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ATTRIBUTES OF ØSHIP & LIMITS:Ø against whom? Protection of 4 things: Econ productivity; future interests (absolute)..

s (absolute).. To create: © law: “to A and his heirs.” Modern Law: “To A” is equitable action for partition (court will divide property or order it sold and proceeds
2) Certainty; 3) Enforceability; 4) fairness. Øship=sector of time &space. Exclude, Use, good enough FS DEFEASIBLE: holder of defeasible my hold or convey property, but he distributed. Repairs‐ may get contribution from others as final accounting of partition/sale
Dispose: Exclude: 4 types: 1) intrusion upon one’s seclusion; 2) Public disclosure of and those who take from him must use property subject to a restriction. 3 types:FS (contribution offsets fair rental charges of improver’s rent‐free possession.
embarrassing private facts; 3) Publicity placing one in false light; 4) Right of publicity: Determinable (FSD): automatically comes to an end when stated event occurs. FSD Improvements‐ cotenant can recover for enhanced value of improvements (but not of
using another’s name/likeness for another’s advantage. Dispose: 2 conflicting interests: is used to prevent the property from being put to a certain use which GOR opposes. changes that decrease value, may have to pay for changes resulting in decreased value).
free alienation (Tx prpty from A to B) on land v.s.Right to restrict alienation (like single Limitation controls even after it is passed. POSSIBILITY OF REVERTER (POR): possibility that Statute of Anne TOC owes rents/resources to other T’s if exploited beyond fair share
family hoods) Look @ scope/time/CNS to see if restriction = valid. Silent consent: clause in ⊥will revert to him if stated event occurs. creator of FSD always keeps a POR. To create: LANDLORD AND TENANt: SOF: Any lease >1yr must be in writing (or else it creates a estate
lease requiring T to get LL consent to reassign/sublease (although LL could previously “so long as…” or “until…” or “during…”. FS SUBJECT TO CONDITIONS SUBSEQUENT (FSSCS): at will. To figure out whether lease is >1yr, most cts add together the fixed term and any
withhold unreasonably, modern trend make LL act reasonably because of implied covenant if stated event occurs, does NOT automatically end. Instead, GOR has right of entry— period for which the tenant has the option to renew. ESTATE FOR YEARS (E4Y): Most
of good faith/fair dealing‐ absent language to the contrary). PREEMPTIVE RIGHTbefore but nothing happens until he actually exercises that right. To Create: “upon express leases : fixed period of time. Must have a Start date and End Date which must be Fixed.
property can be sold to 3rd party it must be offered to conveyor/heirs/designated person (to condition that…” or “provided that…” & some states require statement that GOR may Termination: no additional notice of termination must be given by either party—on last
be reasonable needs duration‐ 14 days to exercise AND life in being +21 yrs maxand enter property. FS SUBJECT TO EXECUTORY LIMITATION (FSSEL): estate passes to 3rd day, tenancy simply ends and T must leave the premises (or stay and it will become a
method to calculate price) Gift no restrictions on gift land/just selling. RIGHTS OF person (other than GOR) if an event occurs. To create: “…but if x occurs, then to…” different type of estate). PERIODIC TENANCY: One that continues from one period (yr to yr,
POSESSORS: Wild Animals: Once a person has gained P’ssn of a wild animal (pursuit of LIFE ESTATE: an interest which lasts for the lifetime of a person, “measured” by a month to month) to the next automatically, unless either party terminates it at the end of
animal is not enough, must deprive it of its natural liberty), he has rights in that animal person’s lifetime. To create “To A during his lifetime”. Defeasable “to A so long as she a period by notice. Creation by Implication: A lease with no stated duration (ex. T
superior to everyone else. Ratione Soli: own soil/ owns whats on it. Abandoned Prprty: remains a widow, then to B” (this is a life estate determinable, bc when dies, no longer a agrees to pay L $20/mo but with no end period)=Periodic tenancy. Also, created if T holds
(clear & unequivocal) Ø no longer wants to P. Must show: intent to abandon and voluntary widow). LE PUR AUTRE VIE: measured by the life of someone other than GEE “to A for life of over, and LL accepts rent,. Termination: Auto‐renewed unless 1 party gives a valid notice
relinquished all right, ⊥, interest. Belongs to: ƒ of prpty, against all others, including former B then to C. If GEE dies before end of measuring life, then estate treated as personal Prpty, of termination. At Common Law, notice for yr to yr lease= 6mo. If <1yr, full period notice
Ø. Lost Prpty: owner unintentionally and involuntarily parts w/ P’ssn/does not know where which passes by will or intestacy. Duties of Life Tenant: May not commit Waste (may not required. Notice had to set the end of a period as the termination date. Modern: Most
it is (like stolen prpty found by a non‐thief). ƒ holds article in trust as bailee (so Ø can get it unreasonably impair value of property. Must therefore make reasonable repairs, not states only require 30 days notice for termination. AT WILL TENANCY: has no stated
back). Belongs to Ø, but ƒ can keep if SoL expires. SoL runs from when Ø k/sk ƒs I.D. demolish structure, pay all prpty taxes, etc. Powers of Life Tenant: can’t convey a FS or duration and may be terminated at any time by either party. Created by
Mislaid Prpty: Ø voluntarily puts prpty in certain place and then forgets where prpty is any other estate > than the life estate he holds, but may convey interest he does hold or a implication: If T takes possession with Ls permission, with no term stated and no period
(not lost bc it was voluntary). Belongs: Ø of premises where found against everyone other < one. ”. LEASE non‐freehold estate, ‘chattel real’‐ not considered real property. Leases for paying rent defined, =at will. TENANCY AT SUFFERANCE: only happens when T holds over
than true Ø (no SoL). Treasure Trove: coins/currency concealed by owner, elements of given by life tenants generally terminate upon life tenant’s death. Freehold estate: at the end of a valid lease. LL has right of election between 1) evicting the T; & 2)
antiquity. Prpty must be hidden/concealed for such a length of time that the Ø is probably estate that is or may become possessory. POSSIB. OF REVERTER: GOR of FSD holding him to another term as T (which would create a periodic Tenancy, and length of
dead/undiscoverable. Belongs: ƒ against all but true owner.BONA FIDE PURCHASERS: The automatically gets POR. POR can be inherited, willed, but some states don’t let inter vivos. period is determined by way rent was computed under the lease which terminated.
problem with a BFP arises when one who buys for value and without knowledge that the $$ RIGHT OF ENTRY: GOR of FSSCS gets RoE. Commonly: [FSA conveys a FSSCS and gets TENANT’S RIGHT OF POSSESSION AND ENJOYMENT: Cts split whether L impliedly warrants to T
has no title. Rule: A $$ cant convey better title than which he holds, Excpt’ns: Stolen: $$ RoE.] A GOR who holds a RoE also holds a reversion (see below) at the end of lease term. that he will deliver actual possession at the start of lease term—Arises when past T is
cant convey good title, so Ø may recover from BFP. Title is Void. Excp’n: Fraud: BFP may Alienability: if RoE is incident to a reversion, it passes w/ the reversion [so, if LL sells land, holdover. “American”: LL has a duty to deliver only legal possession, not actual possession.
be protected. A BFP of a chattel by fraud has voidable title. [If A=Ø, B=fraud; C=ß, A can new Ø gets RoE incident to reversion]. REVERSION; holder of a vested estate transfers to “English” (majority): LL must deliver actual possession. T has right to terminate lease &
get back from B but not C.] Excp’n: Estoppel: If thief is a merchant of goods the same another an estate of shorter duration Ex. A holds FSA in blackacre, he conveys “to B for recover damages for the breach if the prior tenant holds over and L does not oust him. T
type the stolen property is, A cant recover from C if C=BFP, eventhough title would be life.” A keeps a reversion, which will become possessory in A (or his heirs) upon Bs death. may also continue lease & get damages for the period until prior T is removed. QUIET
“void.” BAILMENTS: rightful P’ssn of goods by one who is not their true Ø. Elements: 1) Distinguished from POR: If GOR has given away a FSD, he retains only a POR. If he has ENJOYMENT: violated by 1) claims of Paramount Title; and 2) by acts of L, or persons
Deliveryfrom bailor to bailee, with expectation that it will be returned on demand in the given away something less than a FS, he retains a Reversion. Reversions are completely claiming under him, which interferes with Ts P’ssn or use of Prpty. Paramount title: L,
same condition with which it was delivered (strict liability for misdelivery for contractual alienable. They may pass by will, intestacy or inter vivos.) REMAINDER: future interest by lease, impliedly warrants that he has legal power to give P’ssn to T for term of lease. If
bailments. 2) Sole Custody‐ (burden on Bailee to show lack of negligence) 3) Control. created in someone other than grantor which can become possessory upon natural party succeeds in claiming ⊥to the prprty which is superior to Ts claim under the lease (a
Duty during custody: While bailee (holder) has the object in his P’ssn, he is liable only termination prior possessory interest created by same instrument (to A for 10 years, then claim of paramount ⊥), L has breached the Warranty. If T discovers the paramount title
for lack of care, but standard depends on who benefits. Mutual Benefit: bailee must use to B). 3 Requirements: 1) GOR must convey a present possessory estate to one before he takes P’ssn, he may terminate the lease. Once T takes P’ssn, he may Not
ordinary diligence. Only benefit Bailor: bailee only liable for gross N. Only benefit Transforee; 2) GOR must create a nonpossessory estate in another transforee by terminated lease merely on grounds that a 3rd person holds a paramount title. But if 3rd
Bailee: bailee must use extraordinary care. Only liable if some degree of fault. same instrument; 3) 2nd, non possessory estate remainder) must be capable of party asserts his paramount title & T is evicted, T may terminate lease and recover
Contractual limitations: bailee cant relieve himself from liability for gross N. becoming possessory only on the natural expiration of prior estate. no remainder after FS. damages. Interference by LL or 3rd person: if LL or someone claiming under LL, interferes
Acceptance: Bailor must know of terms & accept terms. Involuntary / Constructive; Ex. “Ø conveys to A for life, remainder to B and his heirs” (B has remainder). Following a with Ts use of premises, this is a breach of Quiet Enjoyment. Conduct by Other
bailment starts when property is lost, if never found it is when the D should have noticed Term of Years: an estate following term of years=remainder. Ø conveys “to A for 10 yrs, Tenants: if other Ts make the premises uninhabitable for T, traditional view is that L is not
lost Prop and acted as a bailee GIFTS: A present Tx of property by 1 person to another then to B and his heirs” (B has remainder, even though wouldn’t be at common law).Rule responsible (unless they use their portion for immoral or lewd purposes, or conduct is in
w/out CNS. Generally not revocable. 1) Donative Intent: DOR must intend to make gift. Against Perpetuities (RAP): Prevents a person from determining the lineage of his common areas). Modern view is to impute the acts of other Ts to LL where there acts are
Intent must be present Tx, not Tx effective in future; Present Gift of Future Enjoymnt: if property. Most an Ø can decide is life +21 yrs. Contingent (unascertained persons) subject in violation of the other leases and LL could have prevented the conduct by eviction.
present gift of right, even though enjoyment later∴ok. 2) Delivery (evidence of intent, to RAP, but vested are not RESTRAINTS ON ALIENATION: A Restraint on the alienation of a FS Actual evictionLL deprives T of possession of part or all of premises. (Even 1% will not be
must be as perfect as nature of property/circumstances will permit. IE, Physical Delivery, is generally void. Life Estate may be subject to RoA. USE RESTRICTIONS are generally de minimis if it is important)‐ Partial eviction‐> All rent suspended/abated until eviction is
Symbolic Delivery (instrument divests owner of dominion/control—deed), Constructive upheld. Defeasible Estates (ex. FSD) are generally upheld. CONCURRENT OWNERSHIP: 3 fixed. CONSTRUCTIVE EVICTION: It is a Δ. if use or enjoyment is substantially impaired (ex.
Deliverymeans to obtain gift (key); 3) Acceptance (assumed for items of value). Inter types: JOINT TENANCY: two or more people own a single, unified interest in real or personal Excessive noise, odors) eviction is constructive. 1) Breach of lease covenant. 2) T must
vivos take effect presently and irrevocably. Causa Mortismade in apprehension of death property. Survivorship: Each JT has RoSp (if A & B own in JT, and A dies, B becomes sole vacate in reasonable time. 3) Breach is of grave and permanent character (health code
from an existing peril/illness. Take effect presently, but revocable by 1) DOR’s express Ø). Not inheritable, equal shares, Unilateral severance. 4 Unities 1) Time 2) Title (JT’s violations). If still ‘enjoying’ premises, owe rent.. CONDEMNATION: Gov’t uses its right of
revocation 2)recovery from peril 3)outliving DEE (Stricter delivery— disfavored wills). must get interest at same time from same instrument) 3) Interest (equal shares‐ increase Eminent Domain to condemn all or part of the leased premises, T may have a remedy. If
Acquiescence in retention of possession‐ may prevent DOR from revoking causa mortis proportionally at death). 4) Possession: Each JT is entitled to occupy the entire premises, Govt does total taking, Lease terminates & T does not have to pay rent. If partial taking
gift. Replevin/Detinue‐ CL action to recover wrongfully taken pers. prpty. Conditional subject to same rights as other tenants. To Create: “To A and B as joint tenants w/ RoSP” (any portion) at common law, lease is not Terminated. T must continue paying full rent
Gifts: Fault rule (look who broke engagement, give it to other) No Fault (returns to donor), At common law, A (Ø of FSA) cant create JT btw himself and another by conveying “To A (but gets a condemnat’n award which LL gets from the gov’t). Modern trend is that T can
Montana‐ is donee’s ADVERSE POSESSION(AP): Like SoL for ƒ, SoL will eventually bar Ø of and B as JT”‐need a straw man. But in many states, this is permitted by statute or case terminate if the condemnat’n significantly interferes with his use and to give him reduced
property from recovering P’ssn (ejectment). Once SoL passes, wrongful P gets ⊥to land by law. Severance normally results in TiC. Ways to sever: Conveyance by one JT: A JT may rent even for small interference. Illegality: if T wants to use prpty for illegal purposes, and
AP. Encourages efficient use of land 4 Reqirmnts of AP: 1) Actual or Exclusive (keep convey his interest to a third party. This destroys JT. Ex. A & B are JT. A conveys interest to L knows, ct will probably treat lease as unenforceable. PERMIT: If T must get a permit for
public off, especially real LO) 2) Open and notorious: fly flag, treat land as own against C, destroying JT. B and C are now TiC. 3+ JTs: if 3 or more JTs, a conveyance by one of intended use, but cant, lease remains valid. Condition of the Premises. Common
rest of world. P use of property must be similar to that which a typical Ø of similar propery them to stranger will produce a TiC between stranger and original JTs, but the JT will Law: Caveat emptor‐ T takes premises ‘as is’, LL has no duty to repair‐ except short term
would make 3) Hostile (without Ø’s consent) Good faith: some cts must have BF belief continue as between original members. Mortgages; title theory state‐ Yes severance, lien leases, building under construction, when LL fraudulently misrepresents condition of
that he has title. Mistake/Bad faith: doesn’t matter b/c policy promote efficient use of land. theory state: No. Intermediate: mortgage = conveyance upon default Murder‐ Slayer’s property. Waste: classic view: Voluntary: tenant makes changes in building to suit taste,
4) Continuous‐ must be continuous throughout SoL. [If Ø reenters prpty=interruption of act‐ A deprived of benefit of B’s murder (murder usually severance of JT, A gets 50%, B’s even ↑value is waste. LL’s reversion is for same condition (longer lease/cheaper to return
AP, ∴SoL restarts from scratch / consistent with nature of land (summer home). Tacking: heirs =50%). TENANCY IN COMMON modern presumption‐Shares may be unequal, are to condition ‐>allowing changes) Permissive allow premises to deteriorate (broken
P’ssn of 2 adverse Ø (one after the other) may be “tacked” if the two are in privity (have inheritable, unilateral partition. Each T has right to possess property subject to every other window)‐ Tenant must make reasonable repairsliable for consequential damages. If T
some continuity of interest—sell, gift, inherit, etc.) with each other. Their P’ssn can be T’s right to possession regardless of % ownership. No RoSp between TiC. Upon death, can leaves, can raise Δ of Constructive eviction if terminates lease and shows premises are
added together to meet SoL. But if no privity, tacking is not allowed.[cant tack if 1st P pass interest in will /intestate. Most states favor TiC rather than JT unless Husband and uninhabitable, but must leave premises. Modern implied warranty of Habitability: Vast
abandons and then 2nd P comes onto land]. Excp’n: disabilities/age=extra time needed for Wife. Intestacy Statutes create TiC if no will available. TENANCY BY THE ENTIRETY: majority of states: If LL leases residential premises to T, implies that premises are in at
SoL. Tacking on Ø’s side: if Ø owns in 1950. A enters. Ø conveys to X in 1960. A will get conveyance to 2 persons who were H&W automatically results in TbtE. Many states least good enough condition to be lived in. If LL breaches warranty, T may withhold rent &
land in 1971 (under 21 yr SoL) even though only 11 yrs against X). Rights of AP: when abolished this, but there is a rebuttable presumption that conveyance to H&W=TbtE. No use withheld rent to make repairs himself. Some cts hold that if T k/sk of defect before
AP, P gets ⊥. But cant ® b/c has no deed. But can get Judicial determination of AP which Unilateral Severance, so as long as both are alive and remain H&W, neither can moves in, he waives the defect and the IWH not apply. Standard to determining
can be recorded as if it were deed. ß Need to inspect: b/c ⊥of AP cant be ®, ß cant be unilaterally break the tenancy. Rights of creditors TE indivisible, creditor can’t get at Habitability: building code violation is at least evidence of IWH breach, but most courts
sure “Ø” actually still owns the prpty ∴ ß needs to physically inspect prpty. AP gets ⊥ only property (debt created time of accident)‐ creditor wants both spouses to sign onto debt. need proof of violation + a substantial threat to Ts health or safety. If threat to health or
to portion of property actually occupied. Excp’n: Constructive AP: if P enters under Partition must be agreed on bilaterally. Partition in kind‐ physical partition by owners, safety, don’t need violation. Some courts hold that age of building and amt of rent charged
color of title that is invalid for some reason, P will gain ⊥to entire area described in the universally favored unless prejudice results (each share worth less than %whole). may be considered to determine breach. IWH applies to Residential, but not always
doc, even if he actually possesses only a portion. If there is a conflict between 2 person’s Partition by sale‐ owners keep % of cash proceeds. Oweltydifference paid to another to commercial leases. A waiver of IWH is not effective (but can make separate writing, with
whose interests are solely possessory, general rule=1st P has priority. Good Faith equalize partition. Divorce: If the parties are divorced, the TbtE ends. Parties than treated separate CNS like lower rent that T will make repairs himself. Remedies for breach of
Improver: If AP erects a fixture on prpty: ©L: harsh against AP. Ø has right to force AP to as TiC. RELATIONS BETWEEN COTENANTS: Each cotenant, regardless of type of co‐tenancy, IWH: 1) T terminates lease & vacates premises; 2) withhold rent, but may have to deposit
remove (injunctive relief). Modern: Compromise doctrine (he who seeks equity must do has the right to occupy the entire premises, subject only to a similar right in the other co‐ in escrow to show good faith; 3) Use rent for repairs. T must notify LL of intent to make
equity) a good faith improver can get relief. Whoever keeps pays (AP would pay for land, Ø tenants. (parties may make an agreement to the contrary). If property solely occupied by 1 repairs & deduct). Retalitory eviction is Barred. DESTRUCTION OF PREMISES: If premises
would pay for building. (chattelimprove greater than P, keep it but compensate for value of of the co‐tenants, he normally has no duty to pay rent of any kind to the other non‐ damaged bc of fire, flood, etc. at common law T must keep paying rent and may not
original chattel. Junktruck, identity of property has changed  improver keeps it, but occupying co‐tenant. 2 Excp’ns: 1) Ouster: If occupying tenant refuses to permit the terminate lease. Modern View: if premises uninhabitable bc of above, T may terminate
must pay for junk). Freehold Estates: Heirsthose who take through intestate succession. other tenant equal occupancy, ∴ he ousted other tenant and must account to the ousted lease & stop paying (bc that’s the only remedy he has). Tort Liability of LL and T: While
Escheatsomeone has no will/heirs, P is returned to state. Conveyors‐ those who take cotenant for the latter’s share of the fair rental value of the premises. Occupying tenant T is in P’ssn, he is treated like an Ø in tort liability of those who come on premises. Must
through inter vivos. Classnamed group of takers (my ‘children’ are the class). Present will have a duty to account if he depletes the land. If one Tenant makes payments on warn of known dangers depending on class of guest. LL is generally not liable for physical
(possessory) estate: right of present possession. Future interest: right to possession behalf of the property (mortgage payments, property tax, etc) that tenant does not have injury to T or Ts guests. Excpt’ns: Concealment: LL liable if he conceals, fails to disclose
at a future time. Seisin: combines notion of ownership of property w/right to possession‐ an automatic right to collect the share form other tenant. BUT the paying tenant may a dangerous condition he k/sk. LL has no duty of inspection to find hidden defects. If LL
can never be a GAP in seisin. FEE SIMPLE ABSOLUTE (FSA): Best estate ‐ absolute largest deduct the payments from rents he collects from 3rd parties, or will be reimbursed for the tells T about danger, LL not liable to Ts social guests. LL has duty of reasonable care to
estate permitted by law. Ø interest in real estate (fee) of infinite duration (simple) w/ no payments before any proceeds from a sale are distributed. Any JT or TiC may bring keep common areas safe & to use reasonable care to prevent unauthorized access to
building. If LL attempts to make a repair, he is liable if repair is done negligently or makes to A for the Tx of B’s ezmnt across A’s land to B’s friend C). TERMINATION OF EZMNT. Tx by improvements, or changes position in reliance = $$ to convey. ß must show his part perf.
more unsafe. If LL does no make worse or lull T into sense of safety, cts are split whether L abandonment need clear & unequivocal. Ezmnt holder’s words alone are insufficient to = was clearly in response to oral K. In suit for damages: Time stated in K is of the essence. If
liable. If clause in lease gives LL duty to repair, he is liable to T or Ts guests. L must keep abandonment. Intent + conduct: if holder intends to abandon and actions manifest that parties $$ refuses to close on date specified in K, ß may sue for damages for delay. In suit
building according to building codes. LL liable if breaches to IWH causes injury to T or Ts intent, will be held to have abandoned and ezmnt will be extinguished (such as non‐use in equity: may obtain specific performance even though he is unable to close on specific
guest If T holds prpty open to public, LL has duty to inspect and liable for harm to public. may manifest intent to abandon). LICENSE: right to use another’s land that is revocable at day (so long as he can perform within a reasonable time after the scheduled day).
Some cts just require T to show L didn’t use reasonable care. Most states do not allow will of licensor. No SoF, so can be created orally. [Tickets to sports event and parking lot MARKETABLE ⊥: ⊥free from reasonable doubt about whether the $$ can convey the rights
exculpatory clauses (relieving LL of N). T’S DUTIES: pay rent. If L materially breaches use are license and can be revoked.] Excpt’ns to revocability: License is irrevocable if he purports to convey. Must be free from reasonable doubt that the ß can sell in the
implied/express obligations, T is temporarily relieved of duty. T has duty to make minor would have been ezmnt except for SoF and licensee makes substantial expenditures on future. Implied in every K. DEFECTS MAKING ⊥UNMARKETABLE: 1) Record chain: anything
repairs under common law. But under modern, LL has duty b/c IWH. FIXTURES: an item of land in reliance on the licensor’s promise that the license will be permanent or of long in the prior chain of title indicating that the vendor does not have the full interest which he
Personal prpty which is attached to the land. Right to Affix: T can attach fixtures if this duration. COVENANTS RUNNING WITH THE LAND: a K btw. 2 parties that b/c meets addit’l purports to convey, may be a defect. 2) Encumbrances: Even if the vendor has valid title
would not damage value of LL’s reversion. T may Remove a fixture installed by him if requirmnts, is binding against one who later buys the POR’s land, and/or enforceable by to the property, an encumbrance on the property will normally constitute a defect.
removal will not damage LL’s interest (T must normally restore area to the way it was one who later buys PEE’s land. Covenant is subject to legal rather than equitable relief (so Mortgage or lien: outstanding mortgage = encumbrance making ⊥unmarketable (but $$
before fixture attached). T has implied duty to behave reasonably. LL’s remedies: money damages are good). Covenant running w/land must meet SoF. Q? when do they run who is under mortgage has right to pay off mortgage at closing out of sale proceeds). Liens
Security deposit: LL may be required to pay interest on security deposit. L must return w/land? Personal: only enforceable between original covenanting parties. Real are defects leaving ⊥unmarketable. An ezmnt = defect if it reduces the full enjoyment of
deposit to T after subtracting damages if lease terminates. If T breaches and LL relets, LL (restrictive) Covenant enforceable upon land; runs with the land (benefits land): some cts. the premises. Use restrictions (private covenant whose burden runs w/land, to the effect
must return deposit to T (‐) damages. If a ß buys L’s interest, ß must account for deposit at allow oral covenants, some cts view as interest in land and ∴ need writing (for SoF): that only res. structures will be built) may =defect. Most courts treat build’g code
end of lease. Acceleration clause: found in lease. If T breaches, L may require that all of Restrictive Covenant, different from FSD, because no PoR, can only get injunction and/or violations ‡ encumbrance on ⊥, but violation of Zoning ordanence = encumbrance.
the rent for rest of lease be paid @ once. Enforceable, but cant demand possession of damages. ENFORCEMENT V. SUBSEQUENT PURCHASERS: K law governs relationship btw. Agreement: In K of sale (normally) parties may agree that certain defects will not
premises if T breaches but wishes to stay. EVICTION: lease gives LL right to terminate lease original parties to real covenant: in order to enforce against subsequent parties, must: 1) constitute unmarketable ⊥. Ex. ß and $$ agree that particular ezmnt held by X across the
if T fails to pay rent or otherwise materially breaches. LL cant change locks—can get Covenant was enforceable (Reasonable: part of original plan or scheme—not arbitrarily, ß prpty will not render ⊥ unmarketable. ß on notice of defect: buyer may be held to be on
summary proceedings (speedy trial of Ls right to immediate possession and limit the Δs T had notice, doesn’t violate public policy); 2) Original parties intended covenant to run w/ notice of certain defects, and ∴ held to have implicitly agreed to take subject to them. $$
may assert). If T holds over, LL entitled to damages as well as eviction. If T ABANDONS, LL the land (have covenant actually SAY assigns, heirs, successors, or runs with land), burden title is not required to be marketable until the date set for the closing (ß cant disaffirm K
has 3 choices: 1) Accept surrender: has effect of terminating and no other rent is due. 2) of promise will not run w/ land if held in gross, because covenants on property held in until date of closing based on unmarketability). Remedies for failure to perform a land sale
Relet on Ts behalf: LL must notify T. 2 advantages: a) T remains liable for rent due if no gross restrict land without benefiting anyone; Excpt’n: developer builds adjacent K: 1) suit for damages (difference between the FMV and K price—benefit of bargain rule);
new T is found; b) if new T pays less rent, T is liable for difference. 3) Leave vacant: cts developments that are uniform but sells them all (better practice: if you are developer, or 2) Specific Perf: order to convey property/buy property. Deposit: if ß is unable to close
are split: traditional: LL has no duty to mitigate; modern: LL has duty to mitigate & if make dominant estate like pool club house so it will not be in gross, it would benefit on specific date, cts will not allow him to recover his deposit. Equitable conversion:
doesn’t, T is off the hook. Distress (distraint)‐ common law = LL may take tenant’s dominant estate); 3) Touch and Concern: Covenant directly relates to land, not merely courts treat signing the K as vesting in the ß equitable ownership of land ($$ becomes
possessions and sell them to pay back rent if provided in lease, Modern = LL can take collateral matter of personal nature. Physical effect not necessary, but must affect 1 equitable owner of the purchase price). Risk of Loss: b/c ß gets equitable ownership of
possessions only to hold as security TX AND SALE BY LOR; ASSIGNMENT AND SUBLETTING BY party’s legal rights as landØs, payment of money sufficient—ie. homeowner’s fees); 4) land as soon as K is signed, Risk of Loss immediately shifts to him (true even if the ß never
LEE. ASSIGNMENT V. SUBLEASE. ASSGNMNT: Tx of full interest (L can go after T1 or T2 for Horizontal Privity: (party seeking enforcement must show some “conection of interest” takes possession prior to casualty; hurricane after sign K but before possession ∴ sucks).
rent, unless L/T2 agree to release T1; T1 can get rent from T2 if L goes after T1): T2 bound between original covenanting parties—such as conveyance between ß and $$, ie. land Tx Excpt’ns: 1) $$ bears any loss resulting from own negligence; and 2) $$ bears loss if at the
by Promises that run with land (promises run if T&C‐directly relates to land, not collateral btw A & B); 5) Vertical Privity: (Burden side only)—D must succeed to entirety B’s estate; time it occurred, he could not have coveyed marketable title (so if ß signs K before closing
matter of personal nature‐ most things T&C); T2 bound by other promises if agrees (full 6) Notice: If D=no notice=BFP ∴not held to covenant (that’s why we RECORD deeds/plats when mortgage still out ∴ $$ is liable). MORTGAGES AND INSTALLMENT KS: MORTGAGE:
assumption) LL can only get rent from AEE while in P’ssn unless agreed otherwise. for constructive notice). Affirmative: must pay condo fee; Negative: no commercial financing arrangement, in which a ß or Ø receives a loan, and prpty is pledged as security
SUBLEASE: TX LESS THAN FULL INTEREST; (L cant get T2); T2 not bound by promises unless activity. Termination: If original purpose of covenant cant be accomplished, and to guarantee repayment of loan. 2 docs associated w/ every mortgage: 1) note: ß/Ø’s
agree w/ T1. CONSENT TO ALIENATION: not required unless a clause, if clause majority rule: substantial benefit will not come to the entire restricted area (parcel ABC) by enforcement, personal promise to make repayments. If default & foreclosure and proceeds ‡ outstanding
L must be reasonable in denying consent; Clause implied if LL gets % of profits or T has covenants no longer stand if subject property (A) has greater value when used for other debt, note = basis for deficiency judgement against borrower (MOR) for balance; 2)
special skill trait. TX BY LL: Notice requir’d by statute to inform of new LL. EASEMENTS AND purposes. Zoning Ordinances: follow stricter of two (zoning ordinances and restrictive Mortgage itself is doc which gives Lender (MEE) the right to have prpty sold to repay loan
PROMISES CONCERNING LAND: EZMNT=a privilege to use the land of another, covenants) Uniformity‐ developer may prevent deviations from master plans, but he if borrower defaults. Mortgage gives MEE an interest in land, Mortgage must be ®. Sale of
nonpossessory right. AFFRIMATIVE EZMNT: entitling the holder to do a physical act on must exercise reasonably not to destroy master plan, developer can deviate from plan on Mortgaged Property: When mortgaged prpty is sold, usually mortgage is paid off at the
another’s land (ex. A gives B right of way so B can pass from own property to a street. B lots it owns if they are rerasonable. Green Belt: separates lots (those subject to from those closing. But prpty can be sold w/out paying the mortgage by: 1) having ß take “subject to”
holds affirmative ezmnt). NEGATIVE EZMNT: enables the holder to prevent the Ø of land not subject to restrictive covenant) so don’t look like they are part of neighborhood. the mortgage, or 2) having ß “assume” the mortgage. Subject to: if ß takes “subject to”
from making certain uses of land. These are rare. (ex. A owns X, which is next to ocean; B EQUITABLE SERVITUDES (NO PRIVITY, GENERALLY NEGATIVE, RECIPROCAL NEGATIVE EASEMENT, the mortgage, ß is not personally liable for payment of the mortgage debt. MEE can
owns Y, which is separated from ocean by X. A gives B ezmnt of light & air, which prevents CAN ONLY GET INJUNCTION): You cant put a gas station on your property so I cant put one on foreclose on prpty if ß doesn’t make payments, but MEE may not sue ß for any balance still
A from building anything on X to inhibit view of ocean. B holds negative ezmnt). my property. (reciprocal negative easement). Don’t need horiz/vert privity. Remedy = remaining on loan after foreclosure. (MEE cant get deficiency judgment against ß, but can
APPURTENANT VS. IN GROSS: APTNT: one that benefits its holder in the use of a certain injunction. ZONING & PUBLIC LAND USE CONTROLS: Government may take private property go after original MOR ($$). Assumption: If ß assumes payment of mortgage, he is liable
piece of land. BENEFITTED LAND = dominant tenement. BURDENED LAND=servient for public use, but must compensate. Land use control will not normally equal taking. But if both to the original MOR and the MEE for repayment of the mortgage loan. Thus, MEE can
tenement. For easement to be APTNT, benefit must be immediately tied to particular piece reg. drastically interferes with use of land, it may be an implicit taking. If state regulates in get a deficiency judgment against the assuming ß. Foreclosure: process by which the
of land (dominant estate). IN GROSS: benefit not tied to any particular piece of land. (Ex. Ø line with police power, no compensation is needed. (ex. Zoning regs, protection, etc. ‡ MEE may reach the land to satisfy the Mortgage debt, if MOR defaults. Judicial Foreclosure:
gives B the right to come onto Øs land anytime to use pool. b/c right not given b/c of B’s taking) But if reg goes too far, it will be a taking. Principles: State reg ‡taking if it MEE initiate law suit and actual sale is under supervsion of sheriff. Private foreclosure sale:
ownership of land, the easement is in gross). PROFIT A PRENDRE: right to go onto the land substantially advances legit. state interests. Must be tight fit btw. interest & reg. If reg Some states allow MOR to use a doc called “deed of trust” (DoT) rather than a mortgage.
of another and remove soil or product of it (ex. Mine minerals, drill oil, fish, etc). Treated as deprives owner of all economic viable use = taking. If reg drasticly reduces value of DoT allows the MEE (or 3rd person) to hold prpty as trustee and to sell it in private sale if
same as Ezmnt. WAYS TO CREATE EZMNTS: 1) EXPRESS CONDITION: if created by deed or will. owner’s prpty (diminuation of value)=taking. If use being prevented is noxious/harmful ‡ MOR defaults. Private sale must be held in commercially reasonable manner to get the
SoF: xpress ezment must be in writing. EZMNT BY RESERVATION: when sells land, reserves taking. INVERSE CONDEMNATION SUIT: if reg so broad, reg will be struck down but can get highest price possible. If commercially reasonablel can get deficiency judgment, but if not,
easement for himself. If Ø owns 2 parcels, can create easement in sale of 1 to benefit damages for temporary taking while red in effect. Zoning: Use Zoning: divided into cant get DJ. Installment K: ß makes down payment, and pays rest of the price in (usually)
parcel 2 in deed, even if sale of 1 does not mention easement. Grant; A conveys interest districts; Density Zoning: controls density of population /construction (min. lot size, min. monthly installments. ß does not receive deed until after he has paid off all (some cts hold
in easement to B (transferee gets it). CREATION BY IMPLICATION: 2)PRIOR USE: does not setback, height limits). If zone deprives owner of all viable use of land = taking. Procedural substantial portion) of the purchase price. Forfeiture in Installment K: If installment ß
have to be recor’d. 3 Reqrm’nts: a) land must be divided up, so that the Ø of a parcel is Due Process: if zoning is administrative (granting a variance or special use permit) entitled defaults, $$ does not need to go through complex foreclosure proceedings—he can just
either selling part and retaining part, or selling both parts; b) the use for which the implied to hearing. Substantive: if reg fails to have rational relation to permissible state objective, exercise his K right to declare K forfeited (so $$ can theoretically get whatever has been
ezmnt is claimed must have existed prior to severance; and c) ezment must at least be no good. Requirements for Variance: 1) denial would result in unnecessary hardship to aid on account). Most modern cts. hold that if ß has paid substantial portion of purchase
reasonably necessary to enjoyment of dominant tenement. In most states, easement of Ø; 2) need for variance is caused by problem unique to Øs lot; 3) not inconsistent with price, and $$ would be unjustly enriched by a complete forfeiture, ordinary foreclosure
light and air cant be created by implication. 3) EZMENT BY NECESSITY: if 2 parcels are so purpose of ordinance. Exclusionary zoning: use of law to exclude certain types of proceedings (applicable to mortgages) must be used. DEEDS: Doc. that passes ⊥from GOR
situated that an ezmnt over one is strictly necessary for the enjoyment of the other. persons and uses. May violate equal protection (cant have high min‐acreage requrmnt,). to GEE. Merger: most obligations imposed by the K of sale are discharged unless they are
Require: a) Common grantor: at one time, both dominant and serviant tenement were May be attacked on fair hosing act (need to show discrimin. effect). Mt. Laurel Case: NJ repeated in deed. (ex. K calls of warranty deed. ß carelessly accepts a quitclaim. ß will not
owned by same person. b) no prior use: there does not need to have been prior use b4 says town must allow its fair share of region’s demand for lowincome housing. Affirmative be able to sue $$ on contractual provision if ⊥turns out to be defective b/c contractual
parcels split up. Most common example is when a percel is landlocked. 4) EZMENT BY measures must be taken by a town to cause such houses to be built. Subdivision provisions are extinguished and replaced by whatever provisions are contained in the
PRESCRIPTION: gained under principles of adverse possession. If A uses Bs land for > than regulation: regulate process of subdivision (dividing 1 parcel into smaller ones). deed, under merger). Two types of deeds: 1) QUITCLAIM: GOR makes no covenant that his
SoL governing ejectment, he gains ezmnt by prescription. a) adverse: not w/ Øs Moratoriums upheld if will achieve important local goal. HISTORICAL AND ENVIRONMENTAL ⊥is good (he merely passes onto the GEE whatever ⊥he in fact has). 2) WARRANTY: GOR
permission; b) continuous: infrequent use is no good; c) open & notorious; d) actual; PRESERVATION: prohibit the Ø from altering or demolishing the building w/out special permit. makes one or more promises about the state of the ⊥. DEED MUST DESCRIBE PROPERTY:
tacking on dominant side of ezment is good. Scope of use is determined by looking @ use Generally Upheld, so long as: 1) gives reasonably precise stanards so it is not arbitrarily three main ways to describe land in a deed: 1) Metes and Bounds: establishing a starting
that took place during SoL period. If broad‡good. 5) EZMENT BY ESTOPPEL: when A allows B enforced; 2) does not violate 5th A. Best chance to challenge preservation scheme is to point (usually based on a visible landmark) then a series of calls and distances, each
to use A’s land under circumstance where A k/sk that B will substantially change position show deprivation of economic use. Penn Central case: can prevent altering but allowing Ø representing a line going in a certain direction for a certain distance; 2) Government
believing that permis’n wont be revoked, and B does change position (builds house, relying to continue present use is not a taking. TRANSFERABLE DEVELOPMNT RIGHTS (TDR) given to survey: land divided into 6 mi‐townships”36 1‐mi sections” 640 acres, each of which can
on use of A’s land to get to road), ezmnt occurs although no permis’n expressly granted. Ø: may Tx his development rights from preserved building to other nearby parcels. Will be directly referred to; 3) Plat: relies on the recording of a map or “plat” of property by a
SCOPE OF EZMNT. DEVELOP’NT OF DOMINANT ESTATE: ct will allow a use that increases due to ease an otherwise taking. Environmental Protection: regs that attempt to maintain open developer, in which the plat shows the location of individual lots. Cts tend to interpret the
the normal, foreseeable development of the dominant estate, so long as it does not areas by limiting or prohibiting certain types of development. (Urban park land—likely a deed most favorable to GEE (b/c GOR drafted the deed). Deeds must be signed by GOR (&
impose an unreasonable burden on the servient estate (walkway ezmnt that benefits 3 taking, but ok if allow TDR). Eminent Domain: power to take private property for public GEE if ezmnts). Most states required deed to be notarized/witnessed. Must be DELIVERED
houses instead of 1 will be ok). User of dominant estate is normally not allowed to extend use. Don’t through condemnation. (Ø can bring inverse condemnation action—saying (look at intent of GOR to make the deed presently operative to vest ⊥in GEE). Not
his use of the ezmnt so that additional prpty owned by him is benefitted. (if ezmnt A is for taking occurred & he must be paid). Requirements for Eminent Domain power: 1) revocable: if delivery, ⊥passes immediately to GEE so cant revoke by giving deed back to
parcel X, and Ø of ezmnt buys Y, cant use A to get to Y). SERVIENT Ø’S RIGHT TO RELOCATE Prpty must be put to a public use (rationally related to conceivable publc purpose‐losely GOR (a new conveyence must take place). COVENANTS FOR ⊥IN WARRANTY DEED: GOR
EZMNT: common law: ezmnt is fixed (no relocate no matter what) Modern: servient Ø may interpreted); 2) just compensation must be paid (highest and best use the property could makes various promises about state of his Øship: 1) SEISIN AND CONVEYENCE (present): GOR
relocate ezmnt if it doesn’t materially inconvenience dominant Ø. TRANSFER AND be put to under zoning regs). Urban Renewal: city may condemn private land, turn it to has indefesaeble estate in the quality and quantity which he purports to convey (breached
SUBDIVISION OF EZMNT: when ⊥to servient estate is Tx, burden ezmnt remains with the private developer for private use.LAND SALE KS, MORTGAGES AND DEEDS: SoF: the K must if GOR purports to give FSA but actually only Øed and conveyed FSSCS) 2) AGAINST
prpty. (Ø of ezmnt is valid against prpty owned by new Ø). Tx of benefit: if benefit runs be in writing: 1) names of the parties; 2) discription of land to be conveyed; 3) Purchase ENCUMBRANCES (present): no encumbrances against the prpty (mortgages, leins , ezmnts,
w/land depends on whether ezmnt is aptnt or in gross. Tx of ezmnt aptnt (one that benefits Price; 4) signiture of party being charged. Part performance excpt’n: a party who has taken use restrictions). Present covenants are breached, if at all, the moment the conveyence is
particular land only) will normally pass w/Tx of the dominant estate. Subdivide dom estate action in reliance on the K may be able to gain at least limited enforcement. Acts by $$: $ made (so breach can occur even if no eviction—just have to show deed was defective on
is ok so long as doesn’t increase burden too much. Ezmnt in gross (one that benefits $ makes conveyence under K, will then be able to sue for the agreed upon price, even if the date of conveyance). Present covenant does not run with land. 3) QUIET ENJOYMENT &
person): common law: non‐Tx. Modern view: commercial ezmnt in gross (ezmnts used for agreement to pay that price was oral. Acts by ß: Cts are split whether ß’s acts = part WARRANTY (future): continuing K by the GOR
economic purpose) =ok (phone company wires across land, ok even if land Tx). Non‐ performance = specific perf. Pss’n+payment: if ß takes Pss’n & makes payments, $$ will that the GEE is entitled to continued possession of land in future. Future covenants runs
commercial ezmnt in gross: some allow, but look at intent to allow asgnmnt (look for CNS have to convey Prpty. Improvements: ß whotakes Pss’n & makes permanent with land. Breached only if an actual eviction occurs. SoL: statute runs for present when
covenant is made; for future only when eviction occurs. Measure of Damages: GEE’s
recovery limited to purchase price paid. – Seller Liability for condition of premises:
IWH/quality: rep implicit between $$ & ß, imposes on builder a warranty of quality that
house is built in a good, workman like manner. 1) purchased new house from builder 2)
house contained latent defect 3) defect manifested only after purchase 4)defect caused
by builder’s improper design, material, or workmanship 5) defect created substantial
question of safety or made house unfit for human habitation (No merger, quality not title
related). COOPS AND CONDOS: CO‐OPS: building owned by co‐operative corporation. Ø of
individual apt. is really a shareholder in the corp & can vote accor’d to % of share.
Proprietary lease: in which the corp is lessor and shareholder is lessee. Lessee has to pay
portion of building’s mortgage interest and principal and various carrying charges used
to defray the maintenance and operating costs of building. CONDO: Each individual holds
a FS “within the walls” of parcel, but all residents collectively own certain common areas
as TiC. May own land which house is on, but own portion of surrounding lawns, swimming
pool, etc. These are held by condo ass’n. RECORDING STATUTES: found in every Jx; way to
check whether there has been an earlier Tx in the prpty inconsistent with his own. Even if
there has been an earlier Tx, if not ®, the later ß will generally gain priority, so ® acts
give a ß a way to be sure that he is getting good ⊥. ® acts only givern relations’p btw
GEE and a subsequent ß of the same prpty; not btw the GOR and GEE under particular
conveyence. 3 Different types of acts: 1) PURE RACE STATUTES: race to ®s office.
Subsequent ß must ® before the 1 ß, but is protected regardless of whether he has
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notice of the 1st conveyance. 2) PURE NOTICE STATUTE: provides that an un® instrument
is invalid against any subsequent ß w/out notice (BFP), regardless whether the 2nd ß ®s
before 1st ß. 3) RACENOTICE STATUTE: protects 2nd ß only if: 1) he ®s b4 the 1st ß; AND 2)
takes w/out notice of the 1st conveyance. Mechanics: Deposit: The GEE brings deed to ®
office. The ®er stamps the date & time of deposit, and places deed in chronological book
containing all ®ed deeds. Indexing: Deeds are then indexed. Both the GOR index (by
particular GOR) and GEE index (to particular GEE). Every interest by
which an interest in land is created or modified must be ® (fee simples, life estates,
mortgages, restrictive covenants, tax leins). Not usually ®: AP, ezmnt by implication or
necessity, short term leases (<1/3 yr), Ks of sale. Protection: 2nd GEE, must either be: 1)
ß for value; or 2) creditor. ß for value: 2ndGEE gets protection of ® act only if he gives
value for his interest. DEE=not protected if 2nd. Value must be >nominal CNS. Creditor:
land Øs creditors receive protection of ® act. Mortgage: if Creditor receives a mortgage
from land Ø, he is treated as a ßer. Creditor judgment attaches debtor’s prpty and gets a
lien (a lien is not a purchase, so a lien may not be protected against the prior un®ed
deed). The deed must be one that is eligible to be ®ed. Must record whole chain. chain
only as good as weakest link. In all Noticebased
Jx, 2nd ß can be on notice in 3 ways: 1) Actual notice: will not be protected. 2) Record
notice: if prior interest was adequately ®. the first doc. must be ®ed in such away that
a reasonable searcher would find it. A doc. that is not entitled to be ®, even if mistaken
accepted and ®ed will not give ® notice. (a mistake may be “cured” if a certain amont
of time passes. Imputed knowledge: if proper ®ing of 1st doc.‐‐> subsequent ß are on ®
notice, even if they never actually see the filed doc (ct. says he k/sk if proprerly ®).
Chain of ⊥: gives notice only if a 2nd ß would have found the doc using generally
accepted means (GEE/GOR index). If ®ed doc would not be found using this, it is outside
the chain of ⊥and prevents ® notice. 3) Inquiry notice: Even if ß has neither ® notice
nor actual notice, he may have inquiry notice: occurs when ß is in P’ssn of facts which
would lead a reasonable person in his position to make an investigation which would
advise him of the existence of the 1st un® right. Still on notice even if doesn’t actually
investigate. P’ssn: if land is Possessed by a person who is not ®Ø, place subsequent ß on
inquiry
notice. The ß must: 1) view prpty (to see if it is in P’ssn of someone else; and 2) if there
is a P, must inquire as to the source of P’s right in the prpty. ß from one w/out notice: If ß
who takes without notice of a prior un® doc resells the prpty, the new ß is treated as one
who may claim the benefit of the ® act, even if he buys with actual notice. (done to
protect the 1st innocent ß’s market of the prpty.C quiets his title) ⊥
Insurance: Covers matters not shown in ⊥search (protects from bad ⊥b/c of forgery in
the ⊥chain, misrep, etc.) Insurance policies may have excep’tns: exclude facts which an
accurate survey of prpty would disclose (ex. encroachments and violations of set‐back
rules are not covered); AP: so buyer must still inspect prpty. RIGHTS INCIDENT TO LAND:
Land Ø may sue another for PRIVATE NUISANCE: interference with land Ø’s use and
enjoyment of his land. Must show: 1) substantial interference: substantial only if a person
of normal sensitivity would be seriously bothered; 2) Δ’s mental state: show Δ’s conduct
was N, intentional (substantial certainty), or abnormally dangerous. 3) Δ’s actions were
unreasonable: (look at the nature of the neighborhood). Remedies: a) compensatory
damages; b) injunction (Π must show harm to him outweighs the social utitlity of Δ’s
conduct). LATERAL AD SUBJACENT SUPPORT: every Land Ø is entitled to necessary physical
support from adjacent (lateral) and underlying (subjacent) soil. Lateral: absolute right;
once withdrawn and injury occurs, responsible person liable even if used utmost care.
Building: lateral support exists only with respect to land in its natural state. If Ø
constructs a building, and soil under building subsides in part due to adjacent Øs acts,
but also weight of bilding, adjacent owner is not liable unless he is N. SUBJACENT
SUPPORT: Arises only where subsurface rights (ex. mineral rights) are severed from
surface rights. When severence, Ø of surface interest has right not to have surface
damaged by carrying out of the mining. Surface owner has absolute right to support to
all land and structures (so buldings existing on date when severence took place are
protected). Right to Sunlight: Ø has no right to sunlight (almost never gets ezmnt of
light & air). but if one Ø uses sunlight for solar energy, he may have claim against tall
building owner (nuisance) for blocking an energy source