevent the owner of the servient land from doing the same act on the servient land. These easements are rare and four types recognized under common law; light, air, subjacent or lateral support, or for the flow of an artificial stream.

Holder.Limited right to use and transfer easement rights.Based on reasonableness.May be express restrictions.Transfer of the Right of Way.Easement Appurtenant Versus in Gross.Distinction

Termination of Easement. determine if the easement has been legally terminated. Unless otherwise stated (e.g., a right of way for ten years) in the written instrument, an easement (like a fee simple) will last forever. However, there are some legally sanctioned means to terminate an easement.

Sale of serviant estate by BFP (taking without notice) will terminate private restrictions on profit, such as, easement, licenses, profit, covenant or servitude

Agreement to terminate by grantor and the grantee of the easement Expiration of the time allowed for the easement

Holder.Merger. where one person buys both dominant and servient tenement Severance.

Abandonment or expressed intent to discontinue use of the easement. Abandon an easement, the easement holder must demonstrate by physical action (e.g. removing a path) his intention to permanently abandon the easement.

Destruction. May terminate an easement but right to rebuild/repair by benefit owner

Surcharge. An additional charge for overuse of the easement.

Third-Parties.Prescription. Prescription where a holder of the easement uses someone else to use the easement for a period of statute of limitations

Estoppel. Where a holder of the easement stops making use of the easement and a third party detrimentally relied on the stopped use

Estoppel by Deed (Personal Estoppel). if a grantor purports to convey an estate that he does not own, his subsequent acquisition of the estate inures to the benefit of the grantee

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

Exception to Revocability.Oral License Acted Upon.

Profit. Profit or Profits in Gross: If the easement is nonexclusive, it cannot be apportioned. Nonexclusive means that it is enjoyed by both the beneficiary and the servient owner. If the easement is exclusive, it can be apportioned or divided by the owner.

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

Equitable Servitudes.Touch and Concern. (Running with Land) the Burden or benefit must deal

with the land. Intent. If the intent of the dominant and serviant estate, if touch and

concern then intentNotice to Subsequent Purchaser.Actual Notice. Recording notice.No Privity.Relief. Injunction

Covenants Running with Land. vertical and horizontal privity of estates for burdens to run, and vertical privity for benefits to run

Touch and Concern (Running with Land) the Burden or benefit must deal with the land.

Horizontal Privity. Privity when the original parties entered into the agreement with the party sharing some interest in the land independent of the covenant

Vertical Privity. Privity between the original party to the covenant and the subsequent owner.

Running with the land. is a nonpossessory interest and can either be an agreement between landowners to do something (affirmative) or to refrain from doing something (restrictive); however, a covenant can be terminated if the original purpose of the covenant is lost

Intent. Is the intent of the dominant and serviant estate, if touch and concern then intent

Notice to Subsequent Purchaser.Actual Notice. Notice to Subsequent Purchaser. Inquiry notice.Constructive notice. Recording.Privity. A covenant that doesn’t run with the land is personal and does not touch

and concern the land.Privity between Promisor and Promisee / Horizontal Privity, then

Running of Burden.Running of Benefit.

Privity between Litigants / Vertical Privity then only Running of Burden.

Defenses: Merger, release, abandonment, Estoppel, or Changed circumstances Private Nuisance. unreasonable interference of the use and enjoyment of land. Lateral and subjacent support issues relate normally when there is some kind of digging / building, or some type of mining, within the fact pattern.

Substantial Interference.Unreasonableness.Remedies.

Lateral Support. landowner is strictly liable if the landowner changes the land so as to withdraw lateral support. The excavating adjacent landowner is strictly liable for damages caused by the excavation even if the land would have subsided in its natural state.

Building.Subjacent Support. if land would not have subsided but for a structure, then the normal strict liability standard does not apply, a NEGLIGENCE standard thus applies

Structures Existing.Subjacent support: This right becomes an issue only if the surface is owned by one person and the right to mine underground is owned by another. The underground miner is strictly liable for damages caused to land or structures resulting from withdrawal of subjacent supportWater Rights / Riparian Rights. Depending on the state, the riparian doctrine is that reasonable use allowed (eastern US) or natural uses prevail over artificial, first in time is first in line (western US, state determines)

Streams and Lakes.Common Law Riparian Rights. under which those who own land next to

water have rights to use the water.Prior Appropriation Doctrine (western states). "first in time is first in line."

right to use scarce water from rivers and streamsGround Water.

Air Rights.Airplane Flights.

Direct Over-Flights.Adjacent Areas.

Tall Buildings.Right to Sunlight.

4. LANDLORD and TENANT.Types.

Statute of Frauds. When there is no written instrument creating a term of years, periodic tenancy, or a tenancy at will, problems will arise under the Statute of Frauds.

Modernly law there are no exceptions, an oral lease not complying with the Statute of Frauds is void. However, entry by the tenant creates a tenancy at will.

Tenancy for Years. An estate that lasts for a fixed period of time. Some cases hold that a tenancy for no fixed period which is terminable upon some event is a tenancy for years.

Certain Term. Automatic Termination.

Periodic Tenancy. no set ending date; continues until one party gives the other proper notice.

Creation by Implication.Termination. A periodic tenancy continues until proper notice of

termination is given. The notice can be oral or written as required by statute.At-Will Tenancy. A tenancy at will is a tenancy with no stated duration that

endures only as long as both the landlord and the tenant desire until either the landlord or tenant give notice of termination.

Tenancy at Sufferance. A tenant becomes a tenant at sufferance when the tenant wrongfully remains in possession of the property after termination of the tenancyTenant’s Rights, Duties and Remedies.

Possession.Quiet Enjoyment.

Interference by Landlord or Third Person.Conduct by Other Tenants.Constructive Eviction.

Condemnation.Total Taking.Partial.

Illegality.Implied Warranty of Habitability. The implied warranty of habitability involves a

new home that has substantial defects. Not applicable in the sale of commercial buildings or used homes

Waiver of Known Pre-Existing Defects. most states don’t use caveat emptor (“buyer beware”) in favor of the seller to disclose defects to the buyer which are known, discovered by buyer and serious.

Standards for Determining Habitability.Remedies.

Terminate Lease. Withhold Rent.Use Rent for Repairs.No Retaliatory Eviction. landlord may not terminate a tenant's

lease in retaliation for the tenant's reporting of, for example, a housing code violation (usually with 90 to 180 of retaliatory event). Destruction of Premises.

Duty to Pay Rent. Unless Landlord breaches one of their duties.Subrogated. If landlord recovers from the assignor tenant the assignor

tenant is subrogated—succeeds to (moved into the position of)—the landlord's claims as against the defaulting assignee tenant

Duty to Repair.Fixtures.

Right to Affix.Right to Remove.

Unless Trade Fixture DoctrineDuty to Behave Reasonably.

Landlord’s Rights, Duties and Remedies.Failure to deliver possession – majority landlord duty to deliver possession of

property. Eviction – actual eviction, Landlord or someone on behave physically removes

tenant from premises, and that terminates tenant duty to pay rent. SurrenderDestructionSecurity Deposits.

Interest.Right to Keep.

Right to Receive Rent.Eviction.

Eviction. Partial eviction, landlord keeps the tenant off part of the leased property.

Tenant can stay on the remaining property without paying any rent. Partial eviction by someone other than landlord — where this occurs, rent

is apportioned. Express Forfeiture Clause.Abandonment.

Accept Surrender.Re-Letting on T’s Account.Leave Vacant.

Assignment and Sub-leasing by a Tenant.Assignment. Privity of estate. Transfer of entire interest in leased

premises, including entire length of term of lease. Rule in Dumpor's Case, once an assignment is waived, it is waived

for the remainder of the lease. Privity of estate. duty on the assignee to perform certain

obligations under covenant, e.g. pay rent. A Landlord is in privity of estate with tenant, if the tenant assigns to another tenant, liable is only for covenants that run with the land.

Running of Benefit and Burden.Touch and Concern Test

For tenant only benefit side. Increase the use and enjoyment of premises. Successor in interest

Landlord. Burden run with the landIntent from touch and concern. Notice. (majority not required for benefit to run)Privity. Will have vertical privity

Normally Both or Neither.

Sublease. Transfer of less than entire interest.Running of Benefit and Burden.

Touch and Concern Test.For tenant only benefit side. Increase the use

and enjoyment of premises. Successor in interestLandlord. Burden run with the land

Intent from touch and concern. Notice. (majority not required for benefit to run)Privity. Will not have vertical privityNormally Both or Neither.

Rights After a Tenant Assigns.Agreements about Assignments and Sub-leases

Prohibition on Lease.

5. CONCURRENT OWNERSHIP. two or more people own the same interest in property. Elements are rights of survivorship, possession of the property, and whether or not there are equal shares.

Joint Tenancy. Two or more people own a single, unified interest in property.Four entities at same time: time, interest, title, possessoryRight of SurvivorshipPossession.Equal Shares.

Creation. Single instrument, and must be created in both or all joint tenants at the same time.

Language Used. "To A and B as joint tenants with right of survivorship." Severance.

Conveyance by one Joint Tenant. Contrary to common law, which viewed leases as a severing conveyance, most jurisdictions today hold that a lease by one joint tenant does not sever the joint tenancy. A corollary to that conclusion is that a lease from one joint tenant endures no longer than the life of the lessor joint tenant, even if the leasehold term purports to be longer.Three or More Joint Tenants.

Tenancy in Common. Each tenant has a separate undivided interest.No Right of Survivorship.Unequal Shares.

Rebuttable Presumption of Equality.Presumption Favoring.

Heirs. if the intestacy statute specifies that two persons are to take an equal interest as co-heirs, they take as tenants in common.

Tenancy by the Entirety. Common law, conveyance to two persons who arehusband and wife.

Usually Abolished.No Severance.Divorce.

Relations Between Co-Tenants. difficulties between themselves, possible issues:Possession.

No Duty to Account.Ouster.Depletion.

Payments made by one tenant.Partition.

6. VARIOUS LAND RIGHTS

DefensesImplied reciprocal negative servitudes

Support Rights.

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

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

through eminent domain

Private nuisance is normally a torts issues, so it is rarely included on a property essay.Water rights occur when someone is living on a body of water, common law riparian rights doctrine used in most states, and the prior appropriation doctrine which is used in many western states.

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

7. ZONING AND OTHER PUBLIC LAND-USE CONTROLS ZONING AND OTHER PUBLIC LAND-USE CONTROLS. This section includes There are two reasons that this section is not a heavily tested area on essays exams:

1. The takings clause relates to a Constitutional Law issue, so it is more heavily tested in Constitutional Law essays.2. The other doctrines in this section relate to municipal action, while most of the issues in a property essay will relate to individuals.Therefore, it is rare to find one of the above doctrines as an issue in a property essay question. However, if present, it will often involve a zoning issue, so remember to discuss legal limits on zoning, administration, and exclusionary zoning.

The Taking Clause. the taking clause, taking / regulation distinction, zoning, regulation of subdivision and growth, historical and environmental preservation and eminent domain.Compensable Taking v. Regulation.Zoning.

Legal Limits on Zoning.Exclusionary Zoning.

Historical and Environmental Preservation.Eminent Domain. Eminent domain is also sometimes an issue, and remember to discuss the public use and just compensation sub-issues of eminent domain.

Public Use.Just Compensation.

The Takings Clause.Compensable Taking v. Regulation. Substantial Advancement of Legitimate State Interests.

Broad Range of Legitimate Interests.Tight Means-End Fit.Deprivation of All Use.Physical Use.Diminution in Value.

Zoning.Use Zoning.Density Controls.

Legal Limits on Zoning. Constitutional Limits.

Takings Clause.Procedural Due Process.Equal Protection.

Exclusionary Zoning. Equal Protection Law.

Effect vs. Purpose.Standing.Federal Statutory Suits.

Effect vs. Purpose.Historical Preservation.

Districts and Landmarks.Environmental Preservation.

Urban Park Land.Wetlands and Coastlands.

Eminent Domain.Public Use.Just Compensation.

Highest and Best Use.

Executory Interests

Springing Executory Interest - Example 1

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

Springing Executory Interest - Example 2

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

To A and his heirs one day after my death To T in trust for The Fox Home for Wayward Law Students

if T incorporates the Fox Home within 5 years after my death (transfer in a will)

To A and his heirs when A gets married

Shifting Executory Interest - Example 1

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

Shifting Executory Interest - Example 2

To A for life, then to B and her heirs, but if but if B should die under the age of 25, to C and his heirs A has a life estate in possession, B has a vested remainder in fee

simple subject to complete defeasance by an executory interest in fee simple absolute in C. B's remainder is vested because (1) it can become possessory immediately upon A's death, no matter B's age. B need not reach 25 to take possession. However, if B does not reach 25, whether before or after A's death, C's executory interest will vest.

"To A" are words of purchase; "for life" are words of limitation showing that the duration of A's estate is limited to A's lifetime. Because O has not transferred all of its estate to A, there are rights remaining in O which are transferred to B as the remainder. "To B" are words of purchase, "and her heirs," words of limitation indicating that B will enjoy the full estate, the fee simple absolute, when A dies. B's estate is vested because B must do nothing else before A dies to enjoy the estate. "[B]ut if B should die under the age of 25" are words of condition. Because the happening of the condition will terminate a future interest or possessory estate presently vested in B, the condition that B not reach 25 is a condition subsequent as to B's interest. That is, it will operate to cut off the interest B owns. This same condition is a condition precedent to C's enjoying the estate; it must be satisfied before C can claim the interest. "To C" are, again, words of purchase indicating that C may take an interest or estate if B dies before reaching the age of 25; "and his heirs" are words of limitation indicating that, if C ever does take the estate C (or a transferee from C) will hold the estate in fee simple absolute. If B dies before reaching 25 while A is alive, the executory interest in C will divest or cut off B's vested remainder. If B is under 25 when A dies, B's interest will vest in possession as a fee simple estate. However, should B then die before reaching 25, C's executory interest will cut short B's estate and C will have possession of an estate in fee simple absolute. C's executory interest is a shifting executory interest because the title to the future interest or the estate after A's death can shift from B to C. A vested remainder subject to complete defeasance is always followed by a

shifting executory interest in another person. Other examples of springing executory interests include:

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

To A for life and then to B and her heirs if B gives A a suitable burial, to B and her heirs

Real Covenants (Damages) Equitable Servitudes (Injunctive relief) Easements

Burden Benefit Burden Benefit Both

Intent? Required Required Required Required Might matter.

Must burden touch and concern land?

Yes No Yes No Always doesby definition.

Must benefit touch and concern land?

Split (re in gross)

Yes Split Yes Generally no. But split for certain cases.

Horizontal privity? Required Split Not required Not required Not required

Vertical privity? Required Relaxed test (only AP cannot pass it)

Not required Not required Not required

Notice? Required for buyers under race-notice or

notice statutes

Not required Requiredfor buyers

(actual/construct.)

Not required Required for buyers under statutes for

burden to run

PE (Present Estates)

FI/G (future interest/grantor)

FI/3rd parties

1. FSA (entire bundle of sticks) None None2. FT (only valid in 4 states) Reversion ---3. LE, life estate Reversion (remainder in the

grantor)Remainder (vested and contingent)

4 a. FSD, fee simple determinable (“for so long as”)

Possibility of Reverter (automatically kicks back to grantor)

---

b. FSSCS, fee simple subject to condition subsequent (“on the condition of”)

Right of Entry (must affirmatively take back property, not automatic like FSD)

---

c. FSSEI, fee simple subject to executory interest

--- Executory Interest

Subject to rule against perpetuities

***

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

"Every conveyance of real estate which shall not be recorded shall be void as to any subsequent purchaser for value and in good faith, whose conveyance shall be first duly recorded."

race-notice statute; it protects a subsequent purchaser for value who has no notice of the prior interest ("in good faith"), only if the subsequent purchaser records her interest before the prior interest is recorded.