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Property
Property Exam
250
Real Estate & Planning
Post-Graduate
08/15/2011
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Term
occupancy
 Definition
period of time during  which a party posesses and uses real property
Term
Absolute Title NOT
 Definition
defeasible
Term
possession
 Definition
the holding property with the right of disposition
Term
title
 Definition
One may obtain title by mere fact of possession the article
Term
RULE of RATIONE SOLI
 Definition
When a person privately owns a piece of land, they have constructive possession of all of the animals on that land by virtue of possessing the land.
Term
RULE OF ESCAPE
 Definition
Right of possession is lost in animals that are ferae naturae when animal escapes from captor in order to resume normal freedom & has no intention of returning to captor.
Term
Riparian Rights Doctrine
 Definition
allocates rights of landowners along banks and rivers to use the water
Term
Reasonable Use Doctrine
 Definition
an owner is allowed to use a reasonable amount of the water for domestic, agriculture, and manufacturing on riparian land
Term
Navigable waters
 Definition
Riparian owners are not entitled to the exclusive right of the waters to which the state has title.
Term
Navigable-in-fact waters:
 Definition
If a river is not navigable-in-fact, it is the private property of the adjacent landowner. If, however, a river is navigable-in-fact, it is considered a public highway, notwithstanding the fact that its banks are bed in private hands.
Term
Finders
 Definition
does not acquire absolute ownership or title of lost or mislaid property, but he has a claim against all parties other than the rightful owner
Term
o Lost Property
 Definition
accidentally and involuntarily parted with possession and does not know where to find it?
Term
o Mislaid Property
 Definition
it can reasonably be determined that it was intentionally placed & forgotten.
Term
o Abandoned Property
 Definition
: Owner has voluntarily relinquished all ownership without reference to any particular person or purpose; must have intent to give up BOTH title & possession.
Term
• Eascheat
 Definition
where abandoned property is held by an intermediary with no property interest in the property, the state may assume title to the property through eascheat.
Term
Bailment
 Definition
the delivery of property to be held in trust and which is designated for a particular purpose, following the satisfaction of which the property is either to be returned or disposed of as specified.
the rightful possession of goods by one who is not their owner.
Term
Rationae Soli/Embedded
 Definition
i. Where an object is embedded in the soil (rather than lying on the surface), courts have tended to give possession to the owner of the real estate.
Term
Constructive possession:
 Definition
control or dominion over property with actually possessing it (1st possessor is land owner; riparian owner owns the land down to the low tide mark
Term
Treasure Trove
 Definition
i. Under common law, the property rights of treasure trove belong to the finder. However, the modern view applies the rules of lost property.
Term
Bailments
 Definition
: transfer of possession by one person (bailor) to another (bailee) without title of personal property to accomplish a certain purpose under an express or implied (presumably intended) in fact K.
Term
Elements of Bailment
 Definition
(1) Possession of the property (2) Physical custody with intent to exercise control (3) Consent of bailee (4) Knowledge of presence (5) Legal delivery of item.
Term
. Jus tertii defense
 Definition
“third party rights”; defendant argues that P does have a right to possession but says that he is not the true owner and D should not be able to bring the action
Term
Gift Inter-Vivos
 Definition
a gift made during the life time when there is no threat of impending death and delivered with no intent of revocability. The delivery takes place immediately. The title is transferred immediately
Term
Gift Causa-Mortis
 Definition
a gift made in contemplation of the donor’s imminent approach of death. Requirements of gift are strictly enforced. The gift is revoked when the donor recovers or escapes from peril. (defeasance) There must be a delivery. If the donee dies prior to the donor, the gift is revoked. The gift causa-mortis can be revoked at any time. Intent key
Term
Gift causa Mortis Elements
 Definition
Based on Condition subsequent

• Actual revocation
• Recovery
• Death of donee before donor
Term
gift
 Definition
voluntary transfer or property by one person to another without any consideration or compensation.
Term
Elements of a gift inter vivos
 Definition
i. Delivery (dominion and control)
ii. Donative intent
iii. Acceptance (if beneficial, then acceptance is presumed)
iv. Proof of res (thing/object)
Term
Elements of a gift causa mortis
 Definition
i. Delivery (dominion and control)
ii. Donative intent
iii. Acceptance (if beneficial, then acceptance is presumed)
iv. Proof of res (thing/object)
v. Peril to donor (contemplation of death)
vi. Donor has to die from the illness, or disease that caused the peril
Term
Delivery of gift elements
 Definition
i. The essence of the requirement of delivery is that control of the subject matter of the gift must pass from the donor to the donee.
ii. Constructive delivery
iii. Gift through agent
Term
Donative Intent of gift of inter vivos
 Definition
a. Court held that it was a gift inter vivos because there was a clear intent on the part of the donee to relinquish dominion and control of the items. immediately
Term
difference between IV gift and CM gift
 Definition
whether he intended the gift to take effect in praesenti, irrevocably and unconditionally, whether he lives or dies.
Term
Acceptance of gift
 Definition
1. A gift, once given by the donor to the donee can remain in the possession of the donor, in bailment, until the donor is deceased. Declarations and admissions of a gift are acceptable for delivery and acceptance.
Term
Gifts causa mortis
 Definition
revocable/defeasible)
Term
Trusts
 Definition
A trust is created when an owner of personal property delivers the property and transfers the title to a trustee for the sole benefit of another
Term
Trustor: creates the title
 Definition
: creates the title
Term
Trustee:
 Definition
holds legal title
Term
Beneficiary:
 Definition
holds equitable title or interest.
1) beneficiary enjoys beneficial rights to property where as legal title, obligations remain with trustee.
Term
-a trust is different than a will
 Definition
a trust operates in the present where as a will only comes into effect at the moment of death.
Term
Wills need to be:
 Definition
Signed, Acknowledged, Witnessed
Term
devisee:
 Definition
a person to whom real property is given by will
Term
• -devise:
 Definition
• a gift by will of real property
Term
legatee:
 Definition
a person whom legacy or bequest (personal property) in a will is given.
Term
bequest
 Definition
(personal property) in a will is given.
Term
executrix:
 Definition
: a person who gets the residuals because they are the legatee.
Term
Conditional subsequent-
 Definition
something based on happening after (causa mortis)
Term
Conditional precedent-
 Definition
“ “ based on happening before
Term
• Testementary
 Definition
Bound by signature & written agreement of transfer of property; requires a deed or will;
Term
When does title pass: Causa Mortis?. Testiomony G:
 Definition
CM title passes with delievery of property. TG: title doesn’t pass until the death
Term
o Wills: transfer of title occurs
 Definition
at death of the testator; real property is devised & personal property is bequest.
Term
When Grantor execute deed and deposits it with 3rd party
 Definition
Legal title was transferred to the trustee immediately, but not absolute title because trustee owed a duty to the beneficiary.
Term
To constitute a valid gift inter vivos
 Definition
there must be a gratuitous and absolute transfer of the property from the donor to the donee, taking effect immediately, and fully executed by a delivery of the property by the donor & an acceptance thereof by the donee.
Term
When does Title Pass?
 Definition
• Title Passes:
• Inter Vivos-when it was made in present
• Causa Mortis-at death/delivery
• Testimentary- after death
Term
Adverse Possession
 Definition
a method of acquiring good title to real or personal property owned by someone else by holding possession of the property for a statutory period under certain conditions.
Term
ejectment.
 Definition
b. A property owner’s cause of action against a wrongful possessor of it is known as the action of ejectment.
Term
Elements of Adverse Possession (COACH’S)
 Definition
a. Claim of right**
b. Open and notorious
c. Actual possession or exclusive possession
d. Continuous
Hostile” possession (without legal title holder’s permission)

f. (For the) Statutory period
i. SOL begins at the date of hostile entry
Term
• Doctrine of Repose:
 Definition
If you allow someone to be on your land for 21 years, they will be considered by the community as the true landowner because of the negligence of the true title holder.
Term
Adverse Possession Hypo
 Definition
VIII. HYPO: you can put your buildings in. No longer ap- because it takes away your hostile element. To waive claim of AP you can send letter to and get rid of hostility.
Term
Easement by Prescription:
 Definition
right to use the land (rather than own it) which vests after the requirements have been met; the requirements for a prescriptive easement are generally the same as those for adverse possession
Term
color of title
 Definition
(written instrument that is defective for some reason)
Term
CONSTRUCTIVE ADVERSE POSSESSION:
 Definition
CONSTRUCTIVE ADVERSE POSSESSION: One who enters property in color of title (written instrument that is defective for some reason) will gain title of the entire area described in the instrument, even if the adverse possessor only accesses a portion of it. The adverse possessor is said to have actual possession of the portion accessed but has constructive possession of the remaining parcel.
Term
COA od Adverse Possession
 Definition
action in ejectment but after the period runs, the possessor is the owner. If adversely possessed property is sold, the rightful possession is sold, not the title, so the adverse possessor can claim rightful possession.
Term
TACKING
 Definition
When an adverse possessor transfers his or her interest in the property to another, who may continue the adverse possession, both can add 2 or more periods together to make up the statutory period.
i. To tack statutory periods, there must be a transfer of title & periods of possession must be consecutive; must show privity with predecessor (i.e.any relationship such as blood, K, any nexus b/n possessor and predecessor)
Term
Copyright
 Definition
creativity and artistic expressions
CR is limited to those aspects of the work- termed “expression” – that display the stamp of the author’s originality.
o Novelty (originality) Requirement – must be NEW & DIFFERENT.
o Duration of copyright = author’s life + 70 years.
Term
Fair Use Doctrine:
 Definition
To promote progress in scientific and useful arts, Congress may act to secure for limited times to authors the exclusive right to their respective writings and discoveries. (Copyright)
intellectual property may be used to protect the public domain because they can kick around new ideas in an appropriate forum
Term
Patent:
 Definition
deals with invention and novelty iteems. Exclusive right to make new & useful inventions and configurations of useful article.

after 20 years, it’s public domain.
o Duration of patent on invention: 17-20 years of protection; NON-RENEWABLE.
Term
• Trademark:
 Definition
Distinctive Requirement: Distinctive rather than merely descriptive.
• ex. shape of Coke bottles, NBC chimes, Chanel shoe box, colors, etc.
• (2) Must be affixed to a product that must be sold in the marketplace.
• (3) Must be registered with USPTO.
• (4) TM’s can/may be perpetually renewed every 10 years.
Term
adverse possession to a chattel
 Definition
The Statute of Limitations (3 years) begins when the refusal is given.
o Until demand is made & refused, possession of the stolen property by the good-faith purchaser is not considered wrongful.
Term
• Discovery Rule of adverse possession of chattel
 Definition
SOL runs from time that the owner discovers or reasonably should have discovered the whereabouts of the work of art that had been stolen.
o NEW YORK: 3-year Statute of Limitations for recovery of chattel.
• From time of demand & refusal, π has 3 years to bring action.
Term
Discovery rule for AP of chattel when is is stolen
 Definition
1) If the person is a thief or not a bona fide purchaser, the statute of limitations begins to run from the time of the theft.
Term
subinfeudation.
 Definition
The process of breaking down the land from tenures to tenures
Term
Seisin
 Definition
a person has seisin of proerty if he had (1) possession and (2) on of certain types of claims to what might roughly be termed “ownership” of the property
Term
Freehold estates
 Definition
Freehold estates:
Fee Simple
Fee tail
Life estate
which give possession under legal title or a right to hold;
Term
Non-freehold estates
 Definition
Estate for years (e.g. a 20-year lease)
Periodic estate (e.g. a month-to-month tenancy)
Estate at will
Estate at sufferance
which give mere possession; ex. leases
Term
Estates in land are
 Definition
possessory interests in land.
Term
Estates in Land may be
 Definition
Interests may be presently possessory (present estates) OR future interests.
freeholds (which give possession under legal title or a right to hold; ex. fees or life estates), OR non-freeholds (which give mere possession; ex. leases).
Term
Estates in land
 Definition
may be of potentially infinite duration (fee simple) OR limited duration (term for yrs).
Term
Estates in land are different from non-possessory
 Definition
o Estates in land are different from non- like easements, profits, covenants & servitudes.
Term
Words for defeasible fee
 Definition
o Words of hope, intention, expectation, desire do NOT create a defeasible fee; must use conditional language.
Term
There are NO remainder interests
 Definition
with defeasible fees.
Term
FREEHOLD ESTATES IN LAND:
 Definition
Free hold estates have seisen and therefore gives right to legal title or right to hold.
o FEE SIMPLE ESTATE
Term
FEE SIMPLE ESTATE
 Definition
grants the right to possession into the future forever; goes with the land; the ULTIMATE ownership
Term
Future Interest:
 Definition
• Reversion in O (the grantor/creator)
• Remainder in third party if held by someone other than O – “ To A and the heirs of his body, then to B.” B has the remainder in this case.
Term
Fee Simple Absolute
 Definition
i. Infinite duration
ii. Freely transferable and inheritable
Term
O → A for life
 Definition
A owns the possession to title in life estate for his life
if A dies, the reversion in fee simple absolute go back to his estate
Term
. O → A for 10 years:
 Definition
O conveyed away possession for 10 years, O retains a reversion in fee simple absolute
Term
Fee Simple Defeasible
 Definition
has “strings attached”.
Term
Fee Simple Determinable
 Definition
fee simple which automatically comes to an end when a stated even occurs (or fails to occur).
Still a fee simple defeasible.
Term
possibility of reverter.
 Definition
By definition, the creator of a fee simple determinable is left with an interest, i.e. the right to regain title if the stated even occurs.
Term
Fee simple determinable language
 Definition
“so long as…”, “until…”, “during…”; also, a provision that upon the occurrence of the stated event, the property is to “revert” to the grantor
Term
Requirment of order for there to be a fee simple determinable..
 Definition
there must be express language of reversion or termination in the deed.
Term
Fee Simple Subject to Condition Subsequent:
 Definition
A fee simple subject to condition subsequent does not automatically end when the even occurs. Instead, the grantor has a right to take back the property, but nothing happens until he affirmatively exercises that right.
Term
3 requirments of Fee Simple Conditional Subsequent
 Definition
: First, it must indicate that the grant is subject to a condition by such phrases as “upon express condition that,” “upon condition that”, or “provided that”.
b. Right of re-entry: Also, there must generally be a provision that if the stated event occurs, the grantor may re-enter the property and terminate the estate.
C. Must been an affirmative exercise of the right to re-enter after the condition has been broken. If you can’t prove that the conditional language in a fee simple determinable or on a condition subsequent wasn’t met, you cannot re-enter the land
Term
Courts Like FSD or FSSCS
 Definition
FSSCS
Term
iii. Fee Simple subject to executory limitation
 Definition
An executory limitation provides for the estate to pass to a third person (one other than the grantor) upon the happening of the stated event.
A remainder interest is created in the third party and they have the right of entry.
Term
List of Estates
Conveyed by grantor
1. Fee Simple Absolute
2. Fee Tail
4. Fee Simple on a Condition Subsequent
5. Life Estate (determinable, on a condition, executory)
 Definition
List of Estates

1. Fee Simple Absolute None
2. Fee Tail Reversion
3. Fee Simple Determinable Possibility of Reverter
4. Fee Simple on a Condition Subsequent Right of Entry
5. Life Estate (determinable, on a condition, executory) Reversion
Term
Life Estate
 Definition
The life estate is one which lasts for the lifetime of a person.
Term
This type of life estate is called an estate per autre vie.”
 Definition
Life estate per autre vie are devisable and inheritable, such that a new life tenant can devise the right to possession to anyone they please.
Term
Life Tenant does not have power to:
 Definition
power to sell, or even mortgage the property
Term
Life Estate Defeasible
 Definition
A life estate can be subject to a restriction (i.e. determinable, subject to a condition subsequent or subject to an executory limitation) conveying any interest equal or less than what they have; distinguished upon occurrence of certain event before grantee’s death.
Term
Devise: passing of real property
 Definition
Passing of real property
Term
Bequeath
 Definition
passing of personal property
Term
Life tenant duty
 Definition
*make repairs vis-à-vis the future interest.
*pay all property taxes which come due while he holds possession of the property
*Not to create waste

*Can be created in class (O to children of A for their lives).
Life tenant doesn’t have power to mortgage or sell property/ can sell his interest; NOT inheritable.
Term
Types of Life Tenant Waste
 Definition
vi. Doctrine of Waste: Life tenant is entitled to all ordinary uses and profits from the land
1. life tenant cannot commit waste (See below for specific types of waste)
2. Life tenant cannot injure or harm the future interests holders
1. Voluntary/Affirmative waste – actual overt conduct that causes a decrease in the value of the premises; willful acts of destruction
2. Permissive waste – when land is allowed to fall into disrepair (maintenance)
3. Ameliorative waste – must not engage in any changes or innovations that increase the premises value unless all the future interest holders are known and consent
Term
Life Estate measurement
 Definition
The life estate MUST be measured in life terms NEVER in terms of years and is usually measured by the life of the grantee.
Term
There are five kinds of future estates
 Definition
possibility of reverter
right of entry,
reversion
remainder
executory interest
Term
remainder
 Definition
a future interest in one other than the grantor, and which takes effect after the termination of an earlier estate
Term
executory interest
 Definition
which like the remainder is a future interest in one other than the grantor, but which generally takes effect by cutting short a prior interest.
Term
REMAINDERS
 Definition
Interest retained by the grantee or an interest created to anyone EXCEPT the transferor (compared to reversion). Remainders are future interests that can become possessory, only on the expiration of a prior possessory interest created by the same instrument.
Term
Requirements of Remainders
 Definition
Must convey a present possessory estate to one transferee
o Grantor must create a non-possessory estate in another transferee, by the same instrument.
o 2nd non-possessory estate must be capable of becoming possessory only on natural expiration of prior estate
Term
Types of Remainders
 Definition
Contingent and Vested).
Term
Indefeasibly Vested Remainder –
 Definition
Remainder is created an identified alive individual and is NOT subject to a condition precedent.
Term
Vested Remainder subject to Open
 Definition
when a class and addl people subject to be part of a class. Not all people are identified. – To A for life, remainder to A’s children. At the time of the gift A has two children, Y and Z. Result: Y and Z’s remainder’s are vested subject to open (partial divestment) by the birth of any other children. RAP DOES APPLY!!!
Term
Vested remainder subject to complete Defeasance
 Definition
– O to A for life and then to B for life. B’s remainder is never possessory if A dies.
Term
Vested Remainder Subject to Total Defeasance
 Definition
Remainder interest shifted to someone else on occurrence of an event. The express condition is a condition subsequent attached to the remainder.
• Example: O to A for life, remainder to B; but if B smokes to C. In this case A has a life estate, B has a vested remainder subject to complete divestment to a third party (C) if he smokes. C has shifting executory interest in FSA, contingent on B meeting the condition.

• Test: If one clause creates a remainder and another subsequent clause takes it away, the remainder is vested subject to divestment.
• RAP DOES NOT APPLY
Term
Divesting interests are
 Definition
executory interests.
Term
Contingent Remainder:
 Definition
The remainder is contingent when it is subject to a condition precedent which is a condition that must happen BEFORE the remainderman’s interest vests.
o If remainderman is NOT identifiable or alive, the remainder is ALWAYS contingent.
o RAP DOES APPLY!!!
o Example: O to A for life, remainder to B, if he survives A. A has a life estate, B has contingent remainder on A dying before B and O has a reversion if B dies before A’s life estate. If B outlives A he has a divested reversion.
Term
Alternative Contingent Remainder
 Definition
When the grantor provides two or more alternative dispositions after the death of the life tenant.
o RAP DOES APPLY!!!
o Example: O to A for life, remainder to A’s wife, B; if B survives A, or to his surviving children if she does not. A has a life estate. B and the children have alternative contingent remainders subject to B not surviving A and the children survive A. O has a reversion.
Term
EXECUTORY INTERESTS
 Definition
Almost always contingent. An executory interest is similar to a remainder, but is put in a person other than a grantor and cuts short a prior interest. Executory interests are neither a remainder (b/c they do not vest) or a reversion. Springing (out from owner) or shifting interest (from remainder?).
o RAP APPLIES!!!!!!!!!
Term
Springing Executory Interest
 Definition
Is created to become possessory or vested after a time gap b/n it and termination of a prior estate. The estate does not commence until the future, there is a gap of time.
• Example: From O to A for life, and 5 days after A’s death to B. B has a springing executory interest at the death of the life tenant (A). It is springing b/c it will divest O’s reversion 5 days after A’s death. B’s interest is an indefeasibly vested executory interest.
Future estates could also be created that would divest a grantor’s reversion on the happening of a condition. These are called springing interests.
An interest that is to take effect at some point after the date of the conveyance; divests O (grantor)
Rule Against Perpetuities problem? No, because we will know by the end of A’s life whether the condition was met or not.
Term
Shifting Executory Interest
 Definition
An estate that cuts another estate short.
• RAP APPLIES!!!
o Shifting Executory Interest: An estate that cuts another estate short.
• RAP APPLIES!!!
o Shifting Executory Interest: An estate that cuts another estate short.
• RAP APPLIES!!!
• Example: O to Irene for life, remainder to D but if D smokes to Lea. D has a vested remainder that will shift to Lea if D smokes. Lea has a shifting executory interest in FSA.

future interests could be created to give the property to third parties when a condition occurred that terminated a prior vested estate in fee simple—these are called shifting executory interests.

MANY SHIFTING EI WILL VIOLATE THE RAP.
Term
Vested Remainders
 Definition
a remainder is vested if two conditions are met: (1) no condition precedent is attached to it; and (2) the person holding it already has been born and his identity is ascertained.

Indefeasbile Vested
Term
subject to open
 Definition
iii. A future interest is subject to partial divestment when the interest is given to a group of people that may increase in size between the time the gift is made and the time it becomes possessory.
Term
Shifting executory interest
 Definition
an interest which cuts short a prior equitable interest that had not yet naturally terminated; always follow a defeasible fee and cuts short someone other than the grantor (divesting someone other than O)
Term
RAP
 Definition
Potentially applies only to contingent remainders, executory interests and certain vested remainders subject to open.
-The RAP does NOT apply to any future interests created in O, the grantor (e.g. possibility of reverter, right of re-entry, reversion)
-Similarly, the RAP does NOT apply to indefeasibly vested remainders or vested remainders subject to complete defeasance.
Term
4 STEP TECHNIQUE TO RAP
 Definition
I. Determine which future interests have been created by your conveyance.
2.Identify the conditions precedent to the vesting of that suspect future interest
3.Find a measuring life
4. Will we know with certainty, within 21 years of the death of our measuring life, if our future interest holder can or cannot take?
Term
Three types of Tenancies
 Definition
Term for years
Periodic
Tenancy at Will
Term
Term for Years
 Definition
Automatically ends after a fixed period of time.

the lease term for years estate is created by a conveyance.
a. The owner retains a reversion – combined with the tenants interest, together they have a fee simple absolute.

Possession exchange for rent. Tenant buys POSSESSION
Tenant has a term of years subject to a condition subsequent
Landlord has a revision which kicks in after the term of years has expired
Term
Periodic
 Definition
no lease, but tenant pays rent on a regular basis; i.e. month to month or year to year. Landlord must give notice, but the length of the notice differs depending on the tenancy. A tenancy from year to year requires ½ years notice before eviction. Tenancy for any lesser period requires notice equal to length of pd.
Term
Tenancy At Will
 Definition
L leases to T with a provision that either may terminate the arrangement at will.
Term
Implied Covenants for Term for years
 Definition
Landlord
a. Covenant of “seisen” (“I own it.”)
b. Covenant of quiet enjoyment (have not leased the property to someone else)
Tenant
a. Covenant to pay rent
b. Covenant not to commit waste
i. Covenants were interdependent, so the only remedy was for the landlord to sue if the tenant does not pay rent and not evict tenant
ii. If the lease is violated, the landlord does have the right to re-enter (discretionary).
Term
Estate at sufferance
 Definition
This is not really an estate. It is just a way to describe the wrongful possession of land by a T who improperly holds over at the end of his lease.
Term
Landlord Tenant Law
 Definition
leases were conveyances of land now more like contracts
Term
§235-b: Warranty of Habitability
 Definition
1. “In every writte or oral lease or rental agreement for residential purposes the landlord or lessor shall be deemed to covenant and warrant that the premises…are fit for human habitation.
Term
235-c: Unconscionable lease or clause
 Definition
1. If the court…finds a lease or any clause of the lease to have been unconscionable at the time it was made, the court may refuse to enforce the lease or the clause.
Term
Tenant’s Right of Possession and Enjoyment
 Definition
Covenant of Quiet Enjoyment
Waste
Duty to Pay Rent: 2 circumstances –
T in Breach but still in Possession:

o Statute of Habitability
Term
NY Real Prop Law §223-a: requires that landlord “deliver possession.”
 Definition
deliever POSSESSION
Term
American View of Landlord/tenant
 Definition
duty to deliver only legal possession not actual possession
Term
“right of quiet enjoyment” of the lease premises
 Definition
i. The clearest breach exists when the landlord himself interferes with the tenant’s use of the premises. If the landlord literally takes possession of all or part of the lease premises, it is called actual eviction. If he merely interferes with the tenant’s use or enjoyment of the property, there is a constructive eviction.
Term
Privity of K
 Definition
Based on promises (i.e. L promises to allow possession and T promises to pay rent). Rights and Duties of L and T.
Term
Privity of Estate
 Definition
Based on ownership. Responsible for covenants that run with the land, such as paying rent b/c that touches and concerns the land.
• L demises land to T; conveyance of an interest in land. Both L and T own interest in the same piece of land → L conveys possession to T for the whole term.
• Rent is reserved by L, captured by T for L (Rent reserves certain benefits of the land).
Term
Privity of estate
 Definition
the principle significance of an assignment is that it establishes a new landlord-tenant- relationship between the assignee and the original party who did not assign.
Term
Assignment
 Definition
T1 has 10 months remaining on lease and all is transferred to T2. ii. If T1 transfers her entire remaining interests to T2, she has assigned her interest.

see notes page 30
Term
SUBLEASE
 Definition
Not everything is conveyed in a sublease and no privities exist. Only a portion of the leasehold has been transferred.
• T2 is now responsible ONLY to T1 and vice versa (If T2 not paying rent to L, L proceeds against T1 as if sub-lease does not exist.)
Term
Tenancy In Common:
 Definition
An estate shared by two or more people in the same property at the same time. Each tenant in common has a separate “undivided” interest. There is no right of suvivorship between the tenants in common.
a. Alienability: Interests are fully alienable – a tenant can transfer their interests independently of one another during life, and their interests pass by their wills or by intestate succession at death.
b. Features: Each co-tenant owns an individual party with the right to possess the whole; the presumption favors the tenancy in common, when the courts will construe in favor of the tenancy in common.
Term
Ouster
 Definition
= unlawful dispossession of a party lawfully entitled to possession of real property (one co-tenant is denying the other his full use & enjoyment of the land; all can use the property equally).
Term
II. JOINT TENANCY: MUST BE EXPRESSED or else court will assume tenancy in common; Joint Tenancy with Right of Suvivorship:
 Definition
JOINT TENANCY: MUST BE EXPRESSED or else court will assume tenancy in common; Joint Tenancy with Right of Suvivorship:
Term
Joint Tenancy definition
 Definition
Each joint tenant has exactly the same rights in the property; thus one cannot have a greater interest than the other. Each joint tenant has the right of survivorship; that is, if there are two joint tenants, and one dies, the other becomes the sole survivor of the interest that the two of them had previously held jointly.
Term
4 elements for Joint Tenancy- PITT
 Definition
i. Under the traditional common-law view, a joint tenancy exists only where the “four unities” exist (PITT):
1. Time – each interest must vest at the same time
2. Title – each tenant must acquire titled by the same deed or will
3. Identical interests – each tenant must have identical interests in the share and duration
4. Possession – all tenants have a right to possess and enjoy the entire property
Term
Alienability FOR JOINT TENANCY
 Definition
interests are fully alienable inter vivos but inalienable at death; instead of passing to the cotenant’s heirs or devisees, the property “remains” with the survivor(s). If a joint tenant does transfer during his life, they convert their interest into a tenancy in common destroying the survivorship right. Interests cannot be transferred by will.
Term
Severance of the joint tenancy (SPaM):
 Definition
1. Sale by one joint tenant:
a. A joint tenant may convey his interest to a third party. Since this third party does not have the unity of time or title with the remaining joint tenants, the joint tenancy relationship has been severed.

2. Partition:
a. Dividing up and distribution of the land or the sale of the land and distribution of the proceeds. This can be done either by agreement of the parties or by court order at the request of one party.

3. Mortgage
a. Minority view (“title theory of mortgage”) is that the execution of a mortgage by one joint tenant severs the joint tenancy as to that joint tenant’s interest; “Majority view” (“lien theory of mortgage”) states that a joint tenant’s execution of a mortgage on her share does not sever the joint tenancy
Term
Tenancy by Entirety
 Definition
i. Alienability: There is a right of survivorship, like a joint tenancy, but co-tenants cannot transfer their interest independently; cannot be transferred by will.
3. The key feature of the tenancy by the entirety is that it is not subject to severance. So long as both parties are alive, and remain husband and wife, neither one can break the tenancy.
PITT
Term
Termination of Tenancy by Entirety
 Definition
d. Termination:
i. Death of either spouse, leaving the other spouse as the sole survivor
ii. Divorce – then exH and exW become tenants in common.
iii. Mutual Agreement
iv. Execution by joint creditor of both H and W.

2. H cannot secretly transfer the interest to a 3rd party.
H and W ca2. H cannot secretly transfer the interest to a 3rd party.

2. H cannot secretly transfer the interest to a 3rd party.
H and W can’t sever the interest unilaterally
Term
Community Property
 Definition
e. Community Property: Property acquired during a marriage results from the joint efforts of husband and wife. Implicitly, the system recognizes that a wife, even one who stays at home and does only housework and childbearing, contributes as much to the economic well-being of the marriage as does the husband who is the actual wage earner.
i. Alienability: can only be transferred inter vivos if both spouses join in the conveyance; can be disposed of by will.
i. Alienability: can only be transferred inter vivos if both spouses join in the conveyance; can be disposed of by will.
2. All property acquired by the couple by gift, devise, or inheritance is community property, unless they choose to convert it into separate property and hold it individually, as tenants in common, or as joint tenants.
Term
Servitudes
 Definition
o Servitudes: device’s that allow people to create stable long-term arrangements for shared land use, for maintaining the character of the neighborhood, and for financing shared common facilities. There are two types of servitudes, easements and covenants. Run with the land”: Rights and obligations automatically pass to subsequent owners and occupiers whether or not they have been assigned the rights or assumed the obligations. All successor owners & occupiers of land are entitled to enjoy the benefit or are bound by the burden.
Term
Examples of servitudes that run w/the land:
 Definition
easements, profits, restrictive covenant
Term
Easement
 Definition
A non-possessory interest that gives a person the privilege of using the land of another.
Term
Affirmative v. Negative easements:
 Definition
1. An affirmative easement is one which entitles its holder to do a physical act on the land of another.
2. A negative easement is one which enables its holder to prevent the owner of land from making certain uses of that land.
Term
]Easements appurtenant vs. Easements in gross: Burden v. Benefits:
 Definition
• Burden: Obligation created by the servitude
• Benefit: Right created by the servitude → 2 TYPES
Term
Easements in Appurtenant
 Definition
Benefit/Burden that runs with the land. Putains to parcel of land.
Term
Easements in Gross
 Definition
Benefit/Burden does NOT run with the land only affects the property owner’s rights re: the land specifically. Personal. Are assignable if commercial. Needs a dominant property.
4. In gross: An easement whose benefit is not tied to any particular parcel of land. The easement is thus personal to its holder.
Term
Appurtenant:
 Definition
An easement which benefits its holders in the use of a certain piece of land.
a. The land for whose benefit the appurtenant easement is created is called the dominant tenament. The land that is burdened, or used, by the easement is called the servient tenament.

b. Test: For an easement to be appurtenant, its benefit must be intimately tied to a particular piece of land (dominant tenament). It is not enough that the beneficiary of the easement happens to have an interest in a piece of land that is made more valuable by the easement.
Term
Easement vs License
 Definition
An easement is a property right, while a license is a personal right which expires upon death.
Term
Creation of Easements (other than expressly)
 Definition
There are four ways in which an easement may be created other than expressly in a deed: (1) prescription, (2) implication, (3) necessity, and (4) and estoppel (PINE).
Term
Creation of easement by a deed
 Definition
do a survey, A is conveying to be an affirmative easement) list potuon of parcel that is burdened by the servitutude. Not conveyance in fee simple. Permanent property easements
Term
Express Easements
 Definition
Normally an easement must be express and in writing in order to be valid. by a deed or will.
a. The express grant must, in all cases, meet the Statute of Frauds as it applies to interests in land
.” Most modern courts have no abandoned this rule, and permit an easement to be created by a deed in a person who is neither the grantor nor the grantee.
Term
Prescriptive Easement
 Definition
Gaining a possessory estate in the land by adverse possession may create an easement. Prescription easement- is not POSSESSION- but similar to Adverse possession.
Term
Easement by Implication
 Definition
a. Three requirements: (1) land is being divided up so that the owner of the parcel is either selling part and retaining part, or is subdividing the property and selling pieces to different grantees; (2) the use for which the implied easement is claimed existed prior to the severance referred to in (1), and was apparent and continuous prior to the severance; and (3) the easement is at least reasonably necessary to the enjoyment of what is claimed to be the dominant tenament.

An easement will only be implied where the owner of a parcel sells part and retains part, or sells pieces simultaneously to more than one grantee.
the easement is claimed have existed prior to the severance of ownership. As the idea is sometimes put, there must have been a “quasi-easement”,
Term
Easement by Necessity
Common Grantor, Simultaneous Conveyance, Necessity to have easement
 Definition
Two parcels may also be so situated that an easement over one is “strictly necessary” to the enjoyment of the other. If so, the courts are willing to find an “easement by necessity.” Unlike the easement by implication, the easement by necessity does not require that there have been an actual prior use before severance.
Term
Estoppel Easement
 Definition
An easement by estoppel is created where A allows B to use A’s land under circumstances where A should reasonably foresee that B will substantially change position believing that this permission will not be revoked, and B in fact changes position. Estoppel: an easement may be extinguished by virtue of the reasonable reliance and change of position of the owner of the servient tenement, based on assertions or conduct of easement holder. RULE: An easement by strict necessity should benefit the dominant estate for any lawful & reasonable use.
Term
Reservation in estoppel
 Definition
Arises when the owner of a tract of land conveys title but reserves the right to continue to use the tract of land for a specific purpose after the conveyance.
i. Grantor passes title to the land but reserves to himself an easement interest.
ii. Majority view is only reserved for the grantor and not for anyone else.
Term
Covenants:
 Definition
Covenants running with the land typically involve a promise to pay for certain benefits received by the promisor’s land, or a promise by the promisor that he will or will not do certain things with the land. A COVENANT DIFFERS FROM AN EASEMENT B/C IT IS A K LIMITATION ON THE LAND (NOT A GRANT OF NON-POSSESSORY INTEREST.
Term
At common law, there are four elements to Real Covenants (WIPT):
 Definition
1. The covenant must be in writing to satisfy the Statute of Frauds;
2. It must be the intent of the parties for the covenant to run with the land;
3. The covenant must “touch” or “concern” the land; and
4. There must be privity of estate
a. Horizontal privity is between the original parties (promisee), vertical privity is between the promisee and the promisee’s assignee
Term
1. Affirmative Covenant
 Definition
makes the property do something (i.e. paying money, painting)
Term
2. Negative Covenant
 Definition
aka restrictive; intended to say you can’t do something on the land
Term
when covenants can be enforced
 Definition
Covenants may be enforced as an equitable servitude and injunction may be granted where the party takes the land with constructive notice of the covenant in the previous lease or deed..
Term
Covenant (legal device)
 Definition
P wants money damages.
Term
Equitable Servitude (equity device)
 Definition
P wants an injunction, then it must be construed in equity
Term
benefit of covenant
 Definition
• Benefit: Ask – Does the benefit of A’s promise run from B to B1 (W.I.T.V.)?
o Writing – the original promise MUST be in writing.
o Intent – The original parties must have intended that the benefit would run.
o Touch and Concern – The promise affects the parties as landowners.
o Vertical Privity – Some non-hostile nexus b/w B and B1.
o NOTE: HORIZONTAL PRIVITY IS NOT REQUIRED FOR THE BENEFIT TO RUN THIS IS WHY THE BENEFIT SIDE IS EASIER TO RUN THEN THE BURDEN SIDE.)
Term
title insurance
 Definition
• Critical words → title insurance co. insures against loss or damage from title defects.
• Schedule A = meets & bounds description; covers liens & encumbrances, includes lack of access to and from premises; excepting all loss, etc.
• Schedule B = they don’t insure against anything that was in the survey b/c they’re incorporating that buyer is charged with knowledge of what was in survey
Term
• PHASES OF THE TRANSACTION:
 Definition
o I. Broker: mtg. of the minds among parties; lawyer for seller writes K; lawyer for buyer reviews.
o II. Contract: governs things before deed can be conveyed from seller to buyer; down payment; inspection happens sometime before the contract is signed.
o III. Closing: title passes; closing costs; lots of things are closed.
o IV. Post-Closing
Term
Broker stage
 Definition
Term
Contract of Sale stage
 Definition
In the time between the contract and closing periods, inspections, title insurance, and a mortgage is applied for. If any of these things that are undertaken during the contract period, the contract may terminate by itself because of the drafting of the agreement.
promises by the buyer and seller to buy and sell the land, followed by the deed, which passes title from the seller to the buyer
Term
Contract of Sale v. Deed
 Definition
1. Deed conveys after the contract has made all the proper promises
2. Both must be in writing due to the Statute of Frauds and the NY General Obligations Law §5-703, otherwise they will be held to be void.
Term
the lawyer’s professional responsibility for broker
 Definition
Failure to make full disclosure of a conflict of interest subjects an atty. to sanctions
Term
Closing Stage
 Definition
contract of sale, broker’s fee, mortgage commitment letter, title policy)
i. At the closing, two transactions actually occur: transfer of the deed, between the buyer and seller, and assignment of the mortgage, between the buyer and the bank.
ii. The ritual ends with cutting of the checks.
Term
Misrepresentation and concealment at the Contract of Sale stage:
 Definition
a. A seller of property who misrepresents the condition of the property will normally be liable to the buyer for damages. Courts are especially like to find the seller liable for mere nondisclosure where the seller has brought about the defect or condition.
Term
Closing stage
 Definition
contract of sale, broker’s fee, mortgage commitment letter, title

i. At the closing, two transactions actually occur: transfer of the deed, between the buyer and seller, and assignment of the mortgage, between the buyer and the bank.
ii. The ritual ends with cutting of the checks.
Term
misrepresentation
 Definition
Where a condition which has been created by the seller materially impairs the value of the K and is peculiarly within the knowledge of the seller or unlikely to be discovered by a prudent purchaser exercising due care, with respect to the subject transaction, non-disclosure constitutes a basis for rescission as a matter of equity.
Term
]Caveat Emptor
 Definition
requires a buyer to act prudently to assess the fitness and value of his purchase and operated to bar the purchaser who fails to exercise due care from seeking the equitable remedy of recession.
a. Exceptions to CE:
i. There is a confidential relationship between parties; or.
ii. A fiduciary relationship; or
iii. Active concealment on the part of the seller; or
iv. Fraud; or
v. Non-physical defects; or
vi. Partial disclosure
Term
Real Property Conditions Act: Property Condition Disclosure, §§460-467:
 Definition
1. Default rule: seller is under no duty to disclose (caveat emptor) (except in the case of single-family homes); PCDA: applies to existing single-family homes (not condos, new construction, common interest communities)
2. Requires “major” property condition defects (termites, plumbing, electrical, etc.) to be disclosed (not ghosts or homicide); Seller must give a property disclosure sheet to the buyer so they are aware of the defects.
3. Policy: brokers were not giving buyers information about defects to houses; broker, in the contract stage, must give the sheet to the buyer; there is then liability because they have been up front about all information about the house.
Term
Buyers Remedies at the Contract of Sale stage
 Definition
i. Specific performance: because land is unique, buyer need not show special facts to receive an equitable remedy
ii. Damages: a buyer is entitled to damages equal to the difference between the contract price and the market price
iii. Rescission of the contract
Term
Seller’s remedies:
 Definition
i. Specific performance: seller has a right to specific performance by the buyer as a matter of course, the seller will tender the deed and the buyer will be ordered to pay the price
ii. Damages: seller is entitled to damages for the buyer’s failure to perform under the contract. Almost always the seller gets the difference between the contract price and the value of the property at the time of the breach
Term
YOU ACQUIRE TITLE
 Definition
FROM THE SAME DEED OR WILL
Term
Concurrent ownership-
 Definition
is an estate shared by 2 or more people in the same property at the same time.
Term
vested remainders subject to divestment are always followed
 Definition
an executor interest
Term
Estate distinguished from servitutudes and easements
 Definition
Estate distinguished from servitutudes and easements bc neither easments not equitable servitudes is an estate since they can not become POSESSORY
Term
Future interests are non-possessory in the present
 Definition
Possibility of reverter
Right to re-entry
Reversion
Remainder
Executor interest
Term
Fee Simple subject to executor interest-
 Definition
can give a third party a similar interest to right of re-entry or possibility of reverter
Term
Difference between executor interest and remainder.
 Definition
Remainder never cuts off a prior interest but waits for natural termination. An EI generally divests or cuts off a prior interest before that prior interest’s natural termination. Divestment in vested remainder
Term
Remainder
 Definition
Non-possessory estate in another
Grantor must convey a present possessory estate
Vested (look for condition precedent to deny)
Indefeasibly vested remainders
Remainders vested subject to open
Term
Remainder vested subject to complete defeasance
 Definition
A for life,then B for life B’s interest is a vested remainder subject to a complete defeasance through expiration since if b dies before A his remainder will never become possessory
Term
Another way the complete defeasance can fail to become possessory is
 Definition
if its DIVESTED BY AN EXECUTORY INTEREST. Such an interest cuts off the remainder either before or after it becomes possessory and gies it to someone other than the grantor.
Term
Another way the complete defeasance can fail to become possessory
 Definition
if grantor retains the right of entry if the remainderman does not meet a certain condition. Distinquished from contingent remainders that are subject to condition precedent.?????
Term
If condition is incorporated into the clause that gives the gift to the remainderman- it is a CONTINGENT
 Definition
If the clause creates the remainder, and a subsequent clause takes the remainder away the remainder is vested (subject to divestment)
Term
Divestement
 Definition
a cutting short of the remainder
Term
Covenants:
 Definition
Covenants running with the land typically involve a promise to pay for certain benefits received by the promisor’s land, or a promise by the promisor that he will or will not do certain things with the land
Term
• At common law, there are four elements to Real Covenants (WIPT):
 Definition
• The covenant must be in writing to satisfy the Statute of Frauds;
• It must be the intent of the parties for the covenant to run with the land;
• The covenant must “touch” or “concern” the land; and
• There must be privity of estate
o Horizontal privity is between the original parties (promisee), vertical privity is between the promisee and the promisee’s assignee
Term
i. Contract of Sale v. Deed
 Definition
Deed conveys after the contract has made all the proper promises
2. Both must be in writing due to the Statute of Frauds and the NY General Obligations Law §5-703, otherwise they will be held to be void.
Term
ii. At the closing, two transactions actually occur:
 Definition
transfer of the deed, between the buyer and seller, and assignment of the mortgage, between the buyer and the bank.
Term
1. Caveat Emptor:
 Definition
equires a buyer to act prudently to assess the fitness and value of his purchase and operated to bar the purchaser who fails to exercise due care from seeking the equitable remedy of recession.
Term
a. Exceptions to CE:
 Definition
i. There is a confidential relationship between parties; or.
ii. A fiduciary relationship; or
iii. Active concealment on the part of the seller; or
iv. Fraud; or
v. Non-physical defects; or
vi. Partial disclosure
Term
iii. Real Property Conditions Act: Property Condition Disclosure, §§460-467:
 Definition
1. Default rule: seller is under no duty to disclose (caveat emptor) (except in the case of single-family homes); PCDA: applies to existing single-family homes (not condos, new construction, common interest communities)
2. Requires “major” property condition defects (termites, plumbing, electrical, etc.) to be disclosed (not ghosts or homicide); Seller must give a property disclosure sheet to the buyer so they are aware of the defects.
3. Policy: brokers were not giving buyers information about defects to houses; broker, in the contract stage, must give the sheet to the buyer; there is then liability because they have been up front about all information about the house.
Term
• Doctrine of Equitable Conversion:
 Definition
where an executory contract for the sale of real property does not contain a provision allocating the risk of loss and the property is damages by fire or some other casualty not due to the fault or neglect of the vendor, the risk of loss is on the purchaser.
Term
o RULE: Where a K places the risk of loss on the vendor,purchaser may recover the down payment.
 Definition
Term
Types of deeds conveyed to the buyer:
 Definition
i. General Warranty Deed: grantor warrants the title against defects arising before and during the time the grantor was connected with the land.
ii. Special Warranty Deed: grantor warrants the title against defects arising during the grantor’s association with the land but not against defects arising before that time.
iii. Quitclaim Deed: grantor warrants nothing; the grantor merely transfers what title the grantor has, if any.
Term
The Recording System
 Definition
seller signs the deed, the deed is attested (witnessed; notarized), and the title closer takes the deed and mortgage and go to the land records—put the deed first, and the mortgage second—the new owner is on the record as the grantee.
Term
1. Three types of notice that would knock grantee out as bonafide purchaser without notice:
 Definition
a. Actual Notice (purchaser was told)
b. Record Notice (deed was recorded)
c. Inquiry Notice (due diligence on property)
Term
• Prior to the recording acts the common-law rule was
 Definition
• “first in time, first in right.” COMMON LAW RULE: FIRST IN TIME; FIRST IN RIGHT!
Term
• Race Notice Statutes:
 Definition
place a premium on the race to the recorder’s office and protect the bona fide purchaser only if he or she records first.
Term
• Language: every conveyance of real estate shall be void as against any subsequent purchaser in good faith and for a valuable consideration, whose conveyance shall be first duly recorded…
• Example: O → A (does not record); O then → B without notice; B then records.
• B wins because in a race notice jurisdiction the person who records first is protected
 Definition
• Language: every conveyance of real estate shall be void as against any subsequent purchaser in good faith and for a valuable consideration, whose conveyance shall be first duly recorded…
• Example: O → A (does not record); O then → B without notice; B then records.
• B wins because in a race notice jurisdiction the person who records first is protected
Term
An instrument executed by an owner which is recorded before acquisition or after relinquishment of the “root title” is outside the chain of title. Consequently, the title searcher is not liable for its failure to discover such an instrument, and the title insurer is not liable since such an instrument falls within the exclusion of the insurance policy of “easements, liens or encumbrances not shown by the public records.”
 Definition
o RULE: The general rule in NY is that the purchaser takes with notice from the record only of encumbrances in his direct chain of title. In the absence of actual notice before or at the time of his purchase or of other exceptional circumstances, an owner of land is only bound by restrictions if they appear in some deed of record in the conveyance to himself or direct predecessor in title.
Term
Reciprocal Negative Easements:
 Definition
“covenants” are restrictions placed on the land by an original owner to all of the future grantees of his land, the grantees are said to have constructive notice of the restriction when their land has been granted by a common owner and the neighboring lands have a restriction placed upon them, even it is not stated in their deed.
Term
a. The most significant land use power that the state legislature has delegated to local governments
 Definition
is the authority to adopt zoning laws or ordinances – they divide land into zones and prescribe the land uses and the intensity of development allowed within each district.
Term
RULE: Zoning is constitutional if it serves a legitimate public purpose- on its face.
 Definition
c. Zoning is created to set land use standards that protect neighbors from nuisance – like use of nearby land.
Term
Article V: “No person shall be…deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.” → laws should be free of arbitrary regulations.
 Definition
i. Due process clause – government regulations have to be adopted in order to achieve a legitimate governmental purpose
Term
Article XIV: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law: nor deny any person within its jurisdiction the equal protection of the laws.”
 Definition
ii. Incorporates all rights under the 5th and 1st amendments to the States (rather than just on a federal level).
Term
d. Three forms of per se “taking”:
 Definition
i. Physical occupation and total value taking (Lucas);
ii. Limitation on ability of property owners to develop their property (Penn Central) landmark preservations; and
iii. Regulations requiring land owners to use their land depriving them of their sovereignty intermotal transportation (Dolan)
Term
o RULE: Conditional grants of public greenway does not relate to a legitimate governmental interest; limits the ability of cities & other government agencies to use zoning & land-use regulations to compel property owners to make unrelated public improvements. DOLAN
 Definition
iii. Regulations requiring land owners to use their land depriving them of their sovereignty intermotal transportation (Dolan)
Term
o RULE: Total takings requires compensation; a regulation that deprives an owner of all economically beneficial uses of land constitutes a taking unless the proscribed use interests were not part of the title to begin with. LUCUS
 Definition
i. Physical occupation and total value taking (Lucas
Term
ii. Limitation on ability of property owners to develop their property (Penn Central) landmark preservations;
 Definition
o PENN-CENTRAL FACTOR- 3 FACTOR TEST – 90% of takings cases fit into test – balancing factors; not one determines the outcome, here, balance goes toward the government.
o Court imposes heavy burdens of proof on people who attack legislative acts; here, they were reviewing a legislative act; presume constitutionality.
• Economic impact of regulation on claimant.
• Extent to which the regulation has interfered with distinct investment-backed expectations.
• Character of governmental action.
Term
Restrictive Covenants
 Definition
Restrictive covenants are deed restrictions that apply to a group of homes or lots in a specific development or 'subdivision.
Term
Easement by prior use
 Definition
Easements by prior use are based on the idea that land owners can intend to create an easement, but forget to include it in the deed.
There are five elements to establish an easement by prior use:
Common ownership of both properties at one time
Followed by a severance
Use occurs before the severance and afterward
Notice
Not simply visibility, but apparent or discoverable by reasonable inspection (e.g. the hidden existence of a sewer line that a plumber could identify may be notice enough)
Necessary and beneficial
Reasonably necessary
Not the "strict necessity" required by an easement by necessity
Term
Easement by estoppel
 Definition
Easements by estoppel generally look to any promises not made in writing, any money spent by the benefiting party in reliance on the representations of the burdened party. If the court finds that the buyer acted in good faith and relied on the seller's promises, the court will create an easement by estoppel.
Term
Easements distinguished from licenses
 Definition
Licenses to use property in a non-possessory manner are very similar to easements and are, under certain circumstances, transformed into easements by the court, but some general differences do exist:
A license is often revocable and is typically limited in duration
A license is often uninsurable
A license is often not recorded
Term
An easement
 Definition
is a certain right to use the real property of another without possessing it
Term
A Deed
 Definition
is any legal instrument in writing which passes, or affirms or confirms something which passes, an interest, right, or property and that is signed, attested, delivered, and in some jurisdictions sealed.
Term
Bailment
 Definition
Bailment is distinguished from a contract of sale or a gift of property, as it only involves the transfer of possession and not its ownership.
Term
Alienation,
 Definition
the capacity for a piece of property or a property right to be sold or otherwise transferred from one party to another.
Term
is a legal right to property ownership that does not include the right to present possession or enjoyment of the property.
 Definition
is a legal right to property ownership that does not include the right to present possession or enjoyment of the property.
Term
leasehold estate
 Definition
is an ownership of a temporary right to land or property in which a lessee or a tenant holds rights of real property by some form of title from a lessor or landlord.
Term
A springing executory interest vs shifting interest
 Definition
cuts short the grantor's own interest vs cuts short someone other than the grantor
Term
A springing executory interest vs shifting interest
 Definition
cuts short the grantor's own interest vs cuts short someone other than the grantor
Term
assignment/sublease
 Definition
An assignment occurs when a tenant transfers his entire interest in an existing lease to a third party. A sublease involves a new lease between the tenant and a third party for less than the entire interest. If a landlord or tenant assigns a lease to a third party, the third party is an assignee. If a tenant sublets to a third party, the third party is a sublessee.
Term
Privity of estate
 Definition

  1. Privity of estate means that the parties are bound to covenants in the original lease that run with the land.

  2. If the landlord assigns the lease, the assignee and tenant are in privity of estate.

  3. If the tenant assigns the lease, the assignee and landlord are in privity of estate. The privity of estate between the landlord and tenant dissolves.

  4. For a sublease, the tenant and landlord are in privity of estate.
Term

Privity of contract

 

  1.  

 Definition


 

  1. Privity of contract means that the parties are bound to each other by the terms of the contract.

  2. If the landlord assigns the lease, the landlord and tenant remain in privity of contract. The landlord and assignee are also in privity of contract, but the assignee and tenant are not in privity of contract.

  3. If the tenant assigns the lease, the landlord and tenant remain in privity of contract. The tenant and assignee also are in privity of contract, but there is no privity of contract between the landlord and the assignee.

  4. For a sublease, the tenant and landlord remain in privity of contract, and the sublessee and tenant are in privity of contract.
Term
An equitable servitude 
 Definition
 similar to a covenant in that it is a promise concerning the land that binds the original parties and their successors. The difference is in the basis for relief: a party enforcing an equitable servitude will seek an injunction rather than damages.
Term
License
 Definition
not considered an interest in land but a privilege. An easement is an interest in land, must be in writing and generally irrevocable
Term
difference between equitable servitude and a real covenant
 Definition
no privity required for ES
Term
how do easements differ from real covenants and equitable servitude
 Definition
easements deal with right to use property; covenenats and EQ restrict
Term
elements to establish real covenenat benefit
 Definition
promise in writing
touch and concern the benefited land
intent that the promise will benefit successors
partial vertical privity
Notice of covenent
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