PROPERTY SHORT OUTLINE/CHECKLIST

CHECKLIST

I. POSSESSORY INTERESTS: ESTATES IN LAND

a. PRESENT POSSESSORY ESTATES
i. Fee Simple
ii. Fee Tail
iii. Defeasible Fees (3)
iv. Life Estate
b. FUTURE ESTATES
i. In the Grantor
1. Possibility of Reverter
2. Right of Entry / Power of Termination
3. Reversion
ii. In the Grantee
1. Vested Remainder (3)
2. Contingent Remainder
3. Executory Interest (2)
c. RULE AGAINST PERPETUITIES
d. CONCURRENT ESTATES (3)
e. LANDLORD/TENANT
f. ADVERSE POSSESSION

II. NON-POSSESSORY INTERESTS/SERVITUDES

a. EASEMENTS
b. LICENSES
c. PROFIT
d. COVENANTS
e. EQUITABLE SERVITUDES
f. LATERAL/SUBJACENT SUPPORT/WATER RIGHTS

III. CONVEYANCES/MORTGAGES
a. LAND SALE CONTRACTS
b. DEEDS (Execution, Delivery, Acceptance - THE CLOSING)
c. COVENANTS OF TITLE/ESTOPPEL BY DEED
d. RECORDING
e. MORTGAGES

IV. MISCELLANEOUS ISSUES

a. LATERAL/SUBJACENT SUPPORT
b. WATER RIGHTS
c. EMINENT DOMAIN
d. ZONING

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I. POSSESSORY INTERESTS: ESTATES IN LAND
A. PRESENT POSSESSORY ESTATES (4 of them)
i. (1) FEE SIMPLE ABSOLUTE
1. Created by: “To A” or “To A and his heirs”
2. Distinguishing Characteristics:
a. Absolute ownership and potentially infinite duration
b. Freely devisable, descendible, and alienable
i. Devisable = capable of testamentary transfer
ii. Descendible = capable of passing by descent/inheritable
iii. Alienable = transferable
3. Accompanying Future Interest: NONE

ii. (2) FEE TAIL

1. Created by: “To A and the heirs of his body”
2. Distinguishing Characteristics:
a. Historically, fee tail would pass directly to grantees lineal blood descendants, no
matter what
b. Has been virtually abolished and creates a fee simple absolute
3. Accompanying Future Interest:
a. Historically, yes. Grantor = reversion. 3rd party = remainder.

iii. (3) DEFEASIBLE FEES (3 of them)

1. Fee Simple Determinable (FSD)
a. Created by:
i. “To A for so long as…”; “To A during…”; “To A until…”; and “To A
during…”
ii. Grantor must use clear durational language
b. Distinguishing Characteristics:
i. Freely devisable, descendible, and alienable – however, it is ALWAYS
subject to the condition
ii. If condition created is violated, forfeiture is automatic
c. Accompanying Future Interest: Possibility of reverter
i. This future interest is devisable, descendible, and alienable

2. Fee Simple Subject to Condition Subsequent (FSSCS)

a. Created by:
i. “To A, but if X event occurs, grantor reserves the right to re-enter and
re-enter/retake”; or “on condition that” or “provided that”
ii. Grantor must use (1) conditional language, and (2) carve out the right
to re-enter/retake
1. If durational language instead, but still has right of re-entry,
then it'll be a FSSCS.
b. Distinguishing Characteristics:
i. Freely devisable, descendible, and alienable – however, it is ALWAYS
subject to the condition
ii. Does NOT automatically terminate if condition is violated, but it can be
cut short at the grantor’s option (doesn’t have to)
c. Accompanying Future Interest:
i. Right of Re-Entry, synonymous with the Power of Termination
1. Future interest is devisable and descendible

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 3. Fee Simple Subject to Executory Interest/Limitation (FSSEI)
a. Created by:
i. “To A, but if X event occurs, then to B”
ii. Can use the same language as the other two defeasible fees, the only
difference is the termination in favor of the third party
b. Distinguishing Characteristics:
i. Freely devisable, descendible, and alienable – however, it is ALWAYS
subject to the condition
ii. If condition occurs, estate automatically terminates in favor of a third
party (not the grantor)
c. Accompanying Future Interest:
i. Shifting executory interest in the third party

4. **IMPORTANT RULES REGARDING DEFEASIBLE FEES**

a. Words of hope, desire, intention:
i. Courts generally disfavor restrictions on the free use of land so will only
grant a defeasible fee if clear durational language is used. If this “desire
or hope” language is used – the grantee does not get a defeasible fee,
but rather a fee simple absolute.
b. Restraints on Alienation:
i. An absolute restraint on alienation is an absolute ban on the power to
sell or transfer, that is not linked to any reasonable time limited
purpose. Most restraints on alienation are knocked out of the grant.
ii. Rights of first refusal are valid restraints on alienation

iv. (4) LIFE ESTATE (L/E)

1. Created by:
a. “To A for life ”
i. Makes the grantee a life tenant
b. Life Estate Per Autre Vie:
i. A life estate measured by the life other than the grantee. “To A for the
life of B” or where life tenant transfers her interest to another
ii. At C/L, if A died first then anyone could take until B died
2. Distinguishing Characteristics:
a. The life tenant is entitled to all ordinary uses and profits from the land
b. However the life tenant must NOT commit waste (hurting future interest
holders) – see below.
c. Life estate is freely transferable
3. Accompanying Future Interest: If held by grantor = reversion. If held by third party =
remainder.
4. WASTE (remainderman can sue for dmgs, enjoin acts, seek reimbursements
a. Affirmative/Voluntary Waste (Willful Destruction)
i. Overt conduct that causes a drop in value
ii. Life tenant must not consume or exploit natural resources unless one of
the exceptions applies (PURGE)
1. PU – Prior Use – prior to the grant, the land was used for
exploitation.
a. Prior use of Open Mines Doctrine – if mining was done
on the land before the life estate began, the life tenant

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 may continue to mine, but is limited to the mines
already open
2. R – Repairs: the life tenant may consume natural resources for
reasonable repairs and maintenance.
3. G – Grant: the life tenant may exploit if granted that right
4. E – Exploitation: the land is suitable only to exploit
b. Permissive Waste (Neglect)
i. Occurs when the land is allowed to fall into a state of disrepair
ii. Life tenant must
1. maintain the premises in reasonably good repair
2. pay all ordinary taxes to the extent of income/profit on the land
3. if no income/profit, then pay taxes based on FMV
a. (future interests are destroyed if tax sale happens)
4. pay interest on mortgage (future interest holder pays principal)
iii. No obligation to insure the property
c. Ameliorative Waste (Improvements)
i. C/L - Life tenant must not engage in acts that will enhance the
property’s economic value, unless all future interest holders are known
and consent.
ii. Modernly - life tenant may alter/demolish if market value not
diminished, remaindermen do not object, and change in neighborhood
has made property relatively worthless

B. FUTURE INTERESTS (6)

i. FUTURE INTERESTS IN THE GRANTOR (3 of them)
1. (1) Possibility of Reverter
a. ONLY w/ the fee simple determinable. (Devisable, descendible, alienable)
2. (2) Right of Entry/Power of Termination
a. ONLY w/ the fee simple subject to condition subsequent. (Devisable, descendible)
3. (3) The Reversion
a. Reversion is a future interest that arises in a grantor who transfers an estate of
lesser quantum than she started with, other than a fee simple determinable or
a fee simple subject to condition subsequent. (Devisable, descendible, alienable)

ii. FUTURE INTERESTS IN THE GRANTEE OR THIRD PARTY (3 of them)

1. (1) Vested Remainders
a. Remainder: A remainder is a future interest created in a grantee that is capable
of becoming possessory upon the natural expiration of a prior possessory estate
created in the same conveyance in which the remainder is created.
b. Vested Remainder: Created in an existing and ascertained person, and not
subject to a condition precedent.
i. Indefeasibly Vested Remainder
1. The holder of this remainder is certain to acquire an estate in
the future, with no conditions attached.
a. IE: “To A for life, remainder to B”
ii. Vested Remainder Subject to Total Divestment (Executory Interest)
1. This is a vested remainder that is subject to being cut short by a
condition subsequent.
a. IE: “To A for life, remainder to B and his heirs, but if B
dies unmarried, then to C”

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 iii. Vested Remainder Subject to Open (If open, it's subject to RAP)
1. A remainder is vested in a group of takers, at least one of whom
is qualified to take. But each class member’s share is subject to
partial diminution because additional takers can still join.
a. IE: “To A for life, then to B’s children.” A is alive, an B
has two children, C and D.
2. Class can be OPEN or CLOSED.
a. OPEN = others can still join and share
i. members who predecease T are eliminated (lapse)
b. CLOSED = maximum membership has been set so others
cannot join or share, usually when A dies
i. (subject to the womb rule).
c. Rule of Convenience – the class closes whenever any
member is entitled to distribution
3. Could be a contingent remainder instead of all members are
unascertained
4. If interest of any class member vests too remotely, the whole
class gift fails. For class gift to vest the class must be closed &
all conditions precedent must be satisfied for every member

2. (2) Contingent Remainder (always subject to RAP)

a. A contingent remainder is one that is (1) created in an unborn or unascertained
person, OR (2) is subject to a condition precedent, OR both. See the following
rules re: contingent remainders:
i. Condition Precedent:
1. A condition precedent is a condition that must be satisfied
before the remainderman has a right to possession.
ii. Destructibility of Contingent Remainders:
1. At common law, a contingent remainder was destroyed if it was
still contingent at the time the preceding estate ended.
2. Modernly, the destructibility rule has been abolished, in which
case the grantor holds the estate until the condition is satisfied
& contingent remainderman have a springing executory interest
iii. Rule in Shelley’s Case:
1. At common law, if the same instrument created a life estate in
A and gave the remainder only to A’s heirs, the remainder was
not recognized, and A took the life estate AND the remainder.
a. IE: “To A for life, then on A’s death, to A’s heirs”
2. Modernly, this has been abolished, and A’s unknown heirs
receive a contingent remainder, O has a reversion.
iv. Doctrine of Worthier Title:
1. Under this doctrine, a remainder in the grantor’s heirs is invalid
and becomes a reversion in the grantor.
a. IE: O to “A for life, then to O’s heirs”
2. Some states have abolished this doctrine, in which case O’s
heirs have a contingent remainder (b/c they're unascertained)
v. Unborn Widow Problem
1. OH for life, then to H's widow. (@conveyance H married to S)
2. H's widow has a contingent remainder b/c she's unascertained
since won't know her identity until H dies

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 3. (3) Executory Interest (always subject to RAP)
a. Future interest created in a third party, which is not a remainder and which
takes effect by cutting short/divesting either (1) some interest in another
person (“shifting”) or (2) in the grantor or his heirs (“springing”).
b. Shifting
i. A future interest that always follows a defeasible fee and cuts short
someone other than the grantor.
1. IE: “to A for life, then to B and his heirs; but if B dies before A,
then to C and his heirs”
2. A has L/E. B has VR subject to shifting executory interest. C has
a shifting executory interest b/c it divests a transferee’s prior
preceding estate.
c. Springing
i. A future interest that cuts short the grantor’s interest.
1. IE: “To A and his heirs when A marries B.”
2. “A” has a shifting executory interest b/c it divests the grantor

C. THE RULE AGAINST PERPETUITIES (RAP)

i. Under the RAP, no interest is valid unless it must vest, if at all, within 21 years after some life
in being at the creation of the interest
1. (certain kinds of future interests are void if there is any possibility, however remote,
that the given interest may vest more than 21 years after the death of a measuring life)
ii. FOUR STEP APPROACH:
1. (1) Determine the future interest. The RAP only applies to contingent remainders,
executory interests, and vested remainders subject to open.
a. Does NOT apply to future interests in grantor, indefeasibly vested remainders,
or vested remainders subject to total divestment.
2. (2) Identify Conditions Precedent to the Vesting of the Future Interest
3. (3) Find a Measuring Life from the conveyance
a. Person alive at the date of conveyance who life/death is relevant to the
condition occurring
4. (4) Is the future interest CERTAIN to vest within 21 years after the death of the
measuring life?
iii. Two Types of Conveyances ALWAYS Violate the RAP:
1. (1) Gift to open class conditional on members surviving to age beyond 21
2. (2) Executory interests with no limit on the time within which it must vest
iv. Consequence of Violation of RAP: The offending interest is stricken
v. Special Rules:
1. Charity-to-Charity Exception: A gift from one charity to another does NOT violate RAP
2. Fertile Octogenarian Rule: A woman is capable of having children, regardless of age.
3. Unborn Widow/Widower Rule: A widow is not determined until death, so grant to a A's
issue is invalid. Whereas remainder to A's children is okay b/c determined at A's death
a. OAA's widowA's issue = not okay
4. Rights of First Refusal - Not subject to RAP unless right extends to grantee's heirs
5. Perpetuities Savings Clause: language that limits condition to w/in 21 yrs MBE favorite
vi. Statutory Reform (NOT important unless MBE states reform rule):
1. Wait and See: Wait until measuring life ends before determining whether interest is
valid, rather than determining at time of conveyance.
2. Uniform Statutory Rule Against Perp (USRAP): codifies RAP, plus adds alt 90 year period
3. Cy Pres “as near as possible”: court may reform to closely match grantor’s intent

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D. CONCURRENT ESTATES (3)
i. (1) JOINT TENANCY
1. Creation (TTIP + clear expression)
a. A joint tenancy is created with the four unities
i. TIME, TITLE (same instrument), INTEREST (identical shares), and
POSSESSION (equal right to possession of the whole).
b. The right of survivorship must be clearly expressed by the grantor, or else the
conveyance is presumed a tenancy in common.
2. Distinguishing Characteristics
a. Two or more persons own with the right of survivorship. Thus, when one
tenant dies, his share automatically goes to the surviving joint tenants
b. Joint tenant’s interest is alienable ONLY. Not devisable or descendible b/c of
the right of survivorship (creditor liens, w/o judicial sale, die w/ the tenant)
3. Severing the Joint Tenancy (SPaM)
a. SALE
i. Sale of Interest Severs: A joint tenant may sell or transfer his interest
during his lifetime, without consent of the other joint tenants, which
severs the joint tenancy. The buyer becomes a tenant in common. If
there are still multiple parties to the original joint tenancy, they remain
joint tenants.
ii. Equitable Conversion: In equity, the mere entering into a contract for
sale severs the joint tenancy under the doctrine of equitable conversion
– which provides that equity regards as done that which ought to be
done.
b. PARTITION
i. By voluntary agreement – a peaceful way to end the relationship
ii. Partition in kind – a court action for physical division where such is
possible (rural area), if in the best interests of all
iii. Forced Sale – Court will take action if in the best interest of all the
parties by selling the property (residence or commercial building – can’t
be physical divided). The proceeds divided proportionately.
c. MORTGAGE
i. Majority (Lien theory of mortgages) – a joint tenant’s execution of a
mortgage on his or her interest will not sever the joint tenancy.
ii. Minority (title theory of mortgage) – One joint tenant’s execution of a
mortgage or a lien on his or her share will sever the joint tenancy as to
that now encumbered share.

ii. (2) TENANCY BY THE ENTIRETY

1. A tenancy by the entirety is a marital interest between married partners with the right
of survivorship. It has the 4 unities (TTIP) plus the unity of marriage
2. Creation:
a. Between married partners with the right of survivorship; arises presumptively
in any conveyance to married partners unless otherwise stated.
3. Characteristics:
a. Creditors – creditors of only one spouse cannot touch the property
b. NO Unilateral Conveyances – Neither tenant, acting alone, can defeat the right
of survivorship by unilateral transfer to a third party

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 iii. (3) TENANCY IN COMMON
1. A tenancy in common is a form of joint ownership between two or more people with NO
right of survivorship.
2. Creation:
a. It is the default form of ownership that does not fall into one of the other
categories.
3. Characteristics:
a. Each co-tenant owns an individual part, and each has a right to possess the
whole.
b. Each interest is descendible, devisable, and alienable. There are no
survivorship rights between tenants in common.

iv. RIGHTS AND DUTIES OF CO-TENANTS

1. Possession: Each co-tenant is entitled to possess and enjoy the whole. If one co-tenant
wrongfully excludes another co-tenant from possession of the whole or any part, he has
committed wrongful ouster.
2. Rent: Absent ouster, a co-tenant in exclusive possession is not liable to others for rent.
A co-tenant who leases all or part of the premises to a third party must account to his
co-tenants, providing them with fair share of rent income.
3. Adverse Possession: Unless he has ousted the other co-tenants, one co-tenant in
exclusive possession for the statutory adverse possession period cannot acquire title to
the exclusion of the others
4. Mortgages/Taxes: Each co-tenant is responsible for his or her fair share of taxes and
mortgage interest payments based upon the undivided share she holds.
5. Repairs: The repairing co-tenant enjoys a right to contribution for reasonable,
necessary repairs provided that she has told the others of the need.
6. Improvements: During the life of the co-tenancy, there is no right to contribution for
unilateral “improvements.” However, at partition, the improving co-tenant is entitled
to a credit, equal to the increase due to her efforts. Additionally, at partition, the so-
called “improver” ALSO bears full liability for any drop in value due to her efforts.
7. Waste: A co-tenant must not commit waste (voluntary-willful, permissive-neglect,
ameliorative-changes that increase value). A co-tenant can bring an action for waste at
any time, doesn’t need to wait until partition.
8. Partition: A joint tenant or tenant in common as a right to bring an action for partition
9. Duty of Fair Dealing - A confidential relationship exists among co-tenants
10. Effect of Encumbrances - A tenant may only encumber her interest in the land

E. LANDLORD/TENANT LAW
i. TYPES OF ESTATES (4)
1. (1) Tenancy for Years
a. A lease for a fixed period of time. They are usually created in a writing, and
MUST be in writing if the term is greater than one year to satisfy the SOF.
b. Terminates automatically at the end of the term. No notice to terminate is
required for termination.

2. (2) Periodic Tenancy

a. A lease which continues for successive intervals until the landlord or tenant
gives proper notice to terminate.
b. Can be created by express agreement.
c. Can be created by implication by three ways:

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 i. (1) Land is leased with no mention of duration, but provision is made
for payment of rent at set intervals.
ii. (2) An oral term of years in violation of the SOF creates an implied
periodic tenancy measured by the way rent is tendered
iii. (3) The holdover: in a residential lease, if the landlord elects to hold
over a tenant who was wrongfully stayed on past the conclusion of the
original lease – measured by the way rent is tendered.
d. Terminates by providing written notice at least equal to the length of the
period agreed upon, absent agreement otherwise. If lease is for year-to-year,
then six months’ notice is required.

3. (3) Tenancy at Will

a. A tenancy for no fixed duration that can be terminated by either party at either
time, but typically a reasonable demand to vacate is usually required.
b. Unless there is an express agreement to a tenancy at will, the payment of
regular rent will cause the court to treat it as a periodic tenancy.

4. (4) Tenancy at Sufferance

a. Created when the tenant wrongfully remains in possession past the expiration
of the lease, and lasts until the landlord evicts the tenant or decides to hold the
tenant to a new tenancy
b. No notice is required

ii. LEASE TERMS

1. The lease is a K that governs the landlord/tenant relationship
2. At C/L, covenants in the lease were independent to the lease and nonperformance by
one party did not excuse the other party's performance. Modernly, covenants are
dependent and one party's nonperformance excuses the other party's performance.

iii. TENANT’S DUTIES & TORT LIABILITY

1. Duty to Repair
a. Tenant must maintain the premises and make ordinary repairs.
b. Tenant must not commit WASTE:
i. Voluntary waste – willful destruction
ii. Permissive waste – neglect
iii. Ameliorative waste – alterations that increase value
c. Modernly, if leased premises is destroyed w/o T's fault, T can terminate lease

2. Duty to Pay Rent

a. If T fails to pay rent, L can evict or sue for past rent – cannot resort to self-help.
b. If T abandons the property, L can either (1) treat abandonment as a surrender of
the property, (2) ignore the abandonment and sue for unpaid rent (minority), or
(3) re-let the property and hold T liable for deficiency (majority)
i. Majority Rule: L must TRY to re-let (mitigate damages)
c. Raising rent - If L gives T notice of the increase before expiration of the lease,
then L may properly demand pmt of the higher rent if T remains

3. Tenant’s Tort Liability

a. A tenant is typically liable even where landlord has expressly promised to make
repairs. Liable to third party invitees for failure to correct dangerous conditions

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iv. LANDLORD’S DUTIES & TORT LIABILITY
1. Duty to Deliver Possession
a. Majority Rule (English Rule) – requires the landlord put the testator in actual
physical possession of the premises. If there is a holdover, the landlord has
breached the contract and the testator gets damages.
b. Minority Rule (American Rule) – does not require landlord to put tenant into
possession but merely give the tenant legal possession (NOT physical).

2. Implied Covenant of Quiet Enjoyment

a. Applies to residential AND commercial leases, and implicitly provides that T has
a right to quiet use and enjoyment of the premises without interference from L
or someone else with paramount title
i. Breach by actual wrongful eviction – occurs when landlord/title holder
wrongfully evicts tenant or excludes tenant from the premises
ii. Breach by constructive eviction – Three elements: SING
1. SI – Substantial Interference: due to landlord’s actions or
failures (substantial doesn’t necessarily mean permanent, but
rather: CHRONIC problems).
2. N – Notice: tenant must tell landlord about the problem and
landlord must fail to act.
3. G – Goodbye: tenant must vacate within a reasonable time after
the landlord fails to fix the problem.
b. Landlord Liability for acts of other tenant’s
i. Generally, NOT liable, except L must not permit a nuisance and must
control common areas.
c. In event of a breach tenant may move out, terminate the lease, and collect
damages from L/title holder/both for breach

3. Implied Warranty of Habitability

a. Applies only to residential leases; non-waivable, and implicitly provides that
premises must be fit for a basic human dwelling.
i. Bare living requirements must be met.
b. In the event of a breach, the tenant may (MR3)
i. Move out and terminate the lease
ii. Repair and deduct from rent
iii. Reduce rent or withhold all rent equal to fair value of rental in light of
defects (must put money in escrow account)
iv. Remain in possession, pay full rent and sue for damages
c. Retaliatory Eviction: If tenant lawfully reports the landlord for housing code
violations, the landlord is barred from penalizing the testator, for example, by
terminating the lease, raising the rent, harassing T, or taking other reprisals.

4. Landlord’s Tort Liability

a. Common Law
b. Modernly, there are 5 exceptions: (CLAPS)
i. Common areas – landlord must maintain all common areas (hallways
and stairwells)
ii. Latent defect rules – landlord must warn tenant of hidden defects that
landlord knows about or should know about

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 iii. Assumption of repairs – landlord who voluntarily makes repairs must
complete them with reasonable care
iv. Public use rule – landlord who leases public space (convention halls)
and who should know, because of the nature of the defect and the
length of the lease (usually short term) that tenant will not repair, is
liable for any defects on the premises
v. Short term lease (3 months or less) of furnished dwelling – landlord is
liable for any defects, known or unknown, which harm the tenant

v. ASSIGNMENT & SUBLEASE

1. Absent a prohibition on the lease, tenant may freely transfer his or her interest in whole
(assignment) or in part (sublease).
2. Assignment:
a. Occurs when T transfers the entire remaining lease.
b. Landlord and assignee now have privity of estate – meaning L and assignee are
liable to one another for all the promises in the lease that “RUN WITH THE
LAND” – IE: “TOUCH AND CONCERN” the land (common examples: promise to
pay rent, repair, to paint).
c. L and assignee are in privity of estate, but are NOT in privity of contract, unless
assignee assumed all promises in the original lease.
d. L and T maintain privity of contract but are no longer in privity of estate (L and T
remain secondarily liable to one another).
3. Sublease:
a. Occurs when T transfers a portion of the lease. A sublessee is NOT in privity of
contract or privity of estate with the landlord.
b. L and T remain in both privity of estate and privity on contract.
4. Covenants Against Assignment/Sublease
a. Enforceable; strictly construed against L (restricting one doesn't restrict other)
b. Waiver - If T assigns and L is aware and does not object, covenant is waived
i. Permission given once will waive clause permanently unless L states
otherwise when giving permission

vi. FIXTURES
1. A fixture is a once movable chattel that, by virtue of its annexation to realty –
objectively intent to permanently improve realty. It passes with ownership of the land.
a. Cts consider (1) degree of attachment, (2) general custom- whether normally
taken by sellers, (3) degree of harm to premises if removed and (4) trade fixture
b. Trade Fixtures are NOT fixtures and can always be removed before lease ends
i. Exception - Structural additions to real property can never be removed
2. Removing fixtures equals voluntary waste.
3. T must remove fixtures before lease ends. Sellers must remove before closing

F. ADVERSE POSSESSION (ROACH)

i. Under the doctrine of adverse possession, a person may acquire title to land he does not
possess if the following elements are met. These elements are gauged objectively and thus the
possessor’s subjective state of mind is irrelevant. (ROACH):
1. Running of the statute - Begins when true owner can bring suit. Usually 20 years
2. Open and Notorious – sort of possession the usual owner would make, under the
circumstances
3. Actual and exclusive – entry must be literal, cannot be symbolic, & must exclude others

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 4. Continuous – uninterrupted for the statutory period
5. Hostile – possessor does not have true owners consent to be there
ii. TACKING:
1. One adverse possessor may tack on to his time with the land his predecessor’s time, so
long as there is privity, which is satisfied by any non-hostile nexus, such as blood,
contract, deed, or will.
a. NOT ALLOWED WHEN THERE HAS BEEN OUSTER–ouster defeats privity
iii. DISABILIITES
1. Statute of limitations will not run against a true owner who is afflicted by a disability AT
THE START of the adverse possession. Common disabilities include insanity, infancy,
imprisonment. If adverse possession already started, new disability does not matter
iv. MARKETABILITY - Adversely possessed land is not marketable - must bring suit for quiet title

II. NON-POSSESSORY INTERESTS/SERVITUDES

A. EASEMENTS
i. An easement is a non-possessory property interest that entitles its holder to some form of use
or enjoyment of another’s land, called the servient tenement.
ii. Affirmative & Negative Easements
1. Affirmative Easement:
a. The right to do something on the servient tenement. Most easements are
affirmative easements.
2. Negative Easement:
a. Entitles the holder to prevent the servient landowner from doing something
that would otherwise be permissible. Must be created expressly by writing
signed by the grantor, and typically only recognized in four categories (LASS):
light, air, support, or stream water from an artificial flow.
iii. Easements Appurtenant & Easements in Gross:
1. Easement Appurtenant:
a. Easement is appurtenant when it benefits its holder in his physical use or
enjoyment of another property. (REQUIRES 2 properties). The dominant
tenement gets the benefit, the servient tenement bears the burden.
b. Passes automatically with the dominant tenement, regardless of whether it is in
the conveyance. Passes automatically with the servient tenement unless the
new owner is a BFP for value without notice.
2. Easement in Gross:
a. Easement in gross confers upon its holder only some personal or pecuniary
advantage that is not related to his use or enjoyment of his land. Here,
servient land is burdened. However, there is no benefited or dominant
tenement.
b. Only transferrable if it is for commercial purposes.

iv. Creation of Easements (PRING):

1. Prescription
a. An easement may be acquired by satisfying the elements of adverse possession
(ROACH). Permission defeats the acquisition of an easement by prescription –
the use must be hostile. Use does not have to be exclusive.
2. Reservation
a. Arises when grantor conveys title to land but reserves a right to continue use
for a special purpose

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 3. Implication - Prior Use
a. Court ordered implication of easement when the 1) prior to division of SINGLE
TRACT, (2) apparent and continuous use exists on "servient part, (3) that is
reasonably necessary for enjoyment of "dominant part", and (4) the parties
intended the use to continue after division (does not apply for views/sunlight)
4. Necessity
a. An easement of right of way will be implied by necessity if grantor conveys a
portion of his land with no way out except over part of the grantor’s remaining
land. Servient owner can choose rsbl location.
5. Grant
a. An easement to endure for more than one year must be in writing that complies
with the formal elements of the deed. SOF applicable. The writing is a called a
deed of easement.
v. Scope of Easement
1. Determined by the terms of the grant or the conditions that created it
2. If easement silent on use, cts assume it was intended to meet both present and future
needs (last forever), including rsbl development of the dominant tenement
a. Must likely have been contemplated by parties at time easement was granted
3. If scope exceeded, it's surcharged but DOES NOT terminate the easement - injunction

vi. Repair - Holder of the benefit of the easement is responsible for making necessary repairs
1. Can go on servient estate to make repairs, but must make rsbl restoration after doing so

vii. Termination of Easement (END CRAMP):

1. Estoppel
a. Servient owner materially changes his or her position in reasonable reliance on
the easement holder’s assurances that the easement will no longer be enforced.
2. Necessity Ends
a. Expires as soon as the need for the easement ends unless easement
attributable to necessity was created by express grant. In such cases, it will not
end automatically once the necessity ends.
3. Destruction - Involuntary
a. Destruction, other than the willful conduct of the servient owner, will end the
easement
4. Condemnation
a. Condemnation by eminent domain will end the easement.
5. Release
a. A written release, given by the easement holder to the servient owner will end
the easement
6. Abandonment
a. The easement holder must demonstrate by physical action the intent to never
use the easement again. Mere nonuse or mere words are insufficient to
terminate by abandonment.
7. Merger Doctrine
a. The easement is extinguished when title to easement and title to servient land
become vested in the same person. If the land is later separated, the
easement will not be revived.
8. Prescription
a. The servient owner may extinguish the easement by interfering with it in
accordance with the elements of adverse possession. (ROACH).

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B. LICENSE
i. A license is a mere privilege to enter another’s land for some delineated purpose. It is not an
interest in land. Failed easement will result in a license
ii. Licenses are freely revocable at the will of the licensor unless estoppel applies to bar the
revocation – which applies when the licensee has invested substantial money, labor, or both in
reasonable reliance on the license’s continuation (then license becomes easement by estoppel)
iii. The SOF does not apply to licenses. They can be made orally.

C. PROFIT
i. Entitles its holder to enter the servient land and take from it the soil or some substance of the
soil; such as minerals, timber, oil. Requires a writing. Includes implied easement to enter land
ii. The profit has all of the same rules as easements above
iii. Profit may be extinguished through surcharge (misuse that overly burdens servient estate)

D. COVENANTS
i. The covenant is a promise to do something (affirmative covenant) or not do something
(negative covenant) related to land. A covenant is not the grant of a property interest, but
rather a contractual limitation or promise regarding the land. Breach is remedied by money
damages.
ii. Covenants run with the land, which means subsequent owners may be bound by the covenant
as long as the following are met:
1. Burden to Run With the Land
a. Writing – The original promise between original parties was in writing
b. Intent – Original parties intended covenant to run
c. Touch and Concern the land –The promise must affect the parties’ ability to use
the land
d. Vertical Privity – refers to the nexus between original and subsequent owner.
Simply requires some non-hostile nexus, such as: contract, devise, descent. The
only time vertical privity is not there is if subsequent owner acquired through
adverse possession.
e. Horizontal Privity – refers to nexus between original parties, which requires
they share an interest in the land independent of the covenant
i. (ex - landlord/tenant, grantor/grantee, mortgagor/mortgagee).
f. Notice – Notice typically comes when the subsequent purchasers takes the
property.
2. Benefit to Run with the Land (WITV)
a. Writing – The original promise between original parties was in writing
b. Intent – Original parties intended covenant to run
c. Touch and concern the land – The promise must affect the parties’ ability to use
the land
d. Vertical Privity – non-hostile nexus between original owner and subsequent.
Horizontal privity is NOT required.
iii. Termination - May be terminated by (1) written release, (2) merger of two estate, (3)
condemnation, or (4) changed conditions if ALL lots are affected

E. EQUITABLE SERVITUDES
i. An equitable servitude is a covenant that equity will enforce against the assignees of the
burdened land who have notice of the covenant. It is accompanied by injunctive relief.
Generally, like real covenants, equitable servitudes are created by a promise to do or not do
something on land in a writing.

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 1. Exception to Writing Rqmt: Negative Equitable Servitude Implied by Common Scheme
a. In a developer’s subdivision, if some deeds contain negative covenants and
others do not, the negative covenant will be binding on ALL parcels as long as
the following are met:
i. (1) When the sales began, the sub-divider had a general scheme of
residential development that included defendant’s lot, AND
ii. (2) The Δ lot-holder had notice of the promise contained in the prior
deeds. Notice includes (AIR):
1. Actual notice: defendant had literal knowledge of the promises
in the prior deeds
2. Inquiry notice: neighborhood conforms to the common
restriction (CONSTRUCTIVE NOTICE)
3. Record notice, meaning the form of notice sometimes imputed
on buyers on the basis of the publically recorded documents
(CONSTRUCTIVE NOTICE)
ii. Requirements for the Burden to Run
1. Writing – The original promise between original parties was in writing
2. Intent – Original parties intended covenant to run
3. Touch and concern the land – The promise must affect the parties’ ability to use the
land
4. Notice – Successors of burdened land hat notice
iii. Requirements for the Benefit to Run
1. Intent – Original parties intended covenant to run
2. Touch and concern the land – The promise must affect the parties’ ability to use the
land
iv. Equitable Defenses
1. Unclean hands (Π is in violation), estoppel (rsbl person would think covenant abandoned
or waived), laches (did not bring suit in rsbl time or watched then brought suit),
acquiescence/abandonment (Π let others do the same thing).
2. Changed Conditions:
a. The changed circumstances alleged by the party seeking release from the terms
of an equitable servitude must be so pervasive that the entire area has
changed – mere pockets of limited change not enough.
v. Termination same as covenants (written release, merger, condemnation, changed conditions)

III. CONVEYANCING
During escrow period, K law controls. After closing, real property law controls
A. LAND SALE CONTRACTS
i. Statute of Frauds
1. The land contract must be in writing, signed by the party to be bound (defendant) and
must describe the property and state some consideration.
2. PART PERFORMANCE EXCEPTION to statute of frauds – if you have two of the following
three, the doctrine is satisfied and equity will decree specific performance of an oral
contract for the sale of land.
a. (1) Buyer takes possession
b. (2) Buyer pays all, or part, of the purchase price and/or
c. (3) Buyer makes substantial improvements
ii. Equitable Conversion
1. Equity regards as done which ought to be done, so, once contract is signed, buyer owns
the land subject to the condition that he pay the purchase price at closing.

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 2. Destruction – buyer bears the risk of loss unless the contract says otherwise (if there is a
destruction between contract signing and closing)
3. Death of one party will generally not affect these rights; survivor deals w/ others' estate

iii. Implied Promises in Every Land Contract

1. Seller Promises to Provide Marketable Title at Closing
a. Every contract contains an implied covenant that the seller will provide
marketable title at closing. Title need not be perfect, just free from reasonable
doubt, lawsuits, and the threat of litigation. Problems include:
i. Defects in the Chain of Title – shows potential threat of litigation
ii. Adverse Possession – if even part of the title rests on adverse
possession, it is unmarketable
iii. Encumbrances – marketable title means unencumbered fee simple, no
servitudes or mortgages or liens unless buyer waives them
1. Exception - Beneficial easement visible/known to the buyer
does not constitute an encumbrance
iv. Zoning Violations – title is unmarketable when property violates a
zoning ordinance
v. Future Interests – Title may be unmarketable where the owners of the
present and future interest attempt to convey a fee simple absolute
title if the future interests are held by persons who are unborn or
ascertainable.
2. Seller Promises Not to Make Any False Statements of Material Fact
a. Failure to disclose latent, material defects is a material fact problem – seller is
liable for material lies, and material omissions
b. Disclaimers of liability do not excuse seller from liability for fraud or failure to
disclose
3. NO Implied Warranties of Fitness or Habitability
a. These doctrines do not apply to land sale contracts – “caveat emptor” – buyer
beware.
b. EXCEPTION: implied warranty of fitness and workmanlike construction applies
to the sale of new home by a builder-vendor.
4. Remedy after rsbl time to cure - rescission, damages, SP w/ abatement, quiet title
iv. Measure of Damages for breach of land sale K
1. Difference between K price and value of property at time of breach
2. Liquidated damages clauses will be enforced if rsbl (10% or less)
v. Time of Performance - Generally specified in the K. If a party fails to perform on a specified
date, he can tender performance in a rsbl time thereafter unless K says time is of the essence or
parties' intent is clear

B. DEEDS (THE CLOSING)

On closing, K merges into the deed & all K provisions are extinguished (can only sue on deed terms)
i. Lawfully Executed:
1. Deed must be in writing and signed by the grantor but need NOT recite consideration,
nor must consideration pass to make a deed valid
2. Deed must include the description of the land – does not have to be perfect but simply
have an unambiguous description and a good lead to identity of property (PER okay)
ii. Delivery Requirement:
1. Deeds must be delivered to the transferee; satisfied if the grantor intends to be bound
by the deed. Physical delivery of deed/immediate possession of land NOT necessary

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 2. Delivery can be by manual delivery, notarized acknowledgment by the grantor,
recording, through an agent/mail, through escrow – anything showing grantor’s intent.
3. The deed also MUST BE ACCEPTED. An express rejection defeats delivery.
4. Once deed is delivered, it cannot be cancelled (even by destruction)
a. Must re-convey to original grantor if want to undo the transfer
5. Condition – if a deed, absolute on its face, is transferred to grantee with an ORAL
CONDITION – the oral condition is VOID, delivery is complete, and the deed passes
without the oral condition.
iii. Deed is voidable if executed by a minor or incapacitated person or is obtained through fraud in
the inducement, duress, undue influence, mistake, or breach of fiduciary duty
1. A voidable deed will be set aside only if the property has not passed to a BFP

C. COVENANTS OF TITLE/ESTOPPEL BY DEED

i. Quitclaim Deed
1. Contains no covenants, grantor isn’t even promising that he has the title to convey.
2. BUT – grantor did implicitly promise, in the land contract, to provide marketable title AT
CLOSING – seller is not liable for any problems after closing.

ii. General Warranty Deed

1. A general warranty deed warrants against all defects in title; including those due to
grantor’s predecessors, with 3 present covenants and 3 future covenants:
a. PRESENT COVENANTS – can be breached at time of delivery – thus, statute of
limitations begins to run from moment of delivery
i. Covenant of Seisin – grantor promises he owns this estate
ii. Covenant of Right to Convey – grantor has the power to transfer – no
temporary restraints on alienation
iii. Covenant against Encumbrances – no servitudes or liens on the
property
b. FUTURE COVENANTS – not breached until grantee is disturbed in possession at
some future date after the closing
i. Covenant for Quiet enjoyment – grantee won’t be disturbed in
possession by a third party’s lawful claim of title
ii. Covenant of Warranty – grantor promises to defend grantee against
any lawful claims of title brought by others
iii. Covenant for Further Assurances – grantor will do what is needed in the
future to perfect title if it turns out to be flawed
2. Future covenants run w/ the land, so subsequent purchasers can sue for breach;
however, damages are limited to purchase price received by the warrantor

iii. Statutory Warranty Deed

1. In a statutory warrant deed, the grantor warrants only on behalf of himself – he makes
no representations on his predecessors in interest. 2 promises:
a. He has not conveyed property to anyone other than grantee
b. Property is free from encumbrances made by grantor

iv. Estoppel by Deed

1. If the grantor purports to convey an estate in property she does not own, grantor's
subsequent acquisition of the estate will automatically go (inure) to the benefit of the
grantee, unless the after-acquired title was transferred to a BFP, in which case the BFP
prevails over the grantee. Only applies to warranty deeds

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D. CONVEYANCES BY WILL
i. Ademption - If the will purports to devise a specific parcel of land, but T does not own the land
at the time of her death, the gift is adeemed and the testamentary gift fails
1. Exception - If gift of property is in escrow at time of T's death, devisee will receive the $$
ii. Exoneration - C/L- if devised property was subject to mortgage or lien, lien had to be
exonerated by estate. Modernly - modern majority is to abolish this doctrine and devisee takes
subject to mortgage
iii. Lapse/Anti-Lapse - C/L - If beneficiary died before T, the gift lapsed and was void. Modernly -
Most states have anti-lapse statutes that let gift pass to certain relatives

E. Ownership Interest in Trust

i. Trusts - Express pvt trust is created, in signed writing, by settlor, who transfers title to real
property to a trustee who hold legal title, who holds and manages the property subject to a
fiduciary duty to use highest care and skill for the beneficiaries of the trust. (Subject to RAP)
ii. Charitable Trust - same but does not name individuals but gives to established charities or
large groups of people. (Not subject to RAP…keep cy pres in mind

F. RECORDING
i. At common law, if a grantor conveyed a property twice, the first in time generally prevailed.
Modernly, recording acts are in place to protect BFP’s from other “secret” transactions.
ii. NOTICE STATUTES:
1. Under a notice statute, a subsequent BFP is protected as long as he did not have notice
of any prior transfer. (watch for transfer to someone not for value)
a. EX: A conveyance of an interest in land shall not be valid against any subsequent
purchaser for value, without notice thereof, unless the conveyance is recorded.
iii. RACE-NOTICE STATUTES:
1. Under a race-notice statute, a subsequent BFP is only protected if she takes without
notice AND records first.
a. EX: Any conveyance of an interest in land shall not be valid against any subsequent
purchaser for value, without notice thereof whose conveyance is first recorded.
iv. TYPES OF NOTICE (AIR):
1. Actual
2. Inquiry (constructive) = Charged with this notice where whatever an exam of the land
would show; buyer duty to inspect before transfer of title
3. Record (constructive) = Notice of properly recorded deed.
v. Shelter Rule
1. One who takes from a BFP will prevail against any entity that the transferor-BFP would
have prevailed against, even if he had knowledge of a prior transfer. He “steps into the
shoes” of the BFP.
vi. Wild Deed
1. If a deed, entered on the records, has a grantor unconnected to the chain of title, the
deed is a wild deed. It is incapable of giving record notice of its existence.
vii. Other Interests Protected - Protects subsequent mortgages, but not judgment creditors
viii. Interpreting Statutes-"w/o notice/in good faith" and "recorded first/first recorded"=race notice
ix. If recording rqmts not met, apply first in time first in right (subsequent purchaser loses)

G. MORTGAGES
i. A mortgage is the conveyance of a security interest in land, intended by the parties to be
collateral for the repayment of debt. If a mortgagor defaults on the mortgage, the mortgagee
may foreclose on the property and sell the property to satisfy the debt.
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 ii. REDEMPTION:
1. Redemption in equity – equitable redemption is universally recognized up to the date of
the sale. At any time prior to the foreclosure sale the debtor can try to redeem the
land.
a. Once foreclosure occurs – equitable redemption is gone
b. Redemption done by paying off missed payments plus interest plus costs
c. The right of redemption CANNOT be waived – this would be clogging the equity
and is not allowed.
d. Acceleration Clause – when there is an agreement in the contract that the
creditor may require the debtor to pay the ENTIRE DEBT plus interest plus costs
to redeem the property.
2. Statutory redemption - Recognized in one-half of the states: gives the debtor-mortgagor
a statutory right to redeem for some fixed period after the foreclosure sale has
occurred. Amount to be paid is usually the foreclosure sale price, not the amount of the
owned debt.
iii. PRIORITIES:
1. Priorities of Mortgages
a. As a creditor, you must record, until you record, your priority doesn’t exist
b. Once recorded, priority is determined by the norm of first in time, first in right
c. Purchase Money Mortgage: a mortgage given to secure a loan that enables the
debtor to acquire unencumbered land. It is given superiority, as long as it's
recorded, if foreclosure occurs on the subsequently purchased property.
d. Foreclosure of senior interest will terminate the junior interest AS LONG AS
JUNIOR INTEREST IS GIVEN NOTICE. Senior interests continue in place and
buyers take property subject to the senior mortgage (not personally liable for
mortgage but senior mortgage can still foreclose on property)
2. Modification of Priority:
a. Subordination Agreement: are allowed. A senior creditor may agree to
subordinate its priority to a junior creditor.
b. If senior mortgage loans more money or increases interest, it loses its priority
to the extent of the change
3. "subject to" = not personally liable. "assumes" = personally liable
4. Order of Pmt - costs of foreclosureforeclosed mortgagejunior mortgagesowner
iv. Mortgagee can freely transfer the note and the mortgage will always follow the note

IV. MISCELLANEOUS ISSUES

A. LATERAL/SUBJACENT SUPPORT
i. LATERAL Support
1. Ownership of land includes the right to have the land supported in its natural state by
adjoining land.
a. Land in Natural State: If land is in its natural state, an adjoining landowner is
strictly liable if his excavation causes adjacent land to subside.
b. Land with Buildings: If land has buildings on it, an adjoining landowner is
strictly liability if would have collapsed in natural state, otherwise he is only
liable if the excavation was done negligently.
ii. SUBJACENT Support - The underground occupant of land (mining) must support surface and
buildings existing on the date the subjacent estate was created. Liability for subsequently
erected building requires negligence.

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B. WATER RIGHTS
i. WATERCOURSES
1. Riparian Doctrine:
a. Water belongs to those who own land bordering the water course
b. Those who share the right of reasonable use of water, may not unreasonably
interfere with other’s water.
c. Natural Flow Theory – A riparian owner’s use resulting in substantial or material
diminution of water’s quantity, quality or velocity is enjoinable.
d. Reasonable Use Theory – MOST COMMON – all riparians share the right of
“reasonable use” of the water – courts balance utility of owner’s use against
gravity of harm.
e. Natural v. Artificial Use – Natural uses prevail over artificial uses.
2. Prior Appropriation Doctrine:
a. Individuals acquire rights by actual use, and appropriative rights are determined
by priority of beneficial use – first in time/first in right.
ii. GROUNDWATER (percolating water)
1. Surface owner entitled to make reasonable use of groundwater – may not be wasteful.
iii. SURFACE WATER
1. Water which comes from the rain, springs or melting snow and have not yet reached a
natural watercourse or basin.
a. Natural Flow Theory - Owners cannot alter natural drainage patterns, but can
use rsbl means to deal with surface waters
b. Common enemy rule – surface water can be dealt with in a reasonable way
c. Prohibits unnecessary harm to other’s land
C. EMINENT DOMAIN
i. The Fifth Amendment prohibits the government from taking private property unless it’s for
public use and the government pays just compensation.
1. Takings
a. Explicit – government condemnation
b. Implicit or Regulatory – private claim that government regulation has effect of a
taking – which is a categorical taking of all economic value which leaves owner
left with NO reasonable return on investment.
2. Just Compensation
a. If owner succeeds with implicit taking claim, government must either
compensate owner or terminate the regulation and pay damages.
ii. Condemnation/taking of leased property
1. Partial taking - T must still pay full rent but shares in the condemnation award
2. Complete taking - T does NOT have to pay rent AND shares in condemnation award, but
only to the extent that fair rental value of the property exceeds amount of rent due
D. ZONING
i. States have the power to reasonably control land use under its police power for health, safety
and welfare of its citizens.
1. Variance – proponent of variance must show
a. (1) Undue hardship not self-imposed
b. (2) Variance won’t decrease neighboring property values
2. Nonconforming use – once lawful, existing use now deemed nonconforming by a new
zoning ordinance: cannot be immediately eliminated unless just compensation is paid,
otherwise it could be deemed an unconstitutional taking.

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3. Unconstitutional exactions – Exactions are amenities government seeks in exchange for
granting permission to build – not allowed. In order to pass constitutional muster, the
exactions must be reasonably related both in nature and scope

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V. Commonly Tested Areas/Hypos
A. Life estate created by implication (O A & B after death of my wife)
B. Law of waste (voluntary = willful; permissive = neglect; ameliorative = improvement)
C. Future Interests
i. MBE - Classifications and RAP Qs
ii. Reversion (in grantor)
iii. RAP
1. Perpetuities Savings Clause
2. Rights of first refusal (extending to X and heirs)
D. Non-Freehold Estates
i. Tenancy for years (must comply w/ SoF if over 1 yr)
ii. Tenant's duty to repair to prevent invitee injury, regardless of what L says
E. Covenants/Easements and burden/benefit running with the land
F. Negative covenant implied by common plan or scheme (covenant on subdivisions)
G. Deeds
i. Formalities to pass title
1. Execution - description problems
2. Delivery - only intent required, not possession
H. Recording statutes
i. If recording rqmts not met, apply first in time first in right (subsequent purchaser loses)
ii. Priorities of mortgages (applying recording statutes)
I. Right to lateral support of land

VI. NOTES
A. "survivor of A or B" means whichever of the two lives the longest

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