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BARBRI NOTES

CONSTITUTIONAL LAW

MODULE 1: INTRODUCTION
- Con law questions can be broken up into 2 issues:
1. Does the government have the power to act?
a. Federal gov’t can act only when it has express authority but state local
gov’t can do anything (unless limited by Constitution)
i. No general authority of Congress to act either  must point to
provision in Const
ii. Federal court can hear a case if there’s both statutory &
constitutional authority
1. State & local governments have the police power 
can do anything EXCEPT for what’s forbidden by
Constitution
2. Congress & Federal gov’t LACK the police power
2. Has the government violated a limit on its authority?
a. All gov’ts at all levels are constrained by the Constitution 
constrains take many forms
i. Rights in Cons are limits on gov’t (ex: First Amendment)
ii. Government at any level cannot take away life, liberty, or
property; can’t deny person of equal protection

MODULE 2: POWERS OF THE FEDERAL GOVERNMENT


- Powers of judicial branch:
A. Created in Article III of Constitution  creates Supreme Court & gives Congress
authority to create lower courts
 Congress created Federal district courts, federal COA, etc.
 Federal court can hear a case only if constitutional authority (must be a
matter that Art III authorizes courts to hear) and statutory authority
(federal law that authorizes court to hear case)
 State courts can hear anything: federal claims or state claims
(unless statute creating exclusive federal Jx)
 Requirement for cases in controversies  Article III, sec. 2 defines
judicial power as involving cases & controversies  giving rise to a series
of limits to a judicial power
- Justiciability doctrines:
A. Standing: question whether π is the proper party to bring into the court for
adjudication
 For π to have standing, req’s must be met:
1. Injury - π must allege & prove that he has been or imminently will be
injured
a. π may present only personally suffered injuries
i. Clapper v. Amnesty Internation (2013): Congress amended
Act to allow national security agency to intercept
communications btwn US & those in foreign countries 
challenge brought by group of lawyers & business people who
regularly communicate w/ those in foreign countries & are
fearful that their communications would be interception.
SCOTUS said π’s lacked standing b/c can’t show their
communications were or are likely to interceptions – can’t
show personally suffered injury = don’t have standing
ii. P’s who’s seeking injunctive or declaratory relief must show a
likelihood of future harm
2. Causation/Redressability - π must allege and prove that the ∆ caused
the injury so that a favorable federal court decision is likely to remedy
the injury/harm suffered
a. Best way to be sure of redressability is to be sure that ∆ is the
cause of the injury
3. No third-party standing is allowed – π cannot present claims of
third-parties who are not before the court
a. Exceptions: π who meets other requirements can present third
party standing
i. [close relationship/identify of interest] Craig v. Boren: OK
had law that said women could buy alcohol beer at 18 y/o but
men couldn’t buy it until 21. π’s were bartenders who were
21+ but were suing on behalf of the customers  court said
we can trust the π’s to adequately represent the intentions of
those under 21.
ii. If injured party is unlikely to assert his or her own rights
iii. Organizational/associational standing if:
1. Individual members must have standing to sue
2. Interest in the lawsuit must relate to what org is about
3. Neither the claim nor the relief requested must require
the individuals participation
4. No generalized grievances are allowed
a. π must not be suing solely as a citizen or a taxpayer
i. Exception: Taxpayers have standing to challenge gov’t
expenditures pursuant to a statute as violating the
establishment clause
ii. Flast: Fed gov’t giving direct financial aid to religious schools
through statute; taxpayer said that this violates first
amendment. SCOTUS said taxpayer had standing. Said
establishment clause was meant to be limit on government
spending. But SCOTUS has continuly narrowed taxpayer
standing to challenge establishment clause violations
1. Valley Forge Christian College: fed gov’t gave 1/5m in
property to a religious college. Taxpayers brought suit
but SCOTUS said no standing b/c taxpayers do not have
standing to challenge gov’t grants of property
B. Ripeness: may the federal court grant pre-enforcement review of a statute or
regulation?
 When a federal court is asking to issue declaratory judgment saying a
statute is unconstitutional, ripeness arises
 Is there a quest for a declaratory judgment?
 Look at two criteria:
 Hardship the π will suffer without pre-enforcement review
 Fitness of the issues and the record for judicial review
o Is there any reason why the federal court should wait for an
actual violation of the statute and then a prosecution?
C. Mootness: if events after the filing of the lawsuit end the π’s injury, the case
should be dismissed as moot; π must present a live controversy, an ongoing injury
during all the stages of the litigation
D. Political Question: refers to allegations of constitutional violations that federal
courts will not adjudicate
 There are some claims that are best left for the other branches to solve
 Cases dismissed as nonjusticiable PQ’s:
 Cases under Republican Form of Gov’t Clause (Guarantee
Clause) - republican form of gov’t clause refers to provision in Art
IV, §4 of the Constitution that says the US shall guarantee to each
state a republican form of gov’t
o Framers of Constitution thought republican form was one
where people would elect representatives & reps would
make laws. Since Luther v. Boren, Supreme Court always
has said that cases under this clause are nonjusticiable
political questions
 Ex: imagine state adopts a new law through
initiative process but challenges are brought that it
violates this clause  “this is direct democracy” 
case would be dismissed b/c cases under this clause
ALWAYS have been dismissed under the SCOTUS
 Challenges to the President’s conduct of foreign policy -
Goldwater v. Carter: Jimmy Carter rescinded US Treaty w/ Taiwan
as recognizing Taiwan w/ China. Goldwater challenged this,
arguing Senate has to prove recension of a treat. SCOTUS said
since this is a challenge to president’s conduct of a foreign policy,
it’s dismissed as a political question
 Challenges to the impeachment and removal process – Nixon v.
United States: Nixon (federal district court judge of Mississippi)
who was impeached by House of Reps. After Nixon was
impeached by House of Reps, case went to Senate for trial &
Senate formed committee to review evidence against Nixon. Nixon
objected saying the entire senate should sit and try him. Court said
challenge to the impeachment and removal process are
nonjusticiable political questions
 Challenges to partisan gerrymandering: where the political
party that controls the legislature does election districts to
maximize seats of that state.

- Since state law is independent from federal law, there can be no supreme court review
- Lower federal court review
A. Federal courts and state courts cannot hear suits against state governments
 Principle of sovereign immunity – the Eleventh Amendment bars suits
against state governments in federal courts – it doesn’t matter if π is a
citizen of this state or that state  a state government CANNOT be named
a ∆ in a federal suit
 Sovereign immunity prevents suits against state governments in
state courts or federal agencies (Alden v. Maine)
o Probation officers claimed they were owed $ from the state
under Fair Labor Standards Act – fed. Ct dismissed on 11th
Amendment but SCOTUS said state gov has sovereign
immunity
 Exceptions to sovereign immunity (state gov can be named as ∆)
o Waiver: state may waive SI and consent to be sued but
waiver must be explicit (no implied waiver of SI)
o May be sued pursuant to federal statutes adopted by
Congress in § 5 of the 14th Amendment but Congress
cannot override SI any other powers
o Fed gov may sue state government – SI no bar to fed gov
suing state gov
o State gov cannot assert SI as a defense in bankruptcy
proceedings.
 State officers may be sued – can be sued for injunctive relief
- Federal legislative power – Art I of Constitution defines power of Congress
A. Congress may act only if there’s expressed/implied authority – state and local
government possess the police power (their power to do anything except what’s
prohibited by the Constitution)
 Congress lacks the police power
B. Necessary & Proper Clause: Found in Article I, § 8 – Congress can take all acts
that are necessary & proper to carry out its authority
 McCulloch v. Maryland: Congress may choose any means not prohibited
by the Constitution to carry out its lawful authority
C. Taxing, Spending, & Commerce Clause Powers – Article I, § 8
 Tax & Spend: Congress may tax and spend for the general welfare – may
create any tax raise revenue and any spending program to expend it that
Congress believes will expend the general welfare
 NFIB: ACA (individual mandate) said that every American had to
purchase health insurance of pay a tax. SCOTUS (5-4) – the
individual mandate was an exercise of the taxing power; Congress
has broad power to tax for the general welfare
 Commerce Clause: Congress has power to regulate commerce
 1937-1995 broadly defined the scope of the commerce clause b/c
not one cause was ruled unconstitutional
o United States v. Lopez (1995) involved fed criminal state
(Gun Free School Zone Act) – SCOTUS declared this law
unconstitutional & exceed the commerce power b/c guns
near schools have too attenuated relationships to allow
Congress to regulate. Congress can act under commerce
clause:
 Congress can regulate the channels of interstate
commerce
 Places where commerce occurs (highways,
waterways, internet)
 Congress can regulate the instrumentalities of
interstate commerce and persons/things in interstate
commerce
 Instrumentalities: things that facilitate
commerce (props, planes, internet)
 Persons/things: – commerce refers to all
forms of intercourse (electricity, radio
waves, cattle, people  if they go against
state lines) [Gibbons]
 Congress may regulate activities that have a
substantial effect on interstate commerce
 Wickard v. Filburn: Congress adopted a law
limiting the amount of wheat a farmer can
grow for his own consumption. Farmer said
this exceeds the scope of the Constitution.
Congress looked at all the wheat of all the
farmers similarly situated (aggregate), there
was a substantial economic effect
 Gonzales v. Raich: Congress
constitutionally can criminally prohibit the
cultivation and possession of marijuana for
medicinal and personal use. Marijuana (like
wheat) is sold in interstate commerce.
Producing a crop that’s sold in interstate
commerce is economic activity.
o When it comes to regulating
noneconomic activity, substantial
effect cannot be based on cumulative
impact (United States v. Morrison)
 Congress can regulate economic activity but cannot
regulate inactivity (5 justices said this)
 NFIB
 10th Amendment: all powers not granted to the United States nor
prohibited to the States are reserved to the States and the people
respectively.
 Congress cannot compel state legislative or regulatory activity –
for Congress to do so violates the 10th Amendment
o New York v. United States: SCOTUS declared law
unconstitutional
o Printz v. United States: Congress was commandeering the
States and this violates the 10th Amendment
 CONGRESS CANNOT COMEPL STATE
REGULATORY ACTIVITY
 Congress can try to induce states to act with grants so long as
they’re clearly stated, related to the purpose of the program, and so
long as they’re not unduly coercive.
o South Dakota v. Dole: Congress was seeking to induce the
state government to act using grants.
o NFIB
 Congress may prohibit harmful commercial activity by state
government
o Reno v. Conditt: involved federal drivers privacy protection
act – State dept of motor vehicles cannot release personal
information on individuals – SCOTUS upheld law.
Congress here was not imposing burden on states; Congress
was prohibiting activity – the law was constitional b/c
Congress was prohibiting harmful commercial activity by
the states
 § 5 of the 14 Amendment – authorizes Congress to adopt laws to enforce
th

the 14th Amendment  pursuant to this section, Congress cannot make


new rights or expand scope of rights; they can act to prevent or remedy
violation of rights already recognized by the Courts. Such laws must be
narrowly tailored (proportionate and congruent).
- Federal executive power: Art II of the Constitution defines the powers of the President
(executive branch)
A. Foreign Policy:
 Treaties: treaty is an agreement btwn US & a foreign country that’s
negotiated btwn President & affect when ratified by Senate
 A. State laws that conflict w/ treaties are invalid
o Ex: imagine US & Canada enter treaty that prohibits
hunting of bald eagles but Alaska has law that allows
hunting. Obviously Alaska law will be struck down
 B. If there is a conflict btwn treaty & federal statute, the one
adopted last in time controls.
o Articulated by SCOTUS in 19th Century
 C. Treaties are unconstitutional if they violate the Constitution.
Constitution is Supreme Law of law & nothing, including treaty,
can violate it.
Executive agreements: agreement w/ US & foreign country & effected
when signed by President & leader of foreign nation. No senate approval
is required  if doc is titled “executive agreement” no senate approval
required
 May be used for any purpose – anything that can be done by treaty
can be done by executive agreement
 Prevail over conflicting state laws but never over conflicting
federal laws or Constitution.
 President has broad powers as Commander-In-Chief to use American
troops in foreign countries
 Never has SCOTUS declared unconstitutional President’s use of
troops in foreign countries; President has broad authority to use
these troops
B. Domestic Affairs
 Appointment & Removal Power:
 President appoints ambassadors, federal judges, & officers of the
US. Senate must approve nomination for person to take office but
President has sole power to appoint
 Congress may vest the appointment of inferior officers in the
President, the heads of dept’s, or lower federal courts
o President’s alone get to appoint those that are deemed
“officers” of US; but if it’s inferior officers, Congress has
choices who to give the power to appoint
o Inferior officer: one who can be fired by an officer of the
US
 Ex: Secretary of State (officer) can fire Under
Secretary of State (inferior officer)
 Congress cannot give the appointment power to itself or to its
officers
o Congress would be giving the executive power to Congress
& its officers
 President may not make recess appointments for intrasession
recesses that are less than 10 days
o NLRB v. Cannon: Constitution gives President authority to
make recess appointments – these recess appointments are
unconstitutional  intrasession recession (btwn December
holidays)
 Removal Power:
 Unless limited by federal statute, President may remove any
executive branch official  President can fire any executive
branch official
 Congress by statute may limit removal if both requirements are
met:
o a. Must be an office where independence in the President is
desirable
 Congress can limit removal of Special Prosecutor
 person investigating persons wrong doing
obviously has to be independent from President
 Can’t limit removal of President’s cabinet
o B. Statute must not prohibit all removal; can limit removal
for where there is good cause.
 President has absolute immunity to civil suits for money damages
for anything done while in office
o Nixon v. Fitzgerald
 Presidents do not have immunity for acts that occurred prior to
taking office
o Clinton v. Jones
 Executive privilege protects Presidential papers & conversation, but such
privilege must yield when there’s overriding need for such information
 Executive privilege: authority for President to keep secret
information & conversation
 U.S. v. Nixon

MODULE 3: INTERGOVERNMENTAL INTERACTIONS

- Preemption:
A. Art. VI contains the Supremacy Clause which says the Constitution is the
Supreme Law of the Land; if conflict fed law v. state law  state/local law is
deemed preempted
B. Can be found in any one of 3 ways:
 Express preemption: if fed statute explicitly says that fed law is exclusive
in a field, then state/local laws are deemed preempted
 Anytime Congress has authority to act, Congress in a statute can
say fed law is exclusive & state/local laws are preempted
 Implied preemption: even if fed statute is silent, implied preemption can
be found by:
 a. If fed law & state law are mutually exclusive, state law is
deemed preempted (conflicts preemption)
o If not possible to simultaneously comply w/ both, state law
is deemed preemption
o States can set stricter environmental and safety standards
than fed gov & fed gov has to follow this. Not deemed
conflict when state sets stricter standards  states can
provide more rights under their rights
 b. if state or local law impedes the achievement of fed objective,
state/local law is deemed preempted (objects preemption)
 c. If Congress evidences a clear intent to preempt state/local laws,
state/local laws are deemed preempted (field preemption)
 States cannot tax or regulate federal gov activity *
 McCulloch v. Maryland: SCOTUS declared unconstitutional fed
tax on Bank of US  power of tax is power to destroy; if states
could tax fed gov might tax it out of existence
o Unconstitutional to pay state tax out of federal treasury
 States cannot regulate fed gov – it would be placing substantial
burden on federal activity
- Dormant Commerce Clause & Privilege & Immunities Clause in Article IV:
A. Dormant Commerce Clause: principal that state & local laws are unconstitutional
if they place an undue burden on interstate commerce
 No provision in Constitution that says this  SCOTUS has inferred it in
grant of power to Congress to regulate commerce in states
 If Congress has not acted, commerce power lies dormant;
nonetheless, state law is found unconstitutional if it places undue
burden on interstate commerce
 Two distinct meanings to commerce clause:
 Authority for Congress to act
 Limit on what state/local gov’s can do (DCC**)
 How to know which to apply? Always focus on WHO IS THE
ACTOR in the Q …
 If Congress is doing something, does it fit within Congress’s
power?  commerce clause
 Or is it a challenge of what a state/local gov has done?  dormant
Commerce Clause
B. Privileges & Immunities Clause of Article IV: no state may deprive citizens of
other states of privileges & immunities it accords its own citizens
 Has Antidiscrimination provision: limits ability of state/local gov
to discriminate against out-of-staters with regard to privileges and
immunities
 Does state/local law discriminate against out-of-staters, or does it
treat in-staters and out-of-staters alike?
o Always start by asking this question
 State govs try to help citizens of their own state at the expense of
citizens of other states  adopt laws that discriminate
 Phil v. NJ: NJ adopted law that no out of state garbage can be
buried in NJ landfills – obviously discriminated against out-of-
staters; SCOTUS found it violated SCC
 Whenever you see Q about DCC or P&I clause, always focus on
question ^^
 If state or local gov does not discriminate:
 P&I Clause of Article IV does not apply – if not discriminatory
against out-of-staters
 If state/local law puts burden on interstate commerce, it violates DCC
if the burdens on interstate commerce outweigh the benefits in the law
 Even if law is not discriminatory but puts burden, it violates DCC
 Weigh burdens of interstate commerce v. benefits of the law
o Ex: IL adopted a law that all trucks have curved mudflaps
but other states allowed straight mudcaps; SCOTUS
declared law unconstitutional – put substantial burden on
interstate commerce
 Would have to avoid IL or stop at border; no benefit
of different mud flaps.
 If it discriminates against out-of-staters:
 If law puts burden on interstate commerce, it violates DCC unless
it’s necessary to achieve a very important gov purpose
o SCOTUS said there’s a strong presumption against state
laws that discriminate against out-of-staters & put burden
on interstate commerce; can only be upheld if show that
very important interest to be served
 State will have to show law is necessary to achieve
objective & no less discriminatory alternative can
achieve this goal
o Maine v. Taylor: Maine adopted law that prohibited
importing out-of-state baitfish; state concerned that fish
might carry parasites that might kill fish in Maine; while
Maine law was discriminatory, it was constitution. Maine
had interest to protecting their fish & no alternative to
achieve this goal.
 Exception: law that would otherwise violate DCC is
upheld
 Congressional approval: if Congress has
approved the state law, it is then permissible
even if it would otherwise violate the DCC
o Once Congress has acted, commerce
power is no longer dormant; so if
Congress has approved the action, it
is then permissible under DCC.
 Market-Participant Exception: state/local
gov may favor its own citizens in receiving
benefits from gov programs when dealing w/
gov owned businesses
o UC can charge less in tuition to in-
state than out-of-state residents;
doesn’t violate DCC b/c of M-P 
UC is regarded as gov benefit
program; state can prefer its own
citizens who have been paying
taxing to support program over those
who have not
o SD owned a cement factory &
charged more to out-of-state
purchasers of cement than in-state;
Court said this was a gov owned &
operated business; gov was M-P 
justified exception under DCC
 If state/local gov discriminates against out-of-staters with regard to the
ability to earn a living, it violates the P&I Clause of Article IV (applies
only when discrimination against out-of-staters) unless it’s necessary to
achieve substantial gov interest.
 There must be discrimination against out-of-staters
 Discrimination must be w/ regard to fundamental rights or the
ability to earn one’s livelihood
 If π is a corporation challenging a state/local law, use ONLY the
DCC in analysis
 If π is a citizen, then consider both DCC & P&I Clause
 Discrimination will be allowed only if it’s necessary to achieve substantial
gov interest
 Means have to be necessary (necessary  no less restrictive
alternative can reach its objective)
C. Privileges or Immunities Clause of 14th Amendment: been used only by
SCOTUS to protect the right to interstate travel.
 This clause says no state may deprive any citizen of US of privileges or
immunities of US citizenship. Fed courts cannot use P/I clause to strike
down local laws

- Start by asking does state law discriminate against out-of-staters?


A. If no, P&I is inapplicable & law violates DCC if it’s a burden on interstate
commerce then burdens outweigh benefits
B. If yes, it puts burden on interstate commerce, violates DCC (unless exceptions)
 If w/ regard to earn a living, then violates P&I Clause

State Taxation & Interstate Commerce


- States may not use tax systems to help in-state businesses at the expense of out-of-state
businesses
- State only may tax activities that have substantial connection w/ that state

PROPERTY

MODULE 2: PERSONAL PROPERTY


- Rule of capture: [Pierson v. Post] one acquires a property right in a fugitive resource
(moving like oil) by so entrapping or ensnaring the resource as to render its escape a
virtual impossibility
A. Led to the over capture of animals & resources so the rule of capture has been
MODIFIED to be more humane in its application
- Law of finders:
A. The prior possessor of the item always defeats the subsequent possessor
(assuming the prior possessor nor the subsequent possessor happen to be the
rightful owners of the object)
B. Finder defeats all except the finder’s rightful owner
 Facilitates lost items return to the rightful owner
- Adverse possession:
A. Rests on the construction that possession is 9/10ths of the law
B. Under the rubric of AP, possession for a statutorily prescribed of time, if certain
req’s are met, can ripen into a title
- Gift:
A. Voluntary transfer of personalty (some movable thing)
 Inter vivos gift: gift made during giver’s lifetime
 Most common
 IRREVOCABLE
 Causa mortis: gift in anticipation of the giver’s death

MODULE 3: ESTATES IN LAND


- Present possessory estates
A. Fee simple: absolute, limitless ownership of potentially infinite duration
 Language: “to A,” and “to A and her heirs”
 Freely alienable – to alienate means to transfer
 Fee simple can be freely transferred
 Freely devisable – property interest is capable of being transferred by will
 Devise: pursuant to will
o If you hold fee simple, you can leave it to another in will
 Freely descendible – state will pass to holder’s heirs if they die intestate
** A LIVING PERSON HAS NO HEIRS**
B. **Defeasible fees: fee simple w/ a “catch”
 Fee simple determinable: “to A so long as she remains a lawyer”
o Fee simple with a “catch”  A has to be a lawyer to keep
land
 Created by clear DURATIONAL language  “so long as,”
“until,” “unless”
 If stated condition is violated, forfeiture is AUTOMATIC
 Freely alienable, devisable, and is freely descendible BUT
ALWAYS SUBJECT TO THE STATED CONDITION
o Condition doesn’t disappear; tags along w/ the estate
 Possibility of reverter only future interest capable of accompanying
fee simple determinable
 Fee simple subject to condition subsequent:
 Must have clear DURATIONAL language
 Must have clear statement of RIGHT OF REENTRY
o Ex: to Rachael, but if coffee is ever consumed on premises,
grantor reserves right to reenter and retake
 R: FSSCS: both qualifications are present
 “but if”  clear durational language
 Grantor is explicitly stating his right of
reentry
 Grantor has right of reentry synonymous with the
right of termination
 NOT automatically terminable but can be cut short
at grantors option and prerogative
 Forfeiture only occurs when reentry occurs
 Fee simple subject to executory limitation: “to A, but if X event occurs,
then to B”
 A has fee simple subject to executory limitation; B has a shifting
executory interest
 In the event of the condition’s breach, there will be an automatic
forfeiture but now, not back to O but to B
 Words of mere hope, desire, or intention are inadequate to encumber
an estate as a defeasible fee
 Absolute restraints on alienation are unenforceable
C. Fee tail
D. Life estate:
 Must be measured in explicit lifetime terms and never in terms of years
 Ex: “to A for life”
o Estate rendered in explicit lifetime terms
 Doctrine of waste:
 Life tenant is entitled to all reasonable uses and profits from the
land
 Life tenant must not commit waste: must not do anything to injure
the future interest holders
- Future interests
A. Future interests capable by O the grantor:
 Possibility of reverter: accompanies only the FSD
 Future interest has to be called possibility of reverter
o O conveys to A so long as popcorn isn’t made on premises
 A has fee simple, O has possibility of reverter
 Right of reentry: accompanies only FSSCS
 O conveys to A but if coffee is ever consumed on sight then O has
right to reenter and take
o A has FSSCS but O has right of reentry
 Reversion: future interest that arises in grantor that transfers estate in
lesser duration than she started with, other than FSD or FSSCS
 O, the holder of fee simple absolute, conveys to A for life
o O has carved out lesser duration than she started with  O
has a leftover called a reversion
B. Future interest capable of creation other than O grantor  transferees:
 Vested remainder:
 Remainder: future interest created in a grantee  can only be
created in transferees; third-parties other than O, the grantor
o “To A for life, then to B”
 B is the remainderman who only takes effect upon
natural conclusion that A dies
 Remainders never follow defeasible fees
o Remainder is following a present
estate of known fixed duration 
remainders don’t divest or cause the
forfeiture of another
 Vested when: (1) created in known taker who (2) is not subject to
condition precedent
 Not waiting for taker to be born & we know it
o Indefeasibly vested remainder: if holder has this, then
remainderman is known w/ no strings attached to his taking
 To A for life, then to B.
 A has a life estate, B has a remainder  not
only is B known, but his taking is not
subject to any conditions
o Vested remainder subject to complete defeasance:
[defeasance means forfeiture] – vested remainder that is not
subject to condition precedent but IS subject to condition
subsequent that if manifested will work forfeiture of the
remainder
 Condition subsequent when it appears after the
language introducing to remainderman
 To A for life then to B, but if B leaves the
legal profession, then to C.
o B has a vested remainder – if
condition manifests, it would cost
B’s forfeiture & C has a shifting
executory interest
o Vested remainder subject to open: remainder is vested in a
group or category of takers of among whom at least one is
qualified to take
 To A for life, then to A’s children
 A has 2 children – C and D. They have
VRSO b/c C & D exist and one of them will
get it.
o As long as A is alive, this class of
category or takers can expand. A can
have more children b/c A is still
alive
 Contingent remainder:
 Created in yet unknown taker or subject as yet unmet condition
precedent or prerequisite on the land
o Ex: to A for life, then to A’s first child. A’s unborn first
child has a contingent reminder; it is subject to yet unmet
condition
o Ex: to A for life and then if he graduates from law school to
B. A is only in HS. B has contingent remainder b/c unmet
condition
 Executory interest:
 Takes effect by cutting short another
o Typically follows a defeasible fee
 Takes effect after the previous estate holder’s
forfeiture
- Rule Against Perpetuities (RAP):
A. Certain future interests are void if they vest too far in the future
 Have to become possessory within 21 years of the relevant life in being
B. Applies only to contingent remainders, executory interests, and vested remainders
subject to open
 Will not apply to indefeasibly vested remainders, vested remainders
subject to complete defeasance, or any three future interests that could be
created in O the grantor
C. Step One: Determine Which Future Interest You Have
 Ex: to A for life, then to A’s children. A is alive & A has no children.
 A has a life estate; the yet unborn has contingent remainder 
contingent upon the taker being born.
o Since it’s a contingent remainder, keep going
D. Step Two: What Has to Happen for Future Taker to Take?
 Ex: A must die to leave behind to child
E. Step Three: Find a Measuring Life
 Find a living person alive at the time of the conveyance whose life or
death is relevant to the conditions occurrence
 Ex: A is the measuring life
F. Step Four: Will We Know For Sure Within 21 Years of the Death of the
Measuring Life If There Is or Is Not A Future Interest Holder to Take?
 Ex: We will know at the moment at A’s death if she left behind a child or
not
G. ** An executory interest with no limit on the time within which it must vest
violates the RAP
 Ex: O conveys “ to A so long as alcohol is never served on sight. And if
alcohol is served, then to B”
 A has a defeasible fee – FSSEI
 B/c it’s B rather than O to benefit, A has a fee simple subject to
B’s executory interest
o Not valid b/c doesn’t satisfy step 4
 A gift to an open class conditioned on the members surviving to an age
beyond 21 violates the common law raft
- Concurrent estates: more than one person owns Blackacre at the same time
A. Joint tenancy: two or more own Blackacre with the right of survivorship
 Right of survivorship: when one JT dies, his share goes automatically to
the surviving JT
 JT’s interest is alienable – could be transferred during his/her lifetime
 Not divisible or descenable  cannot be left by will, will not pass
through states of intestacies b/c there is a right of survivorship.
 Create JT by:
 At the same time
 By the same title
o By the same instrument: deed, will, etc.
 With identical shares
 Rights to possess the whole
 Grantor must clearly state the right to survivorship
 “To A and B, as joint tenants, with the right of survivorship”
 Joint tenancies are disfavored – they get to avoid probate because of their
automatic right of survivorship
 Need for “strawman” (common law)
 Sever JT:
 Sale: JT can sell or transfer her interest during her interest during
her lifetime
o Severs JT as to that persons share (then TIC)
o Ex: O conveys Blackacre to
 Partition: (1) partition by voluntary agreement – desirable; parties
are encouraged to work out a plan for dissolution privately, or (2)
partition in kind – court action for physical division of Blackacre if
in the best interest of all, or (3)
B. Tenancy by the entirety: between married partners with the right of survivorship
 Can only be created between married partners with the right of
survivorship
 Neither tenant acting alone can defeat the right of survivorship by
unilateral transfer to a third party
 Impermissible for one party of TBE to transfer share to another
C. Tenancy in common: two or more own Blackacre with NO right of survivorship
 Each tenant in common owns an individual part and each has the right to
possess the whole
 Each TIC’s interest is divisible, descendible, and alienable
 No survivorship rights between TIC
 Presumption favors the TIC for the reason that it disfavors the JT
 TIC respective shares are always subject to the system of probate
- Rights and duties of co-owners:
A. Possession: each co-owner has the right to use and enjoy the whole
 Ouster: wrongful eviction/exclusion of a co-owner
B. Absent ouster: a cotenant in exclusive possession is not liable to the other for rent
C. Rent from third parties: cotenant who leases all or part of the premises to a third
party must account to his co-owners, giving their fair share of the rent income

MODULE 4: LANDLORD AND TENANT

- Four ways to create a lease


A. Tenancy for years (term of years): lease for a fixed period of time – period of time
can be as little as two weeks, or can be as long as 30 years
 As long as you know the termination date from the start, you have a term
of years.
 Term of years greater than 1 year MUST be in writing simply to
satisfy the statute of frauds
B. Periodic tenancy: lease which continues for successive intervals, until landlord or
tenant give proper notice to terminate
 Can be created expressly; ex: “Landlord conveys to tenant from year to
year”
 Because periodic tenancy doesn’t tell at the outset when it will terminate,
notice is NEEDED in writing when it is terminating
 At common law, you needed notice that is at least equal to length
of the period itself
o In common law, in a month to month tenancy,
landlord/tenant would have to give at least one month
notice to terminate.
 Exception: if the lease ran from year to year or
greater, only needed 6 months’ notice.
 Most states have landlord-tenant statutes that will prescribe how
much notice is needed to terminate the PT
 PT can also arise by implication; PT can arise impliedly by:
 Possible for PT to arise by implication when land is leased w/ no
mention of duration, but provision is made for the payment of rent
in set intervals
o T is implied month to month PT if the payment is due on
the first of every month
 Oral term of years in violation of the statute of frauds creates an
implied periodic tenancy
C. Tenancy at will: tenancy for no fixed duration; endures at the will at either the
landlord or the tenant.
 Ex: to T, for as long as L or T desire
 Tenancy at will is theoretically terminable at any time, today by statute, a
reasonable demand to vacate is needed to put TAW to an end
D. Tenancy at sufferance: created when a tenant has wrongfully held over past the
expiration of the lease
 Give the wrongdoer a leasehold interest to give landlord the ability to
recover rent for any time
- Tenant Duties & Landlord Remedies
A. Tenant’s duty to maintain the premises
 Tenant has to maintain the premises and make ordinary repairs
 Must not commit waste  a tenant must not commit voluntary or
affirmative waste (overt destruction)
B. Tenant’s duty to pay rent
 If tenant breaches duty to pay rent but is still in possession of the
premises:
 To proceed against the wrongdoer for eviction
o Requires landlord goes through the judicial process
 Continue the relationship and sue for rent
 Landlord must not engage in self-help
 This is punishable criminally
C. If tenant wrongfully vacates with time left on a term of years lease:
 Surrender: aggrieved landlord could treat tenants vacating as a possible
surrender
 What is surrender? Tenant shows by words or conduct that she
wants to give up the lease
 Ignore the abandonment and hold the tenant liable for each months unpaid
rent just as if tenant were still there
 Only available in a minority of states
 Re-let the premises on the wrongdoer’s behalf, holding her liable for any
shortfall or deficiency
 Most states require the landlord to at least try to re-let the
premises; doesn’t have to succeed to re-let but must make a
reasonable good faith attempt at it.
 This is a mitigation principle; opportunity for the aggrieved
landlord to cut his losses
- Landlord’s Duties & Tenant’s Remedies
A. Duty to deliver possession
 Require that landlord provided tenant with:
 Legal possession (the legal right to be there): keys, deed
 Actual physical possession of the premises – if at the start a prior
hold over tenant is still in possession, the landlord has breached,
and the new tenant gets damages
o In a vast majority of Jx, this is the landlords problems
B. Implied covenant of quiet enjoyment (both to residential & commercial leases)
 Fundamental implied promise to provide the tenant with quiet use and
enjoyment of the leases premises  landlord can breach this “promise”
only by:
 Breach of actual, wrongful eviction: if landlord wrongfully
excludes a tenant from the actual and whole of any part, she has
disrupted the tenant’s use to quiet enjoyment
 Commit a constructive eviction: when a landlord commits a
constructive eviction; the landlord’s actions give the tenant no
choice but to evict the premises. For there to be constructive
eviction:
o Substantial Interference due to the landlord’s actions or
failure to act – could be a permanent problem
o Tenant must notify landlord of the problem & landlord
must fail to act meaningfully
o Tenant must vacate within a reasonable time after landlord
fails to fix the problem (“goodbye”)
 Landlord must not permit a nuisance on site
 Landlord must control common areas (liable to control areas like stairways
and elevators)
C. Implied warranty of habitability (only in residential domain)
[NONWAIVABLE]
 Premises must be fit for basic human dwelling; basic barest essential for
human dwelling be provided.
 Ex: no heat, no pluming, no running water
 Aggrieved tenant can:
 Move out and end the least BUT he doesn’t have to
 Repair and deduct from the rent
 Reduce rent or withhold all rent until court assesses fair rental
value in light of the defects
 Remain in possession, continue to pay rent, and then sue the
landlord for damages
 Retaliatory eviction: landlord must not take reprisal against a good
faith, whistleblower tenant
o Landlord must not harass, evict, raise the rent, or take any
other reprisals against the reporting tenant
 If the landlord does, the tenant is in breach of the
doctrine of retaliatory eviction
- Assignment v. sublease
A. Assignment: arises whenever the tenant transfers everything that she has left
under the original lease to another (the assignee)
 Here, the two have a privity of estate (property based nexus): the assignee
is now in possession of the premises; the legal relationship that flows is a
privity of estate  they are liable for all of the covenant/promises in the
original lease that run with the land
 Promise runs with the land when it affects the leased premises
o Ex: promise to pay rent or the promise to repair the
premises or the promise to paint the premises
 Here, the assignee and the landlord are NOT in privity of contract
(contract-based nexus); but the original tenant (assignor) is NOT in privity
of estate with the landlord, and is instead remains in privity of contract 
tenant 1 and landlord exchange the original promissory words that got the
whole “ball” rolling
 T1 is secondarily liable under privity of contract  landlord can
go after T1 for T2’s destroyal of the premises
B. Sublease: arises whenever the tenant1 transfers less than everything she has under
the terms of the original lease
 If T1 has 10 months remaining on a lease and transfers only the next 3
months on the lease, this is a sublease.
 T1 is liable to T2 and vice versa, but L and T1’s relationship remains in
tact. L and T2 share no nexus; they are neither in privity of estate nor in
privity of contract.
 T1 remains fully liable for T2’s abuse to L
MODULE 5: SERVITUDES

Easements: the grant of a nonpossessory interest that entitles its holder to some limited use or
enjoyment of another’s land  called the servient tenement
- Ex: right to lay utlity lines on another’s lands, the easement giving its holder the right of
way across a tract of land, etc.
- Easements can be affirmative or negative
A. Most are AFFIRMATIVE  the right to do something on servient land – called
the servient tenement
B. Can also be NEGATIVE  entitles its holder to compel the servient donor to
refrain from doing something that otherwise but for the negative easement would
be permissible
 Are permitted in only four settings: (LASS)
 Light
 Air
o Refrain servient donor that would interrupt or impede
parcel’s access to air flow
 Support
o Refrain from excavating/digging on parcel that would work
to detriment for support
 Stream water from an artificial flow
 Minority states: scenic view
C. NEGATIVE EASEMENTS CAN ONLY BE CREATED EXPRESSLY  no
explicit or automatic right to negative easements
 Must be created by signed writing
- Easements are either appurtenant to land or held in gross
A. Appurtenant: when it benefits its holder of the easement in his physical use &
enjoyment of his property
 “it takes two”  two parcels must be involved: a dominant tenement
derives the benefit of the easement; servient tenement suffers the burden
of the easement
 (1) A grants (2) B a right of way across A’s land so that B can more easily
reach his land 
 Two parcels are involved; A’s land is serving B’s easement
[servient tenement] – B’s land is deriving a benefit thanks to the
easement [dominant tenement]  B has an easement appurtenant
to B’s dominant tenement
o Allows B to derive a benefit gained or advantage of B’s use
& enjoyment of B’s own land
B. In gross: confers upon its holder only a personal/financial commercial benefit (not
linked to easement holders use or enjoyment of any or his own land)
 Right to place billboard on another’s lot
 Right to swim in another’s pond
 Right to lay power lines on another’s land
 Servient land is burdened in all examples, but there is no dominant
tenement; only one parcel is involved  servient land
- Easement appurtenant passes automatically with the dominant tenement; burden of
easement appurtenant will pass with the servient land, unless the new owner is a bonified
purchaser without notice
A. Even burden will pass automatically with the servient land
- Easements in gross are not transferable unless they are for commercial purposes
A. Ex: A has right to swim in B’s pond  easement in gross; only 1 parcel
 These are considered personal to their holder so not transferable
B. Commercial easements in gross are assignable (for business purposes)
- Scope of easement is set by terms or conditions that created it  cannot be any unilateral
expansion of an easement to benefit a non-dominant parcel
A. Unilateral expansion of easement is not allowed – technically, asking how to
create affirmative easements  mindful that negative easements can only be
created EXPRESSLY by express grant
B. Affirmative easements can be created in any 1 of 4 ways: (PING)
 Prescription
 May be acquired by the elements of AP – COAH (Continuous use
for the given statutory period that is open & notorious use, actual
entry that need not be exclusive, with hostile use [without the
servient owner’s consent])
o A cuts across B’s front lawn to get across to B’s parcel;
suppose B makes continuous habit of that use for the
statutory period & it’s open and notorious (visible)
 Implication (easement implied from prior use)
 Court will imply easement on behalf of a pattern of preexisting use
if the use/easement is apparent & if easement’s continuation is
reasonably necessary to the dominant land’s use & enjoyment
 Necessity
 Whenever grantor conveys his land without no way out except
over some part of the grantor’s remaining land
o Ex: A owns 100 acres & conveys 2 acres to B. B is in the
middle of the remaining 98 acres. Court will not abide a
landlocked situation – will imply an easement of necessity
over some necessity of the grantor’s remaining acres
 Grant
 Easement to endure for 1+ year must be in writing that complies
with the formal elements of a deed – writing to create easement is
called deed of easement
o Need for writing requirement is linked to Statute of Frauds

- License: mere privilege to enter another’s land for some delineated purpose
A. Are not subject to the statute of fraud – very informal; don’t need writing to create
a license  can be created orally
B. Licenses are freely revocable at the will of the licensor unless estoppel applies
to bar revocation
 Estoppel applies to bar revocation only when the licensee has invested
substantial money or labor, or both in reasonable reliance on the licenses’
continuation
- Applies when:
A. “Ticket cases:” tickets create freely revocable licenses
B. “Neighbors talking by the fence”  suppose neighbor A is talking by the fence
w/ neighbor B and says you can have that right of way across my property; this
easement is unenforceable & violates the statute of frauds  creates a freely
revocable license

Profit: the profit gives its holder the right to enter servient land and take from it the soil or some
natural resource
- Profit shares all the rules of easements but don’t call this entitlement  call it a profit and
then apply all you know about easements

Covenants: starts off as a contract regarding land; covenants can be restrictive (negative) or
affirmative; most are called restrictive covenants
- Restrictive covenants: promise to refrain from doing something related to land (obliging
maker from doing something related to land)
A. Ex: “I promise not to build for commercial purposes on my land;” “I promise not
to post for sale sign;” “I promise not to maintain a petting zoo”
B. The covenant had to be born because of the property law instance that negative
easements be so negative in scope (LASS)
 Negative easements would not allow neighboring landowners to restrict
their easements more broadly
- Affirmative covenants: promise to do something related to land
A. Ex: “I promise to maintain our common fence”

Equitable Servitudes (in equity) v. Covenants (at law): look for the relief you’re seeking 
when π wants money damages to be made whole as a consequence of ∆’s betrayal of the
servitude, THIS IS A COVENANT; when π wants an injunction construed in equity, THIS IS
EQUITABLE SERVITUDE – “π seeks to enjoin ∆ from doing x, y, and z.”
- When asked to construe promise as covenant, prepare to answer when will this covenant
run with the land at law? When capable of binding successors to the originally promising
parties
A. Neighbor A promises neighbor B that A won’t build for commercial purposes on
A’s land (these are the originally promising/covenanting parties). A then sells her
burdened parcel to A1  A & A1. B sells benefitted parcel to B1. A1 is now
commencing manufacture of a plant. B1 wants to sue A1 for money damages, for
A1’s alleged betrayal of A’s promise to B. Will B1 succeed?
 A’s parcel is burdened by the promise & B’s promise is benefited by the
promise
 IT DEPENDS  if whether the burden of original promise runs
from A to A1 and the benefit of A’s original promise runs from B
to B1 – DOES THE BURDEN OF A’S ORIGINAL PROMISE
RUN WITH THE LAND FROM A TO A1? Are subsequent
owners subject to this limitation?
o For a burden to run with the land at law, follow WITHN
(Does burden of A’s promise to B from A to A1?)
 Writing  original promise had to be in writing
 Intent  original parties (A&B) intended that the
burden would run
 Touch & concern  promise affects parties as
landowners; when it is relevant/pertaining to the
parties as landowners & not simply as citizens at
large
 Horizontal and vertical privity: BOTH needed for
burden to succeed in running from A to A1
 Horizontal: from A to B (originally
conventing parties); Requires they be in
succession of estate
o At the time A made promise not to
build to B, A and B were in grantor-
grantee relationship visive each
other; also satisfied if A & B are in a
landlord-tenant relationship; also
satisfied if A & B are each other’s
debtor-predator
o Difficult to establish; likely absence
tends to be sticking point
o When there is horizontal privity, it
means A & B were in grantor-
grantee relationship when the
original promise was made.
 Vertical: from A to A1; demands non-hostile
nexus between A & A1  comes from
contract, deed, familial relationship, devise
from will
o Will be absent if A1 acquired interest
through AP  AP is hostile to A
 Notice  A1 must have had notice of that promise
when she took
o If facts can sustain conclusion that all those WITHIN
elements have been met & these are successful in binding
the successor A1, if B1 wants to sue A1 for money
damages for A1’s violation, you need to get to second
inquiry  DOES THE BENEFIT FROM A’S
PROMISE TO B RUN FROM B TO B1? (WITV)
 Writing  original promise in writing
 Intent  original promisee intends the promise
would run
 Touch & concern
 Vertical privity  non-hostile nexus between B and
B1

Equitable Servitudes: promise that equity will enforce against successors


- Equitable servitude is accompanied by injunctive relief
- To create ES capable of binding successors, can I get a WITNES?
A. Writing  original promise was in writing
B. Intent  parties intended that the promise would bind successors
C. Touch & concern  promise affects parties as land owners
D. Notice  successors of the burdened land had notice of the promise when they
took
E. ES  reminder that we are in the purview of the equitable servitude
- **** PRIVITY IS NOT REQUIRED TO BIND SUCCESSORS TO AN
EQUITABLE SERVITUDE ****
- Implied ES (general/common scheme doctrine): most states/courts will allow ES to be
implied; arises in context of subdivider
A. Ex: A is subdivider (has many lots) & sells the first 50 through deeds restricting
use to residential purposes only. A sells 2/3 remaining lots with no such
restriction included. B buys one of the later lots w/ no restrictions. So, B builds a
convenience store since deed is not restricted to residential purposes only. Can B
be enjoined from building commercially?
 Once enjoined, must answer in equity  YES, if the two elements of
common scheme doctrine apply:
 Court will imply a reciprocal negative servitude if:
o 1. When the sales began, A (subdivider) had general
scheme of residential development which included ∆’s
(B’s) lot
o 2. ∆ (B) had notice of the restriction contained in the prior
deeds.
 3 Forms of Notice:
 Actual Notice
o Prior to B’s closing, B came to know
of the common restriction
 Inquiry Notice (constructive notice)
o Synonymous w/ lay of the land –
tells us that B is charged w/ notice of
common restriction if neighborhood
appears to conform to the common
restriction  does B bother to check
out the subdivision or not? B is
charged with what a reasonable
inspection of the neighborhood
would have told him.
 Record Notice (constructive notice)
o Imputed to buyers based on
publically recorded documents
- Widely recognized by a wide majority of Jx in the US, but some states (led by
Massachusetts) that refuses to imply equitable servitudes
A. This minority very strictly construes the Statute of Frauds and the writing
requirement
- Doctrine of Changed Conditions: comes up whenever someone subject to the terms of an
equitable servitude argues to the court, “Your honor, release me from the terms of the
restriction b/c the neighborhood changed that the restriction doesn’t make any sense. I
invoke the doctrine of changed conditions.”
A. To satisfy this doctrine, you must:
 Show the change you allege is so pervasive that the entire area’s essential
character has been forever altered

MODULE 6: CONVEYANCING

Land Sale Contract


- Every purchase and transfer of land must being with a contract
A. Land contract typically must be in writing, signed by the party to be bound (the ∆)
 Want to get signature of both the buyer and the seller
B. Land contract must reasonably describe the land
C. Land contract must state some consideration
- Exception (to Statute of Frauds)  doctrine of part performance will take the contract
out of the writing requirement and allow some specific performance of the oral contract
to the sale of land, if any 2 of 3 circumstances are present: (if buyer does 2 of 3 of these,
doctrine of part performance is satisfied)
A. Buyer takes possession of the land
B. Buyer pays all or part of the price of the land
C. Buyer makes substantial improvements to the land
- If amount of land recited in the land contract is MORE than actual size of the parcel = ∆
(B) gets specific performance with a pro rata reduction in price
A. Preferred remedy for breach of a land contract: specific performance
 Land is considered unique
- Risk of loss  apply doctrine of equitable conversion – tells us that equity regards as
done that which ought to be done – once contract is signed, in equity, B owns the land
subject to condition that he pay purchase price at closing
 In equity, it is deemed the buyers land and the buyer’s loss from the
moment the contract is signed. The buyer, b/c of equitable conversion, at
common law is going to be saddled w/ any loss to the premises that
B. Destruction: if between the land contract and the closing, the land is destroyed
through no fault of either party, B bears the risk of loss unless the contract says
otherwise
C. NY: risk of loss remains with sellers until (a) buyer has title, or (b) buyer takes
possessions, as long as buyer is without fault
- 2 implied promises in every land K:
A. 1. Seller promises to provide marketable title at the closing (doctrine of
marketable title)
 Marketable title is title that is free from reasonable doubt; title free from
lawsuits/the threat of litigation
 Unmarketable title:
o Adverse possession: if even part of title rests on AP, it is
unmarketable; seller must be able to provide good record
title
o Encumbrances: marketable title is unencumbered free
simple  the presence of any servitude on Blackacre
(easement, covenant, outstanding mortgage) will render
title unmarketable.
 Presence of servitudes renders the title
unmarketable
 Exception: encumbrances that increase the value of
the premises or are visible do not make a title
unmarketable
o Ex: seller has right to satisfy an
outstanding mortgage/lien at closing,
w/ proceeds of sale  buyer can’t
claim title unmarketable b/c subject
to mortgage if parties understand that
closing = mortgage being satisfied or
discharged
o Zoning violations: if Blackacre is in violation of a zoning
ordinance, title is unmarketable.
 Mere presence of zoning restrictions is of no lgal
consequence  only Blackacre’s violation renders
the title unmarketable
B. 2. Seller promises he won’t make any false statements of material fact (seller is
liable for failure to disclose latent material defects  liable for any lies/omissions
of latent defects)
 Land K contains no implied warranty of fitness or habitability  CL norm
is caveat emptor (buyer beware)
 Exception: Builder-vendor of a new home implicitly warrants that the
premises were constructed in an inhabitable workman like manner
(implied warranty of fitness & workman like construction)
 Every land transaction has to involve 2 step process: (1) contract
[endures until you get to #2] (2) closing  deed

Deed
- To pass title, must be: (LEaD)
A. Lawfully executed, and
 Must be in writing, signed by the grantor; must reasonably describe the
property
 Does not need to recite consideration, doesn’t need to have to pass
for valid deed
 Description requires only unambiguous description
B. Delivered
 Delivery standard could be met when grantor physically or manually
delivers the deed
 However, delivery of a deed DOES NOT require ACTUAL, PHYSICAL
TRANSFER of the deed instrument itself
 Standard of delivery is a legal standard, not an actual standard.
 Grantor must show the present intent to be immediately bound. If
grantor does this, delivery has been accomplished as a legal matter
o Exception: Recipients express rejection of the deed defeats
delivery (e.g. I can’t accept such an expensive gift = NO
delivery)
- If a deed absolute on its face & is transferred to the grantee with an oral condition, the
oral condition is dropped out  it’s void/unenforceable
- Delivery by escrow is permissible; grantor may deliver an executed deed by a third party
(escrow agent) w/ instructions that deed delivered to grantee when x conditions are met.
When conditions are met, the title is transferred automatically.
A. Why? B/c grantor doesn’t have to be present/alive to ensure that title is passed
 Doesn’t matter if grantor is dead, incompetent, or unavailable before
condition is met
- 3 types of deed:
A. 1. Quitclaim: contains NO promises; grantor isn’t even promising that he has
good title to convey. Quitclaim is worst deed buyer can hope for
 Grantor is not promising he has title to convey – but grantor did implicitly
promise in land K to provide marketable title at closing  any post-
closing problems are the buyer’s problem b/c the grantor is off the hook
B. 2. General Warranty: warrants against ALL defects in title including those due
to grantor’s predecessors; best deed buyer can hope for
 Contains 6 promises grantor makes, including promises of predecessors in
interest:
 Present Covenants: breached, if ever, at the moment of delivery
 Statute of Limitations begins to run at the instance of delivery
o 1. Covenant of Seisin: grantor owns this estate that grantor
is giving to grantee
o 2. Covenant of Right to Convey: grantor promises she has
the power to make this transfer
 Grantor is under no temporary restraint of alienation
o 3. Covenant Against Encumbrances: grantor promises there
are no servitudes or mortgages on the land
 Future Covenants: not breached, if ever, until grantee is disturbed
in possession; cause of action for breach will not begin to accrue
until such time in the future as grantee is disturbed in possession
o 4. Covenant for Quiet Enjoyment: grantee won’t be
disturbed by possession by a third-party’s lawful claim of
title
 The grantor is promising that he isn’t conveying the
land two people at the same time
o 5. Convents of Warranty: grantor will defend grantee
against lawful title claims brought by others
 If someone does happen to show up w/ a claim of
superior title (surprise to us both), grantor will step
up to the plate & defend grantee
o 6. Covenant for Further Assurances: grantor will do
whatever is reasonably needed in the future to perfect the
title if it turns out to be flawed
 Grantor says he’s a good faith cooperator
C. 3. Statutory Special Warranty Deed: Provided by statute in many states;
contains 2 promises that grantor makes only on behalf of himself; grantor makes
no promises/assumes no liability for any transgressions transmitted by his
predecessors
 Promises:
 1. Grantor promises he hasn’t conveyed estate to anyone other than
grantee; AND
 2. Estate is free from encumbrances made by grantor
Recording System: “case of the dirty double dealer”
- Ex: O conveys Blackacre to A; thereafter, O conveys Blackacre to B. O leaves town.
- Policy: exists to protect mortgagees & bonified purchasers
- Who wins?
A. If B, who got there last, is a bonified purchaser in a notice Jx, B wins.
 Must prove that you’re a BFP by:
 1. Purchases land for substantial pecuniary value – must not have
come to the land b/c of a gift or left it in their will
o Recording statutes don’t protect donee’s, heirs, or devisees.
Must have BOUGHT land.
 2. Buyer, at the time of his closing, must have been without notice
of A’s existence
o Later buyer must have taken w/o notice that someone else
got there first.
 3 Forms of Notice:
 1. Actual
 2. Inquiry
o If A was in possession at or before
the time of B’s closing, B has inquiry
notice of that fact
 3. Record
o Imputed to buyers on the basis of the
public records; if at the time B closes
& A’s deed had been properly
recorded within the chain of title, B
has record notice of A; regardless of
whether B bothered to search the
public records or not.
B. If B, who got there last, is a bonified purchase in a race-notice Jx, B wins ONLY
IF she records first
- Once you identify whether B, who got there is last, is a bonified purchaser & he is a BFP:
A. Notice state: B wins, as long as he is the last BFP to enter
 Half US enacted notice statute
B. Race-notice state: in addition to (1) being the last BFP to enter, to win, (2) B
must also win the race to record (must record first)
C. Race state (minority): awards victory to whoever wins the race of recording,
irrespective of persons good faith or bad faith