I. Interests in land (Right of ownership)
A. Non estates (more limited, NOT possessory)
1. easement
a. right to go on someone else’s land and do something special
2. profit
a. right to go on someone’s land and extract natural resources
3. covenant
a. enforceable promise made regarding land
4. rents
B. Estates (possessory- now or future)
1. non freehold
a. tenant
1) fixed term,
2) periodic,
3) at will
2. freehold
a. life (measured by a human life)
1) To A for life.
2) Can be transferred, but life measure by still same.
b. fee
1) tail (entailed, stay in family)
a) “to A and the heirs of her body”
b) NOT OK
c) Now just fee simple absolute
2) simple
a) defeasible (might not last forever)
(i) F.S. determinable
(1) “until, so long as”
(2) Possibility of reverter
(3) Reverts to grantor
(4) Automatically
(i) (so adverse possession clock can run)
(ii) F. S. on condition subsequent
(1) Condition, reenter
(2) Right of entry
(3) Not automatic
(i) Must give notice or
(ii) Reenter or
(iii) Sue
(iv) Adverse possession never runs until these things
(4) Reverts to grantor
(iii) F. S. subject to executory interest
(1) So long as, Until
(2) Executory interest
(3) Reverts to someone OTHER THEN the grantor
(4) Automatically
(i) Adverse possession clock can start running
b) absolute (last forever)
(i) Fee simple absolute= all rights can have in property
(ii) “to A and her heirs” traditionally, now don’t need
II. Future interests- notes
A. Created in Grantor
1. Possibility of reverter-determinable
2. Right of entry –condition subsequent
3. Reversion- interest less then own
B. Created in other
1. Remainder (need all 4 elements)
a. Created at same time and deed as prior estate
b. Only follow life estates
c. Never cut short prior life estate
d. No built in time gap
2. Executory interest
a. So long as (shifting)
b. To take possession when (springing)
C. Vested/contingent
1. vested – know who it is
a. subject to open
1) when there is a class of people and we already have at least one
2) “to A for life and then B’s children” IF B has one child
2. Contingent –unascertainable and IF clause
a. Class closes when condition happens. (to A for life then B’s children) the rest of B’s children are out of luck.
D. Waste
1. Future interest owner can enforce against life estate owner
2. kinds
a. Voluntary waste
b. Permissive (allow) waste
c. Must keep it from being damaged by weather, don’t have to maintain
d. Financial waste-
1) fails to pay property taxes, mortgage
e. Ameliorative waste No except:
1) Neighborhood change makes current use feasible
2) Building replaced with one = or greater value
3. Remedies
a. Damages and injunction
E. Rule of perpetuity
1. rule; only valid if vest/fails within 21 years after a life in being”
2. applies to:
a. contingent remainders
b. executory interest
c. option to buy land
d. class gifts
e. right of first refusal
3. does NOT apply to
a. vested remainders
b. interests created in the grantor
c. Two charities (or all charities) exempt
4. life in being (anyone in problem)
5. EFFECT
a. Takes out the clause that is void, but leaves the rest (cross out until sentence makes sense).
III. Restraints on alienation
A. Alienation; transferring an interest in land
B. CT’s don’t like (diff. then restraints on use)
C. Kinds
1. forfeiture restraint
a. right of reentry if you do it
2. promissory
a. just promise not to do it
3. disabling
a. if you do it is void
b. NO all disabling except spendthrift void
D. Factors (more likely to be upheld if)
1. LESS THEN interest is less then fee simple
2. EFFECT LIMITED restraint is limited in time and # of people affected
3. REASONABLE PURPOSE has a reasonable purpose
4. CHARITY the land was conveyed for a charitable use
IV. Trusts
A. Who is involved?
1. trustor/settleor CREATOR
2. trustee ADMINISTRATOR/TITLE HOLDER
3. beneficiaries RECEIVE BENEFITS
B. how create?
1. deed to trustee
2. declare yourself trustee (if already own)
3. by will
4. establish in life and add to in will
C. transferred?
1. can be (except spendthrift trust)
D. Kinds
1. private- individuals must be indetifiable when trust begins to be enjoyed
2. charitable – reasonably numerous and Not individually indentified.
V. Concurrent ownership
A. Tenancy in common
1. presumption
2. all own equal parts of whole property, which can be passed on like normal
3. order of death doesn’t matter
B. Joint tenancy with survivorship
1. when die lose your ownership
2. order of death matters!
3. NEED
a. Unity of time SAME TIME
1) If owned before need strawman
2) Severed if co-tenant transfers their share (then tenancy in common)
b. Unity of title SAME DEED
1) If owned before need strawman
c. Unity of possession (no fence)
d. Unity of interest (same size shares)
4. severed?
a. If co-tenant transfers their share
b. If get mortgage
1) 1/2 jursidictions YES DEED THEORY
2) ½ NO lien theory
c. Judgment? NO
d. Lease? NO severance, but other owner can also lease out property.
C. Rights of co-tenants
1. rents
a. if one co-tenant moves out, the other does not owe rent
b. If co tenant rents out prop, owes ½ rent
c. If co-tenant ouster (bars from house) then owes ½ rental value
2. maintanence
a. Co-tenants must split (reimburse)
b. Even if not living there
c. And what is necessary to preserve property (tax, insurance etc.)
3. improvements
a. co-tenants do not need to pay ½ of any improvements
4. dividing property/partition
a. how
1) in kind- physically
2) By sale- order sold and divide profits
b. Accounting
1) Co-tenant can be credited for improvements
2) Co-tenant can be billed for amount owed
a) Repairs taxes etc.
5. fiduciary duty
a. when one co-tenant buys at forced sale for discount price
b. other tenant has right to buy back old share
6. SLAYER statutes
a. Only for joint tenancy with survivorship
1) Majority of states
a) If co-tenant kills other co-tenant, SEVERANCE no survivorship rights
2) Minority view
a) Killer gets nothing/forfeits all property rights to parcel
VI. Landlord tenant law
A. Tenant Estates- if lease not say assume periodic (by payment)
1. fixed term
2. periodic
a. termination
1) NEED NOTICE
a) 1 full period in advance of termination date (if over year then 6 months)
b) Termination at end of lease period
3. at will- rare, usually unpaid
B. landlord estates
1. rents
2. reversion
C. landlord liability on property
1. NO unless (old situations)- require to show landlord knew or should have known.
a. Latent defect
b. Common area
c. Vacation
d. Leased for public use
e. Covenant to repair (in lease)
f. Negligent attempt to repair
2.
D. Theories of protection for tenants
1. implied covenant of quiet enjoyment
a. residential and non residential
b. broken if
1) directly interfere with tenant’s possession
2) landlord didn’t have title to property
3) previous tenant still there (landlord responsible for getting out)
4) landlord changes locks
a) (full/partial eviction)
b) Tenant gets to remain in rest of space rent free
5) Constructive eviction
a) Place so bad not expected to occupy
b) Must move out
c) Result act/omission from landlord
2. implied warranty of habitability
a. residential
b. standard is : local housing code
c. remedies
1) cancel lease and move out
2) abatment of rent (ct reduce rent until fixed)
3) damages (flow from violations) for breach of warranty (could be some rent refunded)
4) repair it yourself and deduct from rent
d. tenant must give NOTICE and reasonable time to cure
e. NOT get specific performance
E. Termination
1. tenant buys out landlord “release” (both parties agree)
2. tenant gives lease back to landlord “surrender” (both parties agree)
3. tenant leaves and doesn’t come back “abandon”
a. T owes contract rent minus current fair rental value
b. Landlord must mitigate damages
c. Landlord can recover all immediately damages “anticipatory breech”
1) Discount by present value
d. And if relet
1) Tenant owes reletting expenses and
2)
4. property destroyed
a. tenant has option to terminate lease
F. HOLDOVER tenants
1. if hold over is
a. brief or
b. beyond tenant’s control
2. landlord can
a. action in unlawful detainer
b. allow stay and make periodic tenant (old lease 1 yr or less= month/month, old lease 1 yr or more= 1 year).
3. if not
a. tenant still liable for time held over
4. self help eviction
a. NO
G. Assignments and subleases
1. tenant
a. sublease, transfers less then remaining time
b. assignment transfers entire period
c. need consent of landlord
1) if lease says so- for any reason (except illegal discrimination)
2) if lease says landlord can’t withhold without reasonable
a) then business reasons (credit, financial etc.) BUT
b) no using as excuse to raise rents etc.
3) If NEED and tenant transfers without?
a) Transfer is effective
b) But lease is breached and landlord can terminate lease
c) Landlord can sue for damages
d. covenants pass
1) covenants
a) promises to pay rent, maintain prop, repair etc.
2) PASS if
a) Touch and concern land (mostly)
b) And ASSIGNMENT (not sublease)
e. liabilities
1) T1 does not get out of liabilities by either sublease or assignment
a) Only by express release
2) Sublease; T2 is not liable unless lease states
a) But T2 can get evicted if not pay
3) Assignment T2 can be liable rent and covenants that touch and concern (and are express)
2. Landlord
a. Rents and reversion Can assign if sell property
b. Other covenants pass if touch and concern land
1) Maintenance and fixes YES (L1 and L2)
2) Security deposits NO (just L1)
VII. Easements
A. Issues;
1. easement or possessory estate?
2. where?
a. Dominant land benefits
b. Servient land burdened
3. use-scope
4. length or duration (if not fee simple)
B. profit
1. like easement except extract natural resources
C. appurtenant- attached to land
1. easement benefits and is attached to land
2.
a. Servient –
1) Follows if buyer has notice
a) Actual knowledge
b) Recorded
c) Visible
2) Otherwise is BFP
b. Dominant land
1) automatic
D. in gross
1. easement does not directly benefit land and/or is not attached to it.
2. power lines, railroad etc.
3. NEED commercial purpose
E. Creating
1. PINE
2. Prescriptive- similar to adverse possession
a. But based on use not possession
1) CON
2) Continous regular use
3) Open and obvious
4) Non-permissive/hostile
5)
b. How stop it? (must do before adverse possession period runs out)
1) Block way
2) Bring action for injunction
3) Given permission
3. Implied-ct gives when before split
a. Common ownership
b. Continous quasi easement –not count if
1) Same person owned
2) Just looking – must do some tangible activity on servient land
c. Obvious/visible
d. Reasonably necessary/convenient
4. Necessary
a. Common ownership
b. Landlocked
c. Purpose;
1) Access or
2) Utility lines
5. Express
a. Express grant
b. Express reservation
c. 3rd party (to favor)- VOID
F. Scope
1. reasonable changes in technology of use YES
2. other uses NO
3. more land? NO
4. subdivision? Yes if reasonable
5. remedies if dominant owner goes outside scope
a. damages
b. injunction
c. NOT termination of easement
6. repairs
a. if exclusive easement then full duty to repair
b. * if not then both owners duty to repair (presumed)
G. Termination
1. same owner/merger
2. release conveys back
3. estoppel
a. reasonable detrimental reliance on oral
b. exception to statute of frauds
4. abandon
a. long period of non-use
b. intent to abandon
5. prescriptive/adverse possession (statute)
6. No more necessity (for easements by necessity)
VIII. Licenses
A. Limited and temporary
B. NO injunction, just damages
C. NOT property interest
D. Always revocable
E. NOT SOF
IX. Covenants
A. An enforceable promise
B. Elements
1. writing SOF
2. consideration
3. notarized
4. bind and benefit future owners
C. to enforce need P benefited land ,v. D burdened land
D. B’s that run with the land transfer when sold if
E. Remedy?
1. touch and concern?
2. intended to run? Statement about future owners/presume
3. for injunction NEED notice when buy land
4. for Damages NEED horizontal privity (for burdened land)
a. in deed or easement, relates
F. subdivision
1. common plan
a. lots clustered
b. about same size
c. similar covenants
2. benefits
a. reciprocal negative easement/implied covenant to match others
b. implied notice from appearance of neighborhood
c. everybody has standing to sue
1) all lots in subdivision assumed to benefit from all other covenants
G. termination
1. merger
a. 1 owner buys them all
2. waiver/release
a. 100% of owners written permission
3. abandoned
a. implied waiver
b. implied released
c. latches if in equity
4. unclean hands
a. not enforced for those who are also breaking (within this subdivision)
X. adverse possession
A. based on running of statute of limitations for action in ejection
B. must go for 10-20 years (statutes differ by state)
C. 5 elements
1. OCEAN
2. Open and notorious- visible
3. Continuous/regular
4. exclusive (not competing adverse possessors, not true owner)
5. actual- normal use like owner
6. non-permissive/hostile
a. no requirement of state of mind of possessor
D. HOW MUCH?
1. more then actually possessed if
a. entire area in public records
b. Adverse possessor has colorable title (defective deed)
c. Actually possesses part of land
E. T.O. actions
1. sale of land by T.O. after possessor moves in NOT AFFECT
2. nothing T.O. does with title will affect
3. Defenses to adverse possession
a. Infancy
b. Illness
c. Insanity
d. Must have existed when adverse possessor moves in (when last leaves)
F. CAN”T adverse possession unless estate owner has current possessory interest
1. thus can’t take from future interest owner
G. severed mineral estates
1. AP only owns what they act like (living on-surface, mining- mineral rights)
H. Govt. immune
I. Tacking
1. successive adverse possessors
a. OK IF
1) Privity (purported transfer)
a) Deed
b) Will
c) Intestate succession
d) Oral transfer
J. Mesne (mean)
1. profits
2. normally trespassers owe damages and profits
3. when adverse possessor becomes legal, debt goes away.
XI. Recording acts
A. Apply to mortgages and all property interests
B. IF no recording act then first in time WINS.
C. IF recording act and A fails to record, then B might win if…
1. notice-
a. BFP- not need to take directly from O
b. for value
1) VALUE
a) Need to pay MORE then nominal fee
b) Loaning money = Value
c) Valuable legal right
2) ≠ value
a) Gift
b) Given after transfer
c) Judgement lien (cts vary)
3) Value must be contemporaneous
c. and w/o notice
1) actual knowledge
2) in a recorded deed
3) physical occupation (deemed to have looked at property and inquired of anyone living there)
4) *reasonable investigation
2. race
a. whoever records first wins
3. race-notice
a. first BFP who records wins
D. NOT matter if prior purchaser (A) is BFP.
E. EXCEPTIONS
1. non-documented titles
a. adverse possessors
b. prescriptive easements
c. implied easements
d. boundary adjustments (allow or oral agreement)
2. shelter principle
a. only need one subsequent purchaser who wins (then all the rest after him ok)
F. Real estate installment contract/contract for deed
1. recording notice must occur before installments begin to be paid
2. actual notice only applies to payments made after actual notice
a. pro tanto
1) make tenants in common
2) give contract for deed lien
3) allow to finish making contract for deed
XII. fraudulent conveyances
A. NOT OK
B. Can be set aside at request of creditors
XIII. Real estate sale contracts
A. SOF applies
1. need in writing or a memorandum there of; even if don’t have anymore
2. Id of parties
3. Id of property
4. words indicating sale
5. signature of party to be charged
6. terms of payment if not in cash
B. exceptions to SOF
1. part performance
a. elements exist before closing (2/3)
1) possession
2) pay part price (earnest money)
3) improvements
b. buyer doesn’t get damages or specifc performance
c. seller doesn’t get damages but maybe specific performance (cts vary)
C. remedies
1. damages
a. loss of bargain
b. specific performance (if able to do what promised)
c. recission (give back money)
d. liquidated damages
1) if reasonable (10% or less of purchase price)
2) can’t choose actual (unless contract says)
3) specific ok
4) some courts also add: must suffer some actual damage
D. title
1. ok to rescind contract if
a. title is unmarketable
b. title is less then fee simple absolute
c. building overlaps
d. encumbrance (unless discharged at closing)
1) unless benefit property
2. damages- loss of bargain
a. yes if seller bad faith,
b. maybe if seller good faith
3. when
a. MUST assert before closing
E. TIME of performance
1. if ≠ ready until after closing
2. buyer enforce? Yes unless time is of essence
a. time of essence
1) statement in contract
2) notice (reasonable before closing)
3) if very important to one party and other party knows it
b. IF time is of essence then Material breech
1) No longer enforce contract
2) Liable for proveable damages
F. Equitable conversion
1. during executory time of contract
a. seller has personal property interest
b. buyer has interest is equitable title (real property interest)
2. destruction of property
a. if no one’s fault
b. can enforce sale on buyer at full price
1) must credit any insurance payments
c. can change in contract
3. parties die
a. if seller dies passes as personal property
b. if buyer dies passes as real property
XIV. conveying title
A. deed v. title
1. deed- paper, tangible thing that conveys title
2. title- abstract concept,
B. SOF
1. id of parties
2. id of land
3. words of sale
4. sign of grantor
a. forgery- NULL
b. Agents – grantor’s agent is ok if power of attorney in writing or G is present
c. Corporations
1) 2 officers and
2) Corporate seal
C. When effected
1. delivery
a. act of live grantor to live grantee
b. intent of grantor to immediately give
1) theft from grantor by grantee NO
2) statement “get from my drawer when I die” NO
3) recording but never gave to grantee OK
2. escrow
a. give to X-3rd party on condition buyer gives money
b. +no need to gather in one place
c. OK if grantor dies after passing to X
d. If X wrongfully gives deed to Grantee then NULL
D. Covenants of title
1. NONE= quitclaim deed
2.
3. SOME= warranty deed
4. after acquired document doctrine applies to warranty deeds
a. if grantor transfers property he doesn’t own then gets it, grantee gets it
5. present warranties
a. seisin (I own land)
b. right to convey (I have right to transfer)
c. against encumbrances (Land is not encumbred)
d. notes
1)
2) NOT run with land
6. future warranties
a. warranty … (I own land w/ no encumbrances)
b. quiet enjoyment (not disturbed)
c. further assurances (I’ll give you further documents you need to perfect title)
d. notes
1)
2) DOES run with land.
XV. Wills
A. Kinds
1. standard in writing
2. holographic
3. nuncupative- dying and know it
B. need
1. to be 18
2. understand your property
3. know relatives
4. understand nature of will
C. effective after death
D. ademptions
1. specific property bequests only apply to that specific property ≠ value
2. exoneration
a. if inherit property with mortgage, mortgage paid out of personal property assets.
E. Lapse
1. beneficiaries die after will made, before testator
2. then beneficiaries heirs get them (as defined by statute, not their will)
3. applies to individual members of class
XVI. misc
A. new home warranties
1. elements
a. new home
b. structural soundness
c. first purchaser
d. against builder
B. existing homes
1. liable for fraudulent concealment if seller/agent
a. actual knowledge
b. material defect
c. didn’t disclose
C. lateral and subjacent support
1. per se liable if would have collapse w/o house
2. if not show negligence
D. fixtures
1. tenant
a. ok to remove if before end of term and fix damage
2. sale of prop
a. ok to remove by seller unless
1) “objective intent that permanent part of real estate”
3. competing security interest
a. first party to record has it unless
1) purchased security interest and 20 days of installation
E. water rights
1. +riparian owners (next to stream or river)
a. ok to take
2. +percolating water (spring)
a. reasonable amount for all purchases
3. -surface water – discharge to neighbor’s land?
a. Majority say ok
b. Trend says “reasonable care”
XVII. Mortgages
A. Process
1. get loan
2. give mortgage and
3. give promissory note
B. who
1. mortgagor is borrower
2. mortgagee is lender
C. default?
1. ME can accelerate loan and then
a. Foreclose mortgage or
1) Extra $ from sale? To MR “surplus”
2) Not enough $ from sale? Deficiency judgement against MR
b. Sue on note
2. equity of redemption
a. statute, borrower has until forclosure sale to pay off and get back home
b. some states say 1 year after ok if pay buyer purchase price
c. CAN”T waive
d.
D. Substitutes
1. deed of trust- like mortgage
2. real estate installment contracts/ contract for deed
a. ok unless cts conscience shocked.
1) But cts vary on this
3. fake mortgages
a. give O $ for house and then rent back w/ right to buy back
b. some courts say disguised mortgage so right of redemption applies
c. elements
1) owner in financial distress
2) owner stays in possession
3) owner continues to pay taxes, ins etc.
4) price was much less then fair value
E. multiple mortgages
1. priority
a. determined by chronological order, executed and recorded
b. can be changed in agreement by all holders “subordination agreement”
c. Purchase mortgage gets highest priority
1) Seller’s first
2) Other’s second
2. basic rules
a. every mortgage can redeem (buy out) up
b. every mortgage can forclose down.
3. forclosure
a. if all lenders made parties (by service) then paid off by priority and all mortgages foreclosed.
F. Transfers by mortgagors
1. need consent of lender ME?
a. Yes if due on sale clause
b. Exceptions
1) 1-4 family house and not really sale
2. if oK
a. assume existing mortgage
1) if buyer promises to pay
2) remedies
a) foreclose on real estate
b) sue grantee on debt
c) sue MR on debt (secondarily)
(i) then MR can sue grantee/foreclose- subrogation
b. take subject to existing mortgage
1) remedies
a) sue MR
(i) who can then foreclose- subrogation
b) foreclose
G. transfers by mortgagees
1. mortgages go with note automatically (can’t split up)
2. holder in due course holds without regard to personal defenses (????)
3. double selling loan
a. mortgage to A1
b. note to A2
c. means A2 really owns both
XVIII. zoning
A. can regulate
1. use
2. height
3. set back
B. justified by police power
C. city and county get power under state statute
D. ONLY IF in accordance with “comprehensive plan” (need rationale forethought)
E. Procedures
1. rezoning
a. changes use classficiation of land
b. governing body local
c. legislative act
2. variance
a. permission to violate zoning
b. need unique hardship
c. can’t cause unreasonable harm to neighboring land
3. conditional use
a. already zoned for use
b. but particularly problematic here
c. reviewing plans before built
d. usually drive in business, cell towers, funeral homes…
e. as long as related to public welfare ok
F. pre-existing non-conforming use
1. grandfathered initially
2. can be tapered off
3. Can’t expand use
4. can’t change to another non-conforming use
5. can’t abandon
G. Judicial attacks on zoning
1. failure ot follow own ordinance
2. conflict between state statute and local action
3. spot zoning, singling out one property among surroundings
4. denies substantive due process (arbitrary)
5. violate federal fair housing laws
6. taking (by regulation- 3 ways)
a. results in physical permanent occupation
b. regulation so severe no remaining $ value
c. penn central balancing
1) $ impact
2) Reasonable expectations when bought
3) Public purpose
7. exactions
a. govt gives permit/action on condition of
1) OK if
a) Increased public need related to owner’s action
b) Amount of extraction about = to public expense
c) Burden of proof on govt
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