"To A" or "To A and his Heirs"

Devisable, Descendable, Alienable

Presumption of FEE SIMPLE ABSOLUTE is the modern trend unless indicated otherwise

"To A until" or "To A as long as" or "To A during"

Clear durational language

Forfeiture is automatic upon violation

Automatically reverts to grantor upon condition

"To A, but if X occurs..."- right to enter and retake

Not an automatic revertor, grantor can elect to reenter.  

Power of Reentry and Termination.  

"To A, but if X occurs, then to B."

Automatic forfeiture in favor of someone other than grantor.  The future interest is a

Shifting Executory Interest.  

"To A For life"

Life tenant

Grantor retains reverter-guaranteed.

WASTE

PURGE- waste allowed when 

Prior USE

Reasonable Repairs

Granted right to

Exploitation- land suitable to exploit

Affirmative- natural resource destruction, unless permitted, or necessary for maintenance, or if destruction is only suitable use of land

Permissive- breach of duty to maintain, upkeep, pay ordinary taxes

Ameliorative- cannot benefit property without consent from future interest holders

Possibility of Reverter- only for FS determinable, automatic reverter

Right of Entry, Power of Termination- subject to condition subsequent, must elect to use

Reversion- automatically reverts to grantor, when a grantor transfers less than whole interest, i.e. life estate, term of years

Future Interests in Transferees

Remainders (Vested and Contingent)

Vested Remainder-an ascertained person and not subject to any condition subsequent

Contingent Remainder- an unascertained person or subject to a condition precedent

Executory Interest- not a remainder, occurs when it cuts short or divests a prior transferee

Indefeasibly-no conditions

Subject to Complete Divestment-when a condition subsequent can take away

Subject to Open-a class of potential transferees, class closes whenever any member of class can take possession.  

Shifting- cuts short someone other than grantor, follows a defeasible fee

Springing-cuts short grantor or his heirs, when condition ment

Rule Against Perpetuities

A way to void future interests.  

Future interest is void if it could possibly vest more than 21 years after the death of a measuring life.  

Does not apply to any future interest in grantor (reverter, reversion, reentry, termination).  

If condition is that a child reach an age older than 21- invalid.  

Joint Tenancy

Tenancy in Common

Tenancy by the Entirety

Joint Tenancy

T-TIP

Needs Four Unities

1.  Time

2.  Title

3.  Identical Interest

4.  Possess Whole

**Grantor must clearly state the right of survivorship.  

Severing a Joint Tenancy

SPAM

Sale (even entering a K to sell, unexecuted)

Partition

Mortgage (only in title theory states, lien theory states will not sever)

If more than 2, if one severs, the other 2 maintain their JT, new guy gets TIC.  

Right of Possession of Whole

No rent from exclusive possessor, unless from 3rd parties (unless oustered)

No Adverse Possession Claims between Co-Ts

Costs of Property, including rzbl and nec repairs

Liable for Waste

Landlord's Duties

Right of Entry for breach of any of Lease's covenants

Reversionary interest

Deliver Possession

Quiet Enjoyment

Duty to Warn of Hidden Defects

Maintain Common Areas

Reasonable Care

Implied Warranty of Habitability

(Breach- T can move out, repair and deduct from rent, Reduce rent (escrow action), Remain in Possession.)

Tenancy for Years- any fixed period

Periodic Tenancy-automatic renewal for each period of rent paid, notice required to end

Tenancy at Will-by express agreement only, terminated at will at any time

Tenancy at Sufferance- when lawfully held over

Comply with provisions of the Lease

Pay rent as agreed (timing can be waived or excused by course of dealing)

Duty to Maintain

Make ordinary repairs

Give Notice

In absence of lease provision, T can always assign or sublet

Assign- transfer of T's whole interest

Sublet- Transfer in part

Assign- T1 remains in privity of K-secondarily liable to each other

T2- obtains privity of estate- gets all promises in original lease

Sublet- T2 gets neither privity of K nor privity of estate.  T1 must go after T2 for any liability.  LL can only go after T1.  

Adverse Possession

COAH

Continuous use for statutory period

Open and Notorious-use as regular owner

Actual Use- for period

Hostile-without permission

Tacking- adding yrs of one APer to another if privity- blood, K, will, deed

Cannot AP against incapacity

Affirmative Easements

Negative Easements

Real Covenants

Equitable Servitudes

General Scheme Servitudes

Negative Easements

LASS(S)

For Light, Air, Support, Streamwater (maybe Scenic view)

Only in Writing

Appurtenant-benefits physical use or enjoyment of property

In Gross- only a servient tenement, only transferable if for commercial purposes

Creation of an Affirmative Easement

PING

Prescription-adverse possession

Implication-previous use was apparent and reasonably necessary (expected to continue)

Necessity-landlocked property

Grant- express grant, if more than one year (SOF) must be in writing and satisfy deed requirements

**Because it is an interest in property!

Termination of an Easement

END CRAMP

Estoppel- servient owner rzbly relies on dominant's assurances, does something so D estopped

Necessity-necessity ends=ends unless express grant

Destruction-of servient estate

Condemnation- eminent domain, etc.

Release-written release by easement holder

Abandonment-demonstrated by physical action intent to never use again (fence)

Merger-of dominant and servient estates

Prescription- ends by servient's AP of easement

Profits

PING

END CRAMP

Right to enter land and extract natural resources from or across land

Same rules as easements

Real Covenants

A Contractual interest

A promise to do or not do something on the land- similar to an easement, except it is a contractual right and not a property interest

Can be Affirmative or Negative

Equitable Servitude- injunction

Covenant- $$$

For the Burden to Run

WITHvN

Writing

Intent

Touch and Concern the Land (must affect interest as landowners and not just community members- association fees, non competes do T & C land)

Horizontal Privity

Vertical Privity

Notice- of promise when took

Horizontal Privity

Vertical Privity

Horizontal- relationship between parties who created covenant- must share some interest- LL/T grantor/ grantee, mortgagor/ mortgagee

Vertical-any non-hostile transfer of land, might require that grantor not retain any interest

Benefit to RUN

WITV

Writing (original covenant)

Intent

Touch and Concern Land

Vertical Privity

Equitable Servitude

WITN(ES)

Writing

Intent

Touch and Concern

Notice

Implied ES

(General Scheme)

AIR

1.  Subdivider had a general scheme of development that included this lot

2.  Lotholder had notice of the promise contained in the deeds.  

Notice- AIR- 

Actual- factual knowledge of the scheme

Inquiry-neighborhood conforms to scheme, reasonable inspection would reveal scheme

Record- in deeds, some courts allow current deed not to show ES if old ones did.  

1. In writing

2. Description

3. Consideration

*SoF applies except in cases of partial performance

MUST HAVE 2/3:

Possession,

Substantial Improvements,

Payment of Purchase Price

Doctrine of Equitable Conversion- that which ought to be done

Once K is signed, B owns the land (subject to payment), but once SIGNED- transfer of risk of loss

1. Marketable Title-(at closing)good record title and:

     NO- threats of lawsuits

   servitudes or mortgages (unless waived)

   zoning violations

2. No false statements of material fact, must disclose hidden material defects

*If sold as is, seller still not excused from liability for fraud, failure to disclose.  

The Closing

LEAD

Lawfully Executed And Delivered

1. Deed in writing signed by grantor, no consideration required with unambiguous description of the land conveyed.  

2. Delivery-present intent to be immediately bound by the transfer of deed- physical transfer irrelevant. (B can still expressly reject).  

*If delivered with oral condition- oral condition fails (parol evidence).  

**Can deliver into escrow with conditions before transfer- once conditions met, deed transfers. 

General Warranty Deed

Covenants

Warrants against all defects of title- going back forever.

Seisin-promise of ownership

Right to convey- power to make transfer

Against encumbrances- no servitudes/ mortgages

In future covenants:

Quiet Enjoyment

Warranty-defend grantee if claims brought

Further Assurances-do all is necessary to perfect

Recording System

AIR

Always must record properly in the chain of title.  

Protects against other BFPs

1. For value

2. W/o notice that someone else got there first

Actual

Inquiry

Record

Notice System

v

Race-Notice System

Notice-If subsequent BFP takes without notice, he wins.  A needs to record before any other BFP takes (to give notice).

Race Notice- BFP who records first, or earlier conveyance if no record.  

Strict liability only applies for cave-ins on unimproved land or if P can prove that improvements didn't impact cave-in.   

If improved, negligence required.  

Water belongs to those who own land bordering water, and right attaches to all contiguous tracts owned by same person (for use in connection with parcel). Change in flow can be enjoined. 

Prior Appropriation Doctrine-priority determined by benefits of use, rights acquired by actual use, can be lost by abandonment.  

Groundwater-surface owner entitled to make reasonable use, export allowed if doesn't harm others.  

Surface waters-can alter, make reasonable use (on or off property) for any purpose, and expel from land

Trespass (Ejectment), Private Nuisance (Abatement), Public Nuisance

Rights in above and below ground to reasonable levels.  To exclude excessive noise.  

Support.  

Private property cannot be taken for public use without just compensation.  

Look at investment backed expectations, extent of deprivation, value of economic use remaining.  

enact laws to reasonably control land's use for health, safety, welfare, morals of community.

Nonconforming use- cannot deny current use by zoning reg without Due Process

Variances- departure from literal restrictions of zoning scheme by administrative action, show:

1.  Undue hardship, 2. Minimal effect on community, property values

Exactions- conditions on Zoning Approvals

Part of land dedicated to benefit public

Unconstitutional (taking) to demand private land exchange for zoning approval, unless govt proves:

1.  Essential nexus between exaction and reason the exaction is being required

2. Rough proportionality between burden on the developer and benefits to the public.  

Land is collateral on a debt 

Evidenced by a writing to satisfy SOF.  

Debtor/Mortgagor has legal title

Bank/Mortgagee- has lien that can be transferred.

If note is endorsed and delivered, transferee can become a HOLDER IN DUE COURSE

which means they take free of any personal defenses that could have been raised by debtor against original creditor.  

(Still subject to real defenses)

Personal Defenses (not available against Holder in Due Course)

Lack of Consideration, Fraud in the Inducement, Unconscionability, Waiver, Estoppel

Real Defenses (MAD FIFI)

Material Alteration, Duress, Fraud in Fact, Illegality, Incapacity, Infancy, Insolvency

Right of Redemption- up to time of foreclosure sale, any payments owed unless an Acceleration Clause

Statutory redemption- after foreclosure sale, but before time period ends, can pay sale price

Holder in Due Course

NEDGV

Negotiable- payable to named mortgagee

Endorsed by named mortgagee

Delivered to transferee

taken in Good Faith w/o notice of illegality

Value pd for note

takes free of any personal defenses debtor has against mortgagee

Assumed by new owner- new owner primarily liable while O is secondarily

Taken Subject to Mortgage- O remains primarily liable, new owner assumes no personal liability

1.  By proper judicial action only

2. Commercially reasonable sale- usually directed by statute

3. Deficiency Action against Debtor 

Necessary parties- all Jr interests and debtor (if they want deficiency action)

$ taken off the top of sale price-attorney's fees, foreclosure expenses, accrued interest on mortgage

If foreclosed by Jr Interest- Buyer at sale takes land subject to Sr. Mortgages (B not personally liable, but if not paid- foreclosure can occur).  

Superpriority

Unless agree to subordinate