Possession, Ownership, & Title

One can have either a possessory or an ownership interest in property

Possession — a person generally has possession of physical property if she has dominion and control
over the property

 Possession does not necessarily confer ownership

Title — one who has title to property is said to have ownership

 E.g., a residential tenant has possession of an apartment, but the landlord has title
 Title can be spread amongst multiple owners
 Acquisition — usually one obtains title by acquiring it from the prior owner with that owner’s
consent
1. However, title may also be obtained through possession
 E.g., capturing a wild animal, finding a lost item, adverse possession

Subsequent Possession

ACQUISITION BY FIND. RIGHTS OF FINDERS OF PERSONAL PROPERTY

• Finder: A finder is a person who takes possession of lost or unclaimed tangible personal property.
• Depends on who is fighting who. You need to look at this because it can change the
answer.
• Possession: Possession requires
• Intent to control the property and
• An act of control.
• Constructive Possession: when one who had actual possession no longer has it but still intends to
exercise control over it (ex. Owner (“O”) who owns lost goods, not yet found and not abandoned
by O). O still has constructive possession.
• Custody: physical control over object in no way inconsistent with interests of one with superior
rights (a business cell phone provided to an employee by her employer. The employee merely has
custody of the phone).
• Prior Finders/Subsequent Finders: when the first finder loses, but does not abandon the personal
property and a second finder takes possession of the lost personal property, the first finder is
considered the prior finder and the second finder is considered the subsequent finder (see below
for rules as to who prevails in prior finder versus subsequent finder).

1.    Lost property- personal property with which the owner has involuntarily departed with and does not
know where to find it
2.     Abandoned Property- property that the owner throws away or leaves with the specific intent of
permanently giving it up.
-          Depends on what it is and where it is (facts and circumstances).
-          If it is lost property and the owner gives up all intention and effort to find it, it becomes abandoned
property, and the finder then owns the abandoned property
3.      Mislaid Property- that which was intentionally placed/put in a particular place
      and failed to reclaim it.

Wild Animals

Wild animals, a.k.a. “farae naturae,” are generally unowned, but one who gains possession of a wild
animal has rights in that animal superior to others

As a general principle, no one owns wild animals (ferae naturae) in their natural habitat.
• Capture: Title to a wild animal may be acquired through capture.

Possession — can be gained through capture or industry custom

 Trapping or wounding  — one is deemed to have possession if they mortally wound or

trap an animal
1. Animal must be mortally wounded or trapped such that capture is almost
certain; one in the process of trapping an animal has not yet achieved
possession
 Custom — custom or usages in a trade or activity may help determine possession
1. E.g., Ghen v. Rich — Ghen killed a whale; Ellis found it days later and sold it
to Rich; industry custom was that dead whales, which sink initially, were
retrieved from shore after resurfacing; court found for Ghen due to industry
custom
- Mere Pursuit: A person who is merely chasing a wild animal does not have constructive
possession, even if the chaser is in hot pursuit of the animal.

 
 
Wild animals on owned land — a landowner does not own all wild animals on her property

However, one who trespasses to kill wild animals on another’s property forfeits title in
favor of the landowner
 I.e., owner of land on which wild animal is killed has superior rights to the
animal over a trespasser
Case: PIERSON v. POST

Facts:
- Post (plaintiff) was hunting a fox and Pierson (defendant) caught and killed the same fox. Post
brought a trespass suit claiming that he had legal possession of the fox.

Issue: Can a person acquire possessory rights over a wild animal just by chasing it during hunting it?
Professors Issue statement: Whether or not pursuit of a wild animal gives you possessory rights over
someone who just shoots it or captures it?

Rules:
 • 1. Mere Pursuit: A person who is merely chasing a wild animal does not have
constructive possession, even if the chaser is in hot pursuit of the animal.
• Application of Rule 1: Post does not have mere possession of the fox just because
he was in hot pursuit.

Holding: Pursuit alone does not establish property rights over an animal. The person who killed the
animal or wounded it is the person who has rights to it. Judge Tompkins.

Ratione Soli: On account of the soil; with reference to the soil. Said to be the ground of ownership in
bees. 2 Bl. Comm. 393. (THE COURT REJECTS THIS THOERY BUT FOR THIS COURSE WE WILL
FOLLOW IT.)

Rights that Go Along with Ownership of Real Property and Personal Property (Overly Simplified):

These are traditional rights and nowadays these rights are limited.

• By way of overly simplistic introduction, ownership of property is sometimes said to consist of a

“bundle of rights.”
• Among these rights are:
• The right to include (say who can enter, use, and enjoy your land, or use, and enjoy your
personal property).
• The right to exclude (prohibit entry onto your real property or deny use/enjoyment of
your personal property).
• The right to transfer (transferring total or partial ownership to someone else, during life,
or at death).
• The right to destroy your own property
• The right to use/exploit/profit from/enjoy your property as you wish.

ACQUISITION BY FIND. RIGHTS OF FINDERS OF PERSONAL PROPERTY:

• Finder: A finder is a person who takes possession of lost or unclaimed tangible personal
property.
• Possession: Possession requires
• Intent to control the property and
• An act of control.
• Constructive Possession: when one who had actual possession no longer has it but still intends
to exercise control over it (ex. Owner (“O”) who owns lost goods, not yet found and not
abandoned by O). O still has constructive possession.
• Custody: physical control over object in no way inconsistent with interests of one with superior
rights (a business cell phone provided to an employee by her employer. The employee merely has
custody of the phone).
• Prior Finders/Subsequent Finders: when the first finder loses, but does not abandon the
personal property and a second finder takes possession of the lost personal property, the first
finder is considered the prior finder and the second finder is considered the subsequent finder (see
below for rules as to who prevails in prior finder versus subsequent finder).

The doctrine of increase.

• The doctrine of increase provides that “the offspring or increase of tame or domestic animals
belongs to the owner of the dam or mother.
o recognized in every legal system in the world that has addressed the issue. 
KEEBLE v. HICKERINGILL

Plaintiff Keeble – Owned land in which there was a decoy pond he set up.
Defendant: Hickeringhill - fired off guns near Keeble’s pond for purposes of scaring away the wildfowl
that had gathered there.

This is a case is about who has the right to disturb someone else’s business legally done on their own
property.
• This case shows how property law tends to protect ones own business on their own property and
ones business.

Rule of Law: A property owner can legally use his property for profit with no malicious interference of
others.

Issue: Whether a property owner can sue if the use of his property for profit is done by someone else’s
malicious act.

Holding: A property holder can legally use his land for profit without interference from others

Lost Property
If an owner loses or mislays personal property, he still retains title

 But those who find lost or mislaid property hold superior rights in the property to
everyone but the true owner

 
Lost vs. mislaid property:

 Mislaid — owner voluntarily parts with property with the intention of retrieving it later,
but which cannot now be found

1. Owner of place where property was mislaid is entitled to possession and has
superior rights to all except true owner

2. E.g., A leaves jewelry in her mother B’s house and her sister C finds it; A has
superior rights over B and C, but B, as the owner of the house, has superior
rights over C

 Lost — owner accidentally and involuntarily parts with possession and does not know
where to find it

1. E.g., cellphone accidentally left in public bathroom

2. Finder has right to possess and has superior rights to all those except the true
owner
 
Abandoned property — property that owner has voluntarily relinquished without reference to any
person or purpose
  I.e., owner has shown an intent to give up title and possession

 Acquiring title to abandoned property  — finder must show actual or constructive

dominion and control and the intent to assert ownership

Bailment
A bailment is a relationship created when one transfers personal property to another, without
transferring title, for the accomplishment of a certain purpose
 
Transfer of property — bailor transfers possession to bailee

 E.g., A takes shirt to dry cleaners; bailment has been formed, whereby A is bailor and dry
cleaner is bailee

 Express contract not required

 Bailee has exclusive rights to possession during bailment but must not use the property
beyond purposes of the bailment

 
Elements — bailment occurs if:

1. Possession — bailee has custody and intent to control

 Bailee must obtain physical custody with the intent to exercise control

2. Consent — bailee must consent to the bailment

 If custody thrust upon bailee without consent, no bailment

3. Knowledge — bailee must have knowledge of the presence of the article of personal
property

 
Concealed items — bailment does not exist for concealed items inside of an item of personal property
given to a bailee

 E.g., A brings suit to cleaner with a diamond in the pocket and cleaner does not know;
cleaner is not responsible for the diamond

Estate System
The estate system concerns types of real property ownership, encompassing both present and future
possessory interests

 Based on a real property ownership system extending back to feudal times

  Duration of present and future interests may vary depending on the specific wording in a
conveyance

 Two broad types of estates  — freehold and non-freehold

 
Freehold estate — a right of title to land that is indefinite in duration

 Includes fee simple absolute, fee tail, life estate

 The estate system mostly concerns freehold estates

 
Non-freehold estate — a conveyance of a real property interest for a particular time

 Duration specified in the conveyance

 Gives rise to a possessory interest; does not convey ownership

 Includes leasehold-type estates (e.g., term of years, periodic tenancy, tenancy at will)

The labor theory illustrated: the doctrine of accession. 

- The labor theory is illustrated by the common law doctrine of accession. 
o This doctrine comes into play where A in good faith applies labor alone or labor plus
materials to some object that B owns. 
o  If A adds labor alone, the final product is generally awarded to B unless A’s labor
(1) transforms the original item into a fundamentally different article or
(2) greatly increases the value of B’s original item. 
 Example of accession:
- where A innocently uses B’s grapes to make wine. If A is awarded the final product, B is entitled
to damages equal to the value of the original material before transformation. -> Final product is
awarded to A.
- If A adds both labor and other materials to B’s object, the final product is awarded to the owner of
the “principal” material. Just what the “principal” material is often proves difficult to determine.

Mislaid Property
 Mislaid Personal Property: if the owner voluntarily puts it in a certain place with the intent to
reclaim it but then fails to reclaim or forgets where the property was left.
o When property is mislaid  the owner of the locus in quo generally has rights superior over
the finder and all but the true owner.
 If the property is mislaid on public property (a public park) the finder generally has rights superior
over all but the true owner.

Treasure Trove
 Treasure trove encompasses gold, silver, currency or the like that, in the distant past, was
intentionally concealed by an unknown person for safekeeping in a secret location.
 In England  treasure trove belongs to the Crown.
 In the United States  treasure trove belongs to the finder (or possibly to the owner of the locus in
quo if the finder is a trespasser).
 o In Florida there are state laws governing sunken treasure in state waters.
Prior Possessor as a Thief- steal
 Anderson v. Gouldberg: The P’s trespassed upon the timberland of a third party, cut logs, and hauled
them to a mill, where the defendants took them.
o Holding: Ruling for the trespassing plaintiff, the court said that “bare possession of property,
though wrongfully obtained, is sufficient title to enable the party enjoying it to” prevail over
the party who takes it from him.
o Reasoning: “Any other rule would lead to an endless series of unlawful seizures and reprisals
in every case where property had once passed out of the possession of the rightful owner,” the
court reasoned.
o The P won even though he was a trespasser because of the hierarchy of rights to property.
 The presumption of title due to possession can rebut the presumption by showing
superior title.
Bailments
 Bailment: the rightful possession of goods by a person who is not the owner.
 Bailor: the person who delivers the chattel
 Bailee: the person who receives it.
o A bailee has possession but not title to the chattel.
 The creation of a bailment requires that the bailee both:
(1) intend to possess and
(2) actually possess the chattel.
 Voluntary Bailment: occurs when the owner of the goods (the bailor) gives possession to the bailee.
o Example: when you leave your clothes with a laundry or check your coat at a restaurant or
turn over your car keys to a parking lot attendant or deposit mail in the post office.
 The standard of care that a bailee owes to a bailor depends upon who benefits from the bailment.
(1) If the bailor is the sole beneficiary (ex: the bailee is not compensated)  the bailee is a
“gratuitous” bailee, and the bailee is liable only if the property is damaged through his or her
gross negligence.
(2) If the bailment benefits both parties (ex: as in a car rental arrangement)  then the
bailee is liable if the property is damaged as a result of his or her ordinary negligence.
(3) If the relationship benefits only the bailee (ex: the bailee borrows the bailor’s property
without paying for it  then liability results from damage caused by the bailee’s “slight
negligence.”

ARMORY v. DELAMIRIE
Rules of Law

1. The employer who told the employee to take the stone out and weigh it is responsible for the act and
scope of what their employees do.

2. Employee/ employer; Master/ server; Respondeat Superior: An empoyer is not responsible when an
employee does “a frolic of his own” (does something he is not supposed to do).

Facts

Armory (plaintiff), a chimney sweep, found a jewel while doing his job and took the jewel to Delamirie
(defendant), who is a goldsmith, to be appraised. Delamirie’s apprentice took the jewel and refused to
give it back to Armory. Armory sued for the return of the jewel or for its value.
Issue

Does finding an item permit the person who found it to sue them for the return when another party takes it
from him?

Rule of Law: A person who finds a piece of chattel has a possessory property interest in the chattel,
which may be enforced against anyone except the true owner of the chattel.

HYPO: Suppose a few months later, the true owner in the armory case shows up and knocks on
the door of armory, and then sues him for return of the jewel, what happens?
 His title is superior to that of the finder, and he can recover the thing itself or the damages
that the sweep received.
Acquisition by Gift
 There are two types of gifts:
(1) Inter Vivos Gifts: gifts given during the donor’s lifetime while not in anticipation of immediately
impending death.
(2) Gifts Causa Mortis: gifts given in anticipation of immediately impending death from an existing
peril or illness.

INTER VIVOS GIFT: made during a person’s life.

• An inter vivos gift requires:
(1) Present donative intent,
(2) Delivery of the gift itself
 Actual
 Constructive, or
 Symbolic (symbolic is often considered a type of constructive delivery, but our book lists
it separately)
(3) Acceptance (which is presumed).

Understanding of The Elements of Inter Vivos Gift

• Present Donative Intent:
• The donor must have the intent to presently (right now) transfer an interest in the property to
the donee.
• The intent to make a gift in the future is not sufficient.

There are three elements/requirements for a gift:

- Intent:
o The donor must intend to make a present transfer of an existing interest in the property.
That is, the donor must intend to be legally bound now, not in the future. Intent is
commonly a problem in litigated gift cases.

- Delivery:
o to make a gift of personal property, the donor must transfer possession (“hand over the
property”) to the donee with the manifested intention to make a gift to the donee.
o Delivery and intent interact and overlap with each other to a considerable degree, but they
are discrete requirements nevertheless. Both must be present.

- Acceptance:
 o Acceptance by the donee is also required but seldom an issue. Courts presume acceptance
upon delivery, unless a donee expressly refuses a gift. Intention to make a gift may be
shown by oral evidence; delivery requires objective acts.

Delivery: The requirement of transfer of possession

1. Manual delivery: Manual delivery is sometimes called actual delivery. It occurs when the
donor physically transfers possession of the object to the donee. Manual delivery is the primary
method of delivery for most items of tangible personal property.

2. Constructive delivery: Constructive delivery occurs when the donor physically transfers to
the donee the means of access to or control of the gifted object, such as when A gives B the keys
to a car that A intends to give B. Constructive delivery is permitted when manual delivery is
impossible or impracticable.

3. Symbolic delivery: Symbolic delivery occurs when the donor physically transfers to the donee
an object that represents or symbolizes the subject matter of the gift.
This includes a writing. Most jurisdictions recognize symbolic delivery. Traditionally, symbolic
delivery is permitted only if manual delivery is not feasible, but the modern trend is to permit it
even when manual delivery is possible.
• Acceptance: Generally, acceptance is presumed if the property is valuable or beneficial to the donee,
unless the donee refuses the gift.
• Notice, a done can reject (not accept) a gift.
• Once a done accepts a gift, even momentarily, (acceptance can be express, or by exercising
dominion and control), the gift is complete.
• The done cannot later “unaccept.”
• Modern Changes:
• Today  the rules of delivery are being relaxed or changed by statute.
• When you take the bar exam  you need to be aware of the current state of the
law at that time (Bar review materials will provide the then current rules in general,
and the rules for the specific jurisdiction in which you are taking the exam.)
• For purposes of Property, we will use the common law elements stated above (without
modern changes), unless I tell you to the contrary.
• Rule: An inter vivos gift can be revoked by the donor prior to delivery.
• An inter vivos gift is irrevocable by the donor upon delivery. (When delivery is complete.)
• If the donor dies before delivery  there is no gift.
• As to an inter vivos gift  if the donee already has custody of the item when the donor decides to
make a gift of it  there is no need for the donee to return the item to the donor and for the donor to
redeliver the item to the donee.
• Note: the rule is contra for gifts causa mortis.

Delivery to the Donee by a Third Person

 (1) If the third party is controlled by or is the agent of the donor (example: his employee) 
delivery does not take place until the third party “delivers” the subject of the gift to the donee.
 This is because the donor could recall the third party at any time before the third
party delivers to the donee, and the third party would be obligated to follow the
directions of the donor.
 (2) If the third party is an independent person or is under the control of, or an agent of, the
done  then delivery is considered to have occurred when the donor delivers the gift to the
third party.
GIFT CAUSA MORTIS
• Gift causa mortis: is a gift made by a donor in contemplation of the donor’s imminent death from an
existing peril or illness.
• A gift causa mortis requires proof of the traditional elements for an inter vivos gift:
(1) A present donative intent,
(2) Delivery, and
(3) Acceptance
• A gift causa mortis is revocable at any time during her lifetime  the donor may revoke a gift causa
mortis.
• Traditional Rule: A gift causa mortis is revoked automatically by operation of law if the donor does
not die from the particular peril/illness as anticipated by the donor.
• Modern view: If the donor survives without revoking the gift within a reasonable time after the donor
is no longer in apprehension of immediately approaching death  the power to revoke terminates and
the donor can no longer terminate the gift (know traditional and modern views for this class.)
• NOTE: If the prospective donee already has custody of the item at the time that the donor falls under
fear of imminent death and decides to make a gift of the item  the item needs to be returned to the
donor, and delivery from the donor to the donee must take place while the donor is in fear of
imminent death.

• A gift requires:
(1) Present donative intent – Present donative intent is when there is a conscious desire to
make a gift.
• (2) Delivery, for an inter vivos gift, the delivery requirement has been satisfied if, on
discovering possession of an item of personalty in a third person, the owner voluntarily
leaves possession with the third person.
• (3) Acceptance - Acceptance is presumed if the item is valuable or is beneficial to the
donee.

donatio causa mortis: when a person provides a gift to another because they believe that will soon die.
This type of gift, unlike a transfer via will or gift inter vivos, is revocable by the grantor until they do pass
away and may carry differential tax treatment.

- Two things are required for donation causa mortis:

o an intention to make the gift, and
o a delivery of the thing given.

NEWMAN v. BOST

 P: Julia Newman (housekeeper)

 D: F.W. Bost (administrator of Van Pelt’s estate/ relative of van pelts late wife)
Rule of Law: A gift of “all the personal property in the house” is not effectively delivered by handing
over the keys to the rooms of the house.

Adverse Possession
Adverse possession allows a trespasser to acquire title to another’s property without compensation by
possessing the property for a specified period, in a manner conflicting with the true owner’s rights
 
Requirements — trespasser’s possession of the land must be:

1. Continuous for the statutory period — varies by state

 Possession must be similar to an ordinary owner’s use of the property (i.e.,

daily possession not required if an ordinary user would not use the property
daily (e.g., winter cabin))

2. Open and notorious — trespasser’s possession must be conspicuous, such that the true
owner would know of the trespass if he inspected his property regularly

 Owner need not actually know of the trespasser’s use

3. Actual and exclusive — must possess a reasonable portion of the property to the
exclusion of the owner and the public

4. Hostile — possession must be without owner’s permission (Adverse, Hostile, etc. do not
mean animosity as may generate violence. What this element means is that the A/P’or is holding the
property adversely to the interests of the true owner, without permission of the true owner, and not in
subordination to the rights of the true owner.)

 No knowledge or intent requirement (i.e., trespasser need not intend to

adversely possess)

 Leasehold — if a tenant stays in possession after a lease has expired, he is

presumed to have permission (i.e., tenancy at sufferance arises, as opposed to
the beginning of an adverse possession period)
 
The below issues can arise in adverse possession cases
 
Statute of Limitations (SoL)

 Disability — SoL does not begin to run if the true owner was under some disability when
the adverse possession began
1. I.e., owner is a minor, imprisoned, etc.
2. Tacking of disabilities not allowed (see card 56)
 Future interests — SoL does not run against future interest holders until the interest
becomes possessory

 
Restrictive covenants — will not run with the land if the adverse possessor’s use of land violated the
covenant

 But will run if adverse possessor’s use complied with covenant

 
Color of title — title that appears valid but in actuality is ineffective
  An adverse possessor entering land under color of title who possesses part of the property
in good faith may be able to acquire actual title to the entire property
 I.e., one who believes they have title to property but does not may be able to acquire
property through adverse possession

 
Govt. land — cannot be acquired through adverse possession
 
Leasing — adverse possessors can lease part of the land to a third party and still possess the property
for adverse possession purposes
 
Non-marketable title — title taken by adverse possession is not marketable, unless there

FULKERSON v. VAN BUREN

Rule of Law

Under Arkansas law, a person who does not demonstrate a clear, distinct, and unequivocal intention to
hold a property adversely for the length of the statutory period cannot take title by adverse possession.

Adverse Possession: Tacking & Concurrent Owners

Different adverse possessors can tack together successive periods of adverse possession to satisfy
statutory requirements
 
Requirements:

 Must be successive — there cannot be gaps between periods of adverse possession

 Privity required — there must be privity between successive adverse possessors
1. Satisfied if subsequent possessor takes by descent, devise, or deed purporting
to convey title
2. E.g.,, tacking is not permitted if one adverse claimant ousts the preceding
claimant

 HOWARD v. KUNTO - tacking

RULE:

The requisite possession requires such possession and dominion as ordinarily marks the conduct of
owners in general, in holding, managing, and caring for property of like nature and condition.

Parties:
appellant-defendants, Kunto- suing for adverse possession
Howards – requesting title for lot 2 which was rightfully theirs
Tacking and privity of estate

– Tacking (adding up) of the possession periods of consecutive adverse possessors is

permitted to meet the “continuous for the statute of limitations, if and only if there
is privity of estate between the successive possessors. Privity of estate is established
by a voluntary transfer from one possessor to another – by deed, will, descent, or
even an oral transfer (be careful re: oral) from the previous A/P’or. If there is
tacking, it is the A/P’or who holds the property at the time the S/L expires who gets
title. (Remember, that title relates back to when the S/L began to run.)

Implied Promises in Land Sale Contracts

Every land sale contract contains two implied promises:

1. Promise to provide marketable title

1. Promise that title is free from risk of litigation

2. Defects rendering title unmarketable :

 Acquired by adverse possession

 Encumbered by interests (e.g., mortgage, future interest)

 However, seller has the right to satisfy outstanding

mortgages or liens with sale proceeds

 Zoning ordinance violations exist at sale

2. Promise to disclose & make no material false statements

1. Seller must not materially misrepresent facts or make false statements

concerning the property

2. Seller must disclose latent material defects

3. New property — seller/builder is subject to an implied warranty of

fitness/quality in construction
 
Remedy for breach — buyer must notify seller before closing and give seller reasonable time to cure
defects

 If seller fails to cure, buyer can rescind, file for damages, demand specific performance, or
file suit to quiet title

 If buyer fails to notify seller before closing, contract merges with the deed and seller is not
liable
Concurrent owners

 Co-tenants cannot adversely possess each others’ interest unless ouster has occurred
 I.e., to adversely possess a co-tenant, the co-tenant must be excluded from the land for the
statutory period, which begins once exclusion begins

Boundary disputes:

boundary dispute, now the most frequently litigated of adverse possession claims. 

• Boundary Line Disputes: Boundary line disputes occur on a frequent basis. The rules are much
like those governing adverse possession in general, with a few special “twists.” The following
augments the material in the casebook.
• Adverse Possession:
– Objective (Connecticut) Standard: Under the objective majority view for mistaken
boundaries, possession is hostile so long as the possessor intends to claim the land as her
own, even if the possessor is unsure as to the location of the boundary.
– Subjective (Maine) Standard: Under the subjective minority view for mistaken
boundaries, the possessor must actually know that she has crossed over the boundary and
intend to take away the land.
– .
• Other Methods for Resolving Boundary Disputes:
Doctrine of Agreed Boundaries: An oral agreement to settle a boundary dispute is enforceable if the
parties subsequently accept the line for a long period of time.

– Doctrine of Acquiescence: Long acquiescence (perhaps for a period shorter than the
statute of limitations) is evidence of an agreement between the parties to fix the boundary
line.
– Estoppel: If one party makes a representation (through words or acts) to the other
concerning the location of a common boundary, and the other party changes position in
reliance on that representation, the first part may be estopped from denying the validity of
his representation.
Possessory Estates

- Modern law recognizes four estates:

(1) the fee simple
(2) the fee tail
(3) the life estate
(4) the leasehold

1. THE FEE SIMPLE

 There are three kinds of fee simple estates:
(1) Fee simple absolute;
(2) fee simple subject to a condition subsequent; and
(3) fee simple determinable.
Fee Simple Absolute
A fee simple absolute is a freehold estate, which gives an absolute estate to the grantee

 Present possessory interest that is not subject to any conditions

1. I.e., highest possible form of ownership interest

 E.g., O “to A” or O “to A and his heirs”

1. A has a fee simple absolute

 
 
Characteristics

 Inheritable and of potentially infinite duration

 Distinguish from a life estate, which has a finite duration

 Descendible to grantee’s heirs

A defeasible fee is a conveyance of property that has conditions placed on it

 Estate of potentially infinite duration that can be terminated upon the occurrence of some
specified event

 
Three types of defeasible fees:

1. Fee simple determinable (see card 10) — property automatically reverts back to grantor
upon the happening of a given event
1. Accompanying future interest  = possibility of reverter, which is retained by
the grantor
2. Fee simple subject to condition subsequent (see card 11) — grantor retains the power to
terminate grantee’s estate
1. Accompanying future interest  = right of reentry, which is retained by grantor
3. Fee simple subject to an executory interest (see card 12) — property automatically
transfers to a third party (i.e., someone other than grantor) upon the happening of a given
event
1. Accompanying future interest  = shifting executory interest, which is retained
by a third party
 
Fee Simple Determinable
A fee simple subject to a given event or condition

 Property automatically terminates and reverts back to the grantor upon the happening of a
given event or condition
 
Characteristics:

 Automatic forfeiture — upon occurrence of the given event or condition, the grantee
automatically forfeits the estate

 Potentially infinite  — duration can be infinite if the event or condition does not occur

 Transferability — alienable, devisable, and descendible subject to the occurrence of the

given event

 
Creation — requires clear durational language

 Look for phrases like “for so long as,” “while,” “during”, “until,” etc.

 Words of desire, hope, or aspiration are insufficient

 
Accompanying future interest — possibility of reverter, which is retained by the grantor
 
Example — O “to A for so long as A practices law”

 A has a fee simple determinable; O has a possibility of reverter

 If A stops practicing law, property automatically reverts back to O, the grantor

Fee Simple Subject to Condition Subsequent

A fee simple in which grantor retains the power to terminate grantee’s estate upon the happening of a
given event or condition

 Grantor retains a right of reentry; if condition occurs, grantor must take some action to
exercise her power of termination

 
Characteristics:

 Forfeiture not automatic  — if event or condition occurs, grantee retains title until grantor
takes action to exercise right of reentry

1. Distinguish from fee simple determinable, in which forfeiture is automatic

(i.e., no action required by grantor)

 Potentially infinite  — duration can be infinite so long as the event or condition does not
occur

 Transferability — alienable, devisable, and descendible, subject to the occurrence of the

given event or condition
 
Creation — requires clear durational language that carves out a right of reentry for the grantor

 Look for phrases like “if,” “on condition that,” “provided that,” etc.

 
Accompanying future interest — right of reentry in grantor
 
Example — O “to A, but if A wins the lottery, grantor reserves the right to reenter and take”

 A has a fee simple subject to condition subsequent; O has a right of reentry

Fee Simple Subject to Executory Interest

A fee simple that transfers to a third person upon the happening of a given event or condition
 
Characteristics:

 Automatic forfeiture — upon occurrence of the given event or condition, the estate
automatically transfers to a third person

1. Similar to a fee simple determinable, but ownership automatically transfers to

a third person, not grantor

 Potentially infinite  — duration can be infinite so long as the event or condition does not
occur

 Transferability — alienable, devisable, and descendible, subject to the occurrence of the

given event or condition

 
Creation — requires clear durational language

 Look for phrases like “if,” “on condition that,” “provided that,” etc. followed by a
conditional grant to a third person

 
Accompanying future interest — shifting executory interest
 
Example — O “to A, but if A is ever arrested, then to B”

 A has a fee simple subject to an executory interest; B has a shifting executory interest; O
has nothing

Life Estate

An estate that lasts for the life of a specified person

  E.g., O “to A for life” or O “to A for life, then to B”

 
Characteristics:

 Does not terminate at a fixed or computable period of time

 Measured by the life of the grantee or a third person

 
Accompanying future interest — reversion or remainder

 Reversion — grantor’s future interest in a life estate that does not provide
for disposition of property to a third party
1. E.g., O grants “to A for life”; A is the life tenant, O has a
reversion; when A dies, property reverts back to O
 Remainder — future interest following a life estate that identifies a third
person (i.e., third person has a remainder)
1. E.g., O grants “to A for life, then to B”; A is the life tenant, B has a
remainder; when A dies, property goes to B
2. See cards 18-21 on remainders
 
Life estate pur autre vie (for the life of another) — life estate that is measured by
the life of another person other than the life tenant

 E.g., O grants “to A for the life of B”; A is a life tenant holding an estate in
land until B dies; then property reverts back to O.

Rights & Duties of the Life Tenant

A life tenant (LT) has the right to exclusive use and occupancy of land, as well as the income and
profits of the land

 LT may exercise all usual ownership rights but must maintain and make reasonable
repairs; failure to do so may amount to waste

 
Doctrine of waste — LT cannot commit acts that constitute an unreasonable use of land and/or injure
the interests of the future interest-holder (i.e., remainder or reversion-holder); doing so constitutes
waste
 
Affirmative (voluntary) waste — LT cannot consume or exploit natural resources except:

a. Where necessary for repairs or maintenance of land,

b. When grant expressly gives the right to exploit, or
c. If land was used for exploitation of resources prior to the grant
 1. Open mines doctrine — if exploitation occurred before life estate began, LT
may only extract from mines already open
 
Future Interests

Permissive waste — LT has a duty to repair/maintain property up to the extent of income/profits

derived from the land or the rental value of the land; failure to do so is permissive waste
 
Ameliorative waste — LT acts that economically benefit the land’s value; prohibited under common
law, but usually permitted under modern law

A future interest is a legal right to property that may begin (or vest) at some time in the future (i.e., a
future possessory interest)
 
Characteristics:

 Creates a present interest in grantee  — though possession of land will occur in the future,
a future interest created in grantee gives grantee a present interest in the land
 Accompanies all freehold estates  — only exception is fee simple absolute, which does not
have an accompanying future interest
 Two main types  — distinguished by whether future interest is retained by grantor or
someone else

 
Future interests in grantor (see card 16)

1. Possibility of reverter
2. Right of reentry/power of termination
3. Reversion

 
Future interests in grantees or third persons (see cards 17-23)

1. Vested remainder (see card 18)

2. Contingent remainder (see card 19)
3. Executory interest (see card 22)

Future Interest in the Grantor

Three future interests can be created in favor of the grantor:

1. Possibility of reverter — accompanies a fee simple determinable (see card 10)

1. Automatically becomes possessory if or when fee simple determinable ends
2. May only be created in grantor of fee simple determinable
3. E.g., O “to A until he graduates law school”; O has a possibility of reverter;
if A graduates law school, property reverts back to O
 2. Right of reentry — accompanies a fee simple subject to condition subsequent (see card
11)
1. Gives grantor the right to reenter and terminate the estate upon occurrence of
a given condition (not automatic)
2. May only be created in the grantor of the fee simple subject to condition
subsequent
3. E.g., O “to A but if A goes to law school, O can retake”; O has a right of
reentry; if A goes to law school, O can reenter and retake, but has to take
action (i.e., not automatic)
3. Reversion — default future interest for grants of an estate smaller than a fee simple (e.g.,
life estates)

1. E.g., O “to A for life” or “to A for 99 years”

 O has a reversion; land will revert back to O after life of A or after
99 years in the above examples

Remainders
A remainder is a future interest in a third person that arises immediately upon the natural termination
of the preceding estate

 E.g., O “to A for life, then to B”

1. A has a life estate, while B has a remainder

 
Characteristics:

 Expressly created in favor of someone other than grantor

 Created in the same conveyance in which the preceding estate is created

 Alienable, devisable, and descendible

 
Categories of remainders:

1. Vested remainders (see card 18) — three types:

i. Indefeasibly vested remainders
ii. Vested remainder subject to total divestment/executory limitation
iii. Vested remainder subject to open
2. Contingent remainder (see card 19) — arises if either:

i. There is a condition precedent to the future interest becoming possessory,

ii. The future interest vests in an unascertained taker, or
iii. Both a) and b)
Vested Remainders
A remainder that automatically becomes possessory upon the natural expiration of the preceding estate

 Limitations — vested remainders cannot:

a. Be subject to any condition precedent, or

b. Vest in an unknown or unascertained person

 
Three types of vested remainders:

1. Indefeasibly vested remainder — becomes possessoryimmediately upon termination of

the prior estate

 E.g., O “to A for life, then to B for life”

2. Vested remainder subject to total divestment — subject to some condition subsequent,

such that the remainderman could be divested after taking possession

 E.g., O “to A for life, remainder to B; but if B weds, to C”

3. Vested remainder subject to open (class gift) — remainder vested in a described class
of takers, at least one of whom is capable of taking possession (i.e., by virtue of being
alive)

 E.g., O “to A for life, remainder to children of B and their heirs” — B has one
child, who has a vested remainder subject to open (b/c B may have more
children)

 Open vs. closed class  — class remains open to allow for future class members
and closes when no new class members can be created (e.g., life tenant dies)

 Rule of convenience  — class closes when any class member is entitled to their
share of the class gift

Contingent Remainders
A remainder will be contingent if it is either:

a. Subject to a condition precedent, or

b. Created in favor of an unascertained or unborn person

 
Subject to condition precedent — a remainder’s taking is contingent on the occurrence or happening
of some event or condition
  Once the event or condition occurs, the interest automatically becomes an indefeasibly
vested remainder

 Example — O “to A for life, then to B and his heirs when B gets married”

1. If B is unmarried, A has a life estate, B has a contingent remainder (b/c

marriage is a condition precedent), and O has a reversion in the event B is not
married when A dies

2. If B gets married, he has an indefeasibly vested remainder

 
Subject to unborn or unascertained persons — a remainder’s taking is contingent if created in favor
of unborn or unascertained persons

 I.e., remainder is contingent on grantee being born or ascertained

 Example — O “to A for life, then to B’s heirs”

 If B has no children, the remainder is contingent b/c B’s heirs cannot be

ascertained

Rule of Destructibility
At common law, a contingent remainder is destroyed if it remains contingent when the preceding
estate ends

 I.e., when the preceding estate ends, the contingent remainder is destroyed if its condition
has not been satisfied

 Modern rule — grantor or grantor’s heirs get a reversion

1. Created to avoid destruction of the contingent remainder

 
Examples

 O “to A for life, then to B once B goes to law school.” A dies and B has not gone to law
school

1.
 Common law — B gets nothing upon A’s death b/c B’s contingent remainder
has been destroyed
 Modern rule  — O or O’s heirs get a reversion until B goes to law school

 O “to A for life, remainder to B and her heirs if B reaches age 21.” When A dies, B is only
16
 1.
 Common law — B gets nothing upon A’s death b/c B’s contingent remainder
has been destroyed
 Modern rule  — O gets a reversion until B reaches age 21

Executory Interests
An executory interest is a future interest in a third party that takes effect by cutting short some interest

 Two types — shifting and springing executory interests

 
Characteristics:

 Includes any future interest that is not a remainder

 Look for phrases like “but if,” “then to,” “for so long as,” etc.

 Alienable, devisable, and descendible

 
Shifting executory interests — cuts short one other than grantor

 E.g., O “to A and his heirs, as long as property is used for storage, but if used for any
other purpose, to B and his heirs”

1. A has a fee subject to an executory interest

2. B has a shifting executory interest — if A stops using the property for storage,
A’s interest is cut short
 
Springing executory interests — cuts short grantor or his heirs

 E.g., O “to A if and when A gets married”

 O has a fee simple subject to an executory interest

 A has a springing executory interest — if A gets married, possession springs

from O to A
Tenancy in Common
A tenancy in common is an estate with multiple tenants in which each co-tenant owns a distinct,
undivided interest and each tenant has a right to possession of the whole estate
 
Characteristics:

 Co-tenants share the right to possession of the entire estate

 Freely transferable — each interest is descendible, devisable, and alienable

1. I.e., each co-tenant can freely transfer their interest

 No survivorship rights  — a co-tenant’s interest can be transferred to her heirs upon her
death

1. I.e., a dying co-tenant’s share does not automatically get passed to or absorbed
by surviving tenants

 Distinguish from joint tenancy (see cards 25-26)

 Partition — a co-tenant can force partition of the tenancy in common at any time and take
sole ownership of her share

1.

 In such a case, remaining parties continue to hold their interests as tenants in

common

Joint Tenancy
A joint tenancy (JT) is an estate held by two or more parties, each of whose share passes to the other
upon a tenant’s death

 Created by a conveyance to all joint tenants (JTs)

 
Creation — four conditions must concurrently exist when the tenants take their interests:

1. Time — JTs must take their interests at the same time

2. Title — JTs must receive their conveyance through the same instrument

3. Interest  — JTs must take an equal and identical interest

4. Possession — JTs must have equal possessory rights

 
Characteristics:
  Express intent by grantor required  — grantor must expressly intend to create a JT;
otherwise, tenancy in common is presumed

 E.g., O conveys Blackacre by written deed to A, B, and C “jointly with the

right of survivorship”; this creates a JT

 Right of survivorship  — if one JT dies, surviving JTs automatically take equal possession
of the deceased JT’s share

 E.g., if B dies, A and C take full possession of B’s share

 Transferability — alienable, but not devisable or descendible

 Severance or transfer may create a tenancy in common (see card 24)

Severance & Transfer of Joint Tenancies

Where a joint tenant transfers or severs her JT interest, a tenancy in common may be created
 
Severance and transfer — severance or transfer by any JT of their interest creates a tenancy in
common with respect to the severed or transferred interest

 As long as more than one joint tenant remains, the JT will continue among the remaining
joint tenants

 E.g., A, B, & C hold Blackacre as JTs; C conveys her interest to D

1. A & B hold 2/3 of Blackacre as JTs; D holds 1/3 of Blackacre as a tenant in

common

 E.g., A & B hold Blackacre as JTs; B conveys her interest “to C for life,” creating a life
estate in C and a tenancy in common for A

1. No longer unity of interest among JTs, so JT destroyed

 
Mortgages & JT interests — when a JT mortgages her interest, whether this severs the JT depends
on whether the jurisdiction is lien theory (majority) or title theory (minority)

 Lien theory — JT can take a mortgage on her interest without severing the JT b/c no title
passes to the mortgagee

 Title theory — JT is severed if any JT take a mortgage on her interest b/c title passes to
the mortgagee

 
Tenancy by the Entirety
A tenancy by the entirety is a marital estate similar to a JT, but between spouses in which the spouses
are co-tenants
 
Creation — created by conveyance to a married couple

 Requires the same four conditions as for a JT (i.e., time, title, interest, possession)

 Tenancy by the entirety is presumed in any conveyance made jointly to a married couple

 
Characteristics

 Right of survivorship  — upon death of one tenant, property automatically passes to the
surviving spouse

 No right of partition  — one spouse may not unilaterally convey their interest; an attempt
to do so is invalid

 Protected from creditors  — creditors of one spouse cannot reach that spouse’s interest in
the tenancy; only creditors of the couple (i.e., joint creditors) can reach a tenancy by the
entirety

 
Severance — four ways to sever, which creates tenancy in common:

1. Death of one co-tenant

2. Written agreement by both parties

3. Issuance of a divorce decree

4. Execution by a joint creditor (e.g., foreclosure)

Leasehold Estates
A leasehold estate grants a tenant rights to use an owner’s property

 Tenant has a present possessory interest in the property

1. Landlord has a future interest (reversion)

 Gives tenant leaseholder the right to exclusive possession of the property for the duration
of the lease term as long as tenant performs his lease obligations
 
Four types of leasehold estates:

1. Tenancy for years (see card 29)— tenancy that lasts for a fixed and certain period of
time

1. A.k.a. “estate for years,” “term for years,” “fixed term tenancy”

2. Periodic tenancy (see card 30)— tenancy for a specified period of time that repeats until
terminated

1. E.g., year-to-year, month-to-month, day-to-day

3. Tenancy at will (see card 31) — tenancy that is of uncertain duration; either party can
terminate at any time without notice

4. Tenancy at sufferance (see card 32) — tenancy in which tenant has possession by virtue
of wrongfully remaining after termination of a lease (i.e., holdover tenant)

Tenancy for Years

A tenancy for years is a leasehold that lasts for a fixed and certain period of time (e.g., two weeks, six
months, 5 years, etc.)

 Also referred to as “estate for years,” “term for years,” or “fixed term tenancy”

 
Creation — typically created by written lease

 Requires a definitive beginning and end date

 If duration is longer than one year, lease must be in writing

1. Required under Statute of Frauds (SoF)

 
Termination — terminates automatically at the end of the fixed period

 Notice is not required

 In the event of tenant breach, landlord retains right of reentry (under majority rule)

Periodic Tenancy
A periodic tenancy is a leasehold that is continuous for successive intervals until either party gives
notice of termination
 
Creation — can be express, implied, or by operation of law

 By express agreement — conveyed to tenant for agreed interval

 By implication — a lease that does not specify duration, but provides for rent to be paid
at set intervals

1. Look for payment and acceptance of rent on a regular basis

 By operation of law — two situations:

1. Invalid lease  — if tenant takes possession despite an invalid lease (e.g., lease
violates SoF), periodic tenancy arises upon the landlord’s acceptance of
payment

 The period the accepted payment covers determines the period of

the tenancy

2. Holdover tenant  — if landlord accepts rent from a holdover (i.e., one

wrongfully remaining after a lease terminates), a periodic tenancy arises for
the period the payment covers

 
Termination — arises when tenant gives notice, which requires:

1. Sufficient time — tenant must give notice one full period in advance; year-to-year
tenancies require six-month notice

2. Effective date  — effective date of termination must be at the end of the period of tenancy

 Note — parties can agree to modify these requirements

Tenancy at Will
A tenancy at will is a tenancy of uncertain duration, which can be terminated by either party at any
time without notice
 
Creation — express agreement

 Without an express agreement, courts will treat the lease as an implied periodic tenancy

 
Termination — by will or operation of law

 By will — either party can terminate the lease at any time without notice
 1. If landlord terminates, a reasonable demand to vacate the premises is usually
required

 By operation of law  — occurs upon any of the following:

1. Death of either party

2. Waste by the tenant

3. Assignment by the tenant

4. Transfer of title by the landlord

5. Lease by the landlord to a third party

Tenants’ Common Law Duties & Responsibilities

At common law, tenants have the below duties and responsibilities
 
Duty to repair — can largely be modified by lease terms:

 Tenant must maintain premises and make ordinary repairs

1. Usually excludes ordinary wear and tear

2. Residential tenants’ duty to repair is slightly mitigated by the implied

warranty of habitability (see card  38)

 Tenant must not commit waste  — three types of waste:

1. Voluntary — overt, harmful acts (e.g., removing fixtures)

2. Permissive — neglect (e.g., broken windows)

3. Ameliorative — alterations increasing property value; tenant is liable for costs

of restoring property to prior condition

 Under modern law, ameliorative waste is often allowed

 
Duty to pay rent — tenancy at sufferance arises upon breach
 
Duty to not use property for illegal purposes — if tenant uses premises for a significantly illegal
purpose, landlord may terminate lease or obtain damages and injunctive relief
 
Destruction of premises without fault of landlord or tenant:

 Common law — tenant held liable for any loss

  Modern law — tenant can terminate the lease

Landlord’s Remedies for Tenant Breach

If tenant breaches his leasehold duties, landlord’s options depend on whether tenant retains possession
(i.e., remains on premises)
 
Tenant retains possession — landlord may:

a. File for notice of eviction, or

b. Continue the lease and sue for rent due

 
Tenant abandons premises — landlord may:

a. Surrender — treat the abandonment as tenant’s surrender and accept it, releasing tenant
from the lease,

b. Ignore (minority rule) — hold tenant liable for unpaid rent, or

c. Re-let (majority rule) — lease premises to new tenants and hold breaching tenant liable
for any losses

 
Self-help — under common law, landlord is entitled to use reasonable force to oust a tenant in breach
(e.g., remove tenant’s belongings, change locks, etc.)

 Most states now prohibit landlord from forcibly removing tenant (i.e., self-help)

 
Retaliatory eviction — landlord is prohibited from engaging in a retaliatory eviction if a tenant
lawfully reports housing code violations

Landlord’s Duties & Tort Liability

At common law, landlords had no duty to repair or maintain property, but under modern law landlord
has certain implied duties
 
Implied duties:

1. Duty to deliver possession — two interpretations of this duty:

 1. Majority — actual possession

 Landlord must deliver physical possession to tenant

2. Minority — legal possession (i.e., right to possess)

 New tenant is responsible for any holdovers on the property

2. Implied covenant of quiet enjoyment (see card 37)

3. Implied warranty of habitability (see card 38)

 
Tort liability — landlord may also be liable in tort for injuries occurring on leased property; landlord
has duties concerning:

1. Common areas — duty of reasonable care in maintaining and repairing common areas
(e.g., hallways, stairs)

2. Latent defects — duty to disclose hidden defects he should reasonably know of

3. Repairs — landlord is liable for harm caused by negligent repairs he chooses to undertake

4. Public use — landlord is liable for known defects if he knows the property is for public
use and tenant is unlikely to repair

Implied Covenant of Quiet Enjoyment

A tenant has an implied right to quiet use and enjoyment of the premises, without interference from
the landlord

 Breach of this implied covenant may occur by actual eviction or constructive eviction

 
Actual eviction — occurs when a landlord wrongfully evicts or excludes tenant from the property

 Terminates tenant’s duty to pay rent

 
Constructive eviction — occurs when a landlord’s actions or inactions render the property
uninhabitable; requires:

1. Substantial interference  — major and/or chronic problems

1. E.g., leaky roof, toxic mold, etc.

 2. Notice — tenant must inform landlord and give him a reasonable opportunity to repair;
landlord must fail to act meaningfully

3. Vacate — tenant must vacate within a reasonable period after the landlord fails to repair

 Tenant may terminate the lease and seek damages

Implied Warranty of Habitability

Residential property must be fit for basic human dwelling

 Breach of the implied warranty of habitability occurs when conditions make the premises
uninhabitable

1. E.g., no heat in winter, no plumbing, no water, etc.

 
Characteristics:

 Not applicable to commercial leases

 Absolute duty — cannot be modified by lease terms

 
Tenant’s remedies for landlord breach — four options:

a. Move — vacate premises and terminate the lease

b. Repair — make reasonable repairs and deduct the costs from future rent

c. Reduce or withhold rent — tenant can reduce or stop payment until a court determines
the fair rental value given the breach

1. Tenant must place withheld rent in escrow

d. Remain — tenant can remain in possession and seek money damages

Assignments & Subleases

Unless restricted by lease terms, a tenant may transfer her leasehold interest in whole (assignment) or
in part (sublease)
 
Assignment — entire leasehold transfers from tenant to assignee

 Assignee is in privity of estate with landlord — the two are bound by all covenants that
run with the land

 Assignor remains in privity of contract with landlord

 Assignee owes rent directly to landlord, but assignor may be held liable for unpaid rent
 
Sublease — partial leasehold transfers from sublessor to sublessee

 Sublessor is in privity of estate and contract with landlord (i.e., relationship between
tenant and landlord is unchanged)

1. Sublessee pays rent to sublessor as her tenant

 Sublessee is not liable to landlord for rent and is not bound by any covenants unless
expressly assumed

 
Assignment/sublease provisions — construed against landlord

 Lease provisions restricting assignment or sublease are enforceable, but generally

construed against landlords

Types of Easements
Easements are a non-possessory property interest that confers a right to use another’s land; can be
affirmative or negative

 Affirmative  — allows its holder to use another’s property

 Negative — allows its holder to restrict another’s use of their own property (see card 45)

 Servient vs. dominant estate  — servient estate is burdened by an easement; dominant

estate is benefitted by an easement

 
Types of easements

 Easement appurtenant — allows a dominant estate owner to use a servient estate for
benefit of the dominant estate owner

1. E.g., right to use a pathway through another’s property

2. Attaches to the land and passes automatically

 I.e., if dominant or servient estate is sold, the easement remains

in place with respect to new owner(s)

 Easement in gross — entitles an individual or entity (not a dominant landowner) to use

the servient estate

1.

1. Does not attach to land; there is no dominant estate

 2. E.g., right to place a billboard on another’s lot, right to run a utility line across
land, right to fish in another’s pond

3. Similar to a license, but irrevocable; transferable

 
Creation — easements may be created by prescription, implication, necessity, or expressly by grant
or reservation (see cards 41-44)

 Easement may also be created by estoppel

Express Easement
Easements may be created expressly by grant or reservation
 
Grant — an express grant of the easement

 Created by instrument (e.g., a written agreement) in which the owner of the servient estate
gives the easement to the owner of the dominant estate

 Most straightforward method of creating an easement

 
Reservation — grantor conveys title to land but reserves the right to continue using the land for a
designated purpose

 I.e., in a land sale, the seller reserves for herself an easement in the property to be sold

 Common law — grantor may only reserve an easement for himself

1. Modern law — most courts have abandoned this rule and allow reservation of
an easement to a third party

 E.g., O conveys Blackacre to A, reserving an easement allowing access to a path across

the property

 
Requirements — express easements must be:

1. In writing (otherwise will violate SoF); and

2. Signed by the servient estate holder

Easement by Necessity
An easement can arise if access to or from a property is impossible without the easement

 I.e., the easement’s existence becomes necessary b/c land cannot be reached without it

 
Creation — usually arises when an owner sells a portion of property, resulting in one lot owner being
deprived of access to a public road

 The owner of the servient estate can choose a reasonable location for the easement

 E.g., A acquires Whiteacre from B, who owns the adjacent property Blackacre; Whiteacre
is bordered on all three sides by wetlands, meaning A’s only access to the nearest public
road is through Blackacre; A will be able to get an easement by necessity to access the
public road

 
Requirements:

1. Necessity must be strict (compare with easement by implication, which requires only
“reasonable” necessity) (see card 43);

2. Servient and dominant estates were originally under common ownership; and

3. Necessity arises b/c of, and is caused by, a conveyance that breaks up the common
ownership

 
Termination — expires automatically when the necessity ends

Easement by Implication
An easement legally implied based on prior use by a common grantor on land subsequently divided
into multiple plots
 
Requirements:

1. Easement exists prior to division of a single tract of land;

2. Common grantor’s use is continuous and apparent; and

3. Use is reasonably necessary for enjoyment of the dominant tenement

 
Examples:

 A owns Blackacre and Whiteacre; A builds a driveway on Blackacre in order to access

Whiteacre; A sells Blackacre to B

1.

 A will likely have an implied easement (note that A could also have sold to B
and reserved the easement)
  Same facts as above, but A sells Blackacre to B and Whiteacre to C, who wants continued
use of the driveway on Blackacre; C will have an implied easement for use of the
driveway

Easement by Prescription
A process of acquiring an easement; similar to acquiring title by adverse possession (see card 54)
 
Requirements — acquirer’s use of another’s land must be:

1. Continuous — uninterrupted for the applicable statutory period

2. Open and notorious — owner knows or should know of use

3. Actual — consistent with use of an easement

4. Hostile — without owner’s permission

Limitations:

 Negative easements and easements in public lands cannot arise by prescription

 Easement by prescription cannot arise if an easement by necessity can be established

 
Note — an easement can also be terminated by prescription if
the servient landowner makes adverse use of the easement (i.e., interferes with the easement
sufficiently to satisfy the above requirements)

Negative Easements
Entitles the holder to prevent the servient landowner from engaging in otherwise permissible activities
on his own land
 
Four categories of acts may be prevented:

1. Light

2. Air

3. Support

4. Stream of water from an artificial flow

 
Creation — can only be created by express grant (writing signed by grantor)
 
Example — A owns Whiteacre, which is lake front property; B owns Blackacre, which is separated
from the lake by Whiteacre

 If A gives B an easement of light and air that restricts A from building structures that
block B’s view of the lake, a negative easement will be created

 
Note — restrictive covenants may be utilized to prevent a landowner from engaging in certain
activities on their land (although restrictive covenants are now often interpreted as negative
easements)

Termination of Easements
Easements may be terminated in any one of the following ways:
 

1. Estoppel — where servient owner reasonably relies on an easement holder’s conduct or

representations indicating an intent to abandon the easement; non-use alone is insufficient
2. Necessity ends — easements by necessity expire when the need that created them ends

3. Destruction of servient tenement — unless destruction results from willful conduct of

the servient owner

4. Release — easement holder can terminate the easement by giving a deed of release to the
servient tenement owner

5. Abandonment — easement is terminated if its holder physically demonstrates an intent to

permanently abandon it

 Mere words or non-use are insufficient

6. Merger — easement terminates automatically if one person acquires title of both the
easement and the servient land

 Re-dividing the merged title will not revive the easement

7. Prescription — servient owner may extinguish an easement by interfering with it using

elements of adverse possession (see cards 44, 54)

8. Expiration — if easement was established for a set term, or to expire upon stated
conditions, expiration of the term or occurrence of the stated conditions will terminate the
easement

Licenses
A license is a right to use another’s land, which is revocable at the will of the licensor

 E.g., A gives permission to his neighbor B to use A’s pool

1. License has been created; A is licensor, B is licensee

  Licenses occur in many everyday situations, e.g., movie tickets (grants license to ticket
holders), right to use a parking lot

 
Characteristics:

 License is a privilege, not an interest in land (distinguish from an affirmative easement)

 Revocable — licensor may revoke the privilege at any time

1.

 Exception — license irrevocable if estoppel applies

 E.g., licensor has allowed licensee to contribute substantial

money, labor, etc.

 No SoF requirement — license may be oral or written; a license can result from an
easement that is invalid under the SoF


 E.g., an oral grant of a permanent easement between neighbors may result in a

license b/c SoF not satisfied

 Inalienable — may not be assigned or transferred

 Any attempt to do so revokes the license

Covenants Running With the Land
A covenant is a promise to do or refrain from doing something related to land (i.e., a contractual
limitation or promise)

 E.g., promise to pay homeowners association fees

 Covenants are not property interests

 
Real covenant — a covenant concerning real property; two types:

 Affirmative covenant  — promise to do something related to land

 Restrictive covenant  — promise to refrain from doing something related to land

 
Runs with the land — covenants run with the land, meaning subsequent owners may be burdened by
or may enforce a covenant
  Different requirements apply for burdens and benefits running with the land (see cards
50-51)

 
Termination — can occur by:

a. Written release,

b. Merger of benefitted land with burdened land, or

c. Condemnation of the burdened property

 
Covenants vs. equitable servitudes — difference is the remedy

 Covenant — money damages

 Equitable servitude — injunctive relief

 See Card 52 - Equitable Servitudes

Requirements for Burdens of Covenant to Run With Land

A successor in interest to an estate burdened by a covenant will be bound by the covenant if the
following conditions are satisfied:
 

1. Writing — original covenant was in writing

2. Intent — parties intended to bind successors in interest

 Look to language of the covenant; courts are liberal in construing requisite

intent
3. Touches and concerns the land — covenant must affect parties’ legal relations as
landowners (a very low standard)

 Homeowner association fees satisfy this requirement

4. Horizontal and vertical privity — must exist between interested parties

 Horizontal privity  — relationship between the

covenanting parties (e.g., grantor/grantee, landlord/tenant,
mortgagor/mortgagee)

Vertical Privity  — relationship between covenanting parties and their

successors in interest (e.g., contract, descent)
2. Notice — successor in interest had notice of the covenant when she took her interest

Requirements for Benefits of Covenant to Run With Land

A successor in interest to the benefiting estate may enforce the covenant if the following conditions
are met:
 

1. Writing — original covenant was in writing

2. Intent — original parties intended benefit to run with the land

 Look to language of the covenant; courts are liberal in construing requisite

intent
3. Touches and concerns the land — the covenant must affect parties’ legal relations as
landowners; promisee must benefit from the use and enjoyment of the land (low standard)
4. Vertical Privity — must exist between original covenanting parties and their successors
in interest (e.g., through contract, devise, or descent)

 Horizontal privity is not required for majority of states

Equitable Servitudes
An equitable servitude is a promise concerning land that is enforced in equity against successors
through injunctive relief

 Virtually the same as a covenant, except for the remedy

1. I.e., remedy for violation of equitable servitude is injunction

 Privity is not required to bind successors

 
Creation — requirements:

1. Writing — written promise

2. Intent — original parties must intend to bind successors

3. Touches and concerns the land

4. Notice — successors of the burdened land had notice

 Notice not required for benefit to run

 
Defenses to enforcement — a court will refuse to enforce an equitable servitude if any of the
following conditions exist:

1. Pervasive changes in the neighborhood

2. Estoppel

3. Acquiescence
 4. Unclean hands

5. Laches

 
Termination — same rules as for covenants (see card 49)
 
Adverse Possession
Adverse possession allows a trespasser to acquire title to another’s property without compensation by
possessing the property for a specified period, in a manner conflicting with the true owner’s rights
 
Requirements — trespasser’s possession of the land must be:

1. Continuous for the statutory period — varies by state

 Possession must be similar to an ordinary owner’s use of the property (i.e.,

daily possession not required if an ordinary user would not use the property
daily (e.g., winter cabin))

2. Open and notorious — trespasser’s possession must be conspicuous, such that the true
owner would know of the trespass if he inspected his property regularly

 Owner need not actually know of the trespasser’s use

3. Actual and exclusive — must possess a reasonable portion of the property to the
exclusion of the owner and the public
4. Hostile — possession must be without owner’s permission

 No knowledge or intent requirement (i.e., trespasser need not intend to

adversely possess)

 Leasehold — if a tenant stays in possession after a lease has expired, he is

presumed to have permission (i.e., tenancy at sufferance arises, as opposed to
the beginning of an adverse possession period)
 
Miscellaneous Adverse Possession Rules
The below issues can arise in adverse possession cases
 
Statute of Limitations (SoL)

 Disability — SoL does not begin to run if the true owner was under some disability when
the adverse possession began

1. I.e., owner is a minor, imprisoned, etc.

2. Tacking of disabilities not allowed (see card 56)

 Future interests — SoL does not run against future interest holders until the interest
becomes possessory
 
Restrictive covenants — will not run with the land if the adverse possessor’s use of land violated the
covenant

 But will run if adverse possessor’s use complied with covenant

 
Color of title — title that appears valid but in actuality is ineffective

 An adverse possessor entering land under color of title who possesses part of the property
in good faith may be able to acquire actual title to the entire property

 I.e., one who believes they have title to property but does not may be able to acquire
property through adverse possession

 
Govt. land — cannot be acquired through adverse possession
 
Leasing — adverse possessors can lease part of the land to a third party and still possess the property
for adverse possession purposes
 
Non-marketable title — title taken by adverse possession is not marketable, unless there has been an
action to quiet title

Adverse Possession: Tacking & Concurrent Owners

Different adverse possessors can tack together successive periods of adverse possession to satisfy
statutory requirements
 
Requirements:

 Must be successive — there cannot be gaps between periods of adverse possession

 Privity required — there must be privity between successive adverse possessors

1. Satisfied if subsequent possessor takes by descent, devise, or deed purporting

to convey title

2. E.g.,, tacking is not permitted if one adverse claimant ousts the preceding
claimant
 
Concurrent owners

 Co-tenants cannot adversely possess each others’ interest unless ouster has occurred

 I.e., to adversely possess a co-tenant, the co-tenant must be excluded from the land for the
statutory period, which begins once exclusion begins

Land Sale Contracts & Conveyancing Issues

Land sale contracts — subject to the SoF and must be:

1. In writing;

2. Signed by the parties to be bound; and

3. Include essential terms (e.g., consideration paid, land description)

 
Exception — partial performance; land sale contract is outside the SoF if the buyer takes possession
and either:

a. Pays all or part of the purchase price, or

b. Makes substantial improvements

 
Land sale process:

1. Contract — agreement to buy/sell land

2. Escrow — transfer of funds

3. Closing — escrow completion to deed transfer

4. Conveyance — successful deed transfer, upon which property is conveyed to the new
owner

 
Equitable conversion — upon contract execution, buyer has title to property, but seller owns the right
to proceeds of the sale; if either party dies before closing, their contract rights pass (i.e., seller’s heirs
can sue for sale proceeds, buyers heirs can sue for deed delivery)
 
Risk of loss — if property is destroyed before closing through no fault of parties, buyer bears the risk
of loss unless otherwise agreed

 Seller must credit any insurance proceeds from loss against the purchase price

Implied Promises in Land Sale Contracts

Every land sale contract contains two implied promises:

1. Promise to provide marketable title

1. Promise that title is free from risk of litigation

2. Defects rendering title unmarketable :

 Acquired by adverse possession

  Encumbered by interests (e.g., mortgage, future interest)

 However, seller has the right to satisfy outstanding

mortgages or liens with sale proceeds

 Zoning ordinance violations exist at sale

2. Promise to disclose & make no material false statements

1. Seller must not materially misrepresent facts or make false statements

concerning the property

2. Seller must disclose latent material defects

3. New property — seller/builder is subject to an implied warranty of

fitness/quality in construction
 
Remedy for breach — buyer must notify seller before closing and give seller reasonable time to cure
defects

 If seller fails to cure, buyer can rescind, file for damages, demand specific performance, or
file suit to quiet title

 If buyer fails to notify seller before closing, contract merges with the deed and seller is not
liable

Deeds
A deed passes legal title from one party to another
 
Requirements — to be effective, a deed must be:

1. Lawfully executed — deed must be signed by grantor and must reasonably identify the
parties and the land

2. Delivered — requires intent to be bound by the conveyance

 Title passes upon effective delivery; cannot be rescinded

 Present intent controls; physical transfer not required

 Acceptance — grantee must accept the deed; acceptance is usually presumed

upon valid delivery

 Rejection by grantee = ineffective delivery

 
Types of deeds:
 1. General warranty — provides the broadest protection to grantee

 Includes six covenants for title (see card 60)

2. Special warranty — provides grantee with limited, implied protections; grantor assures
grantee that:

 He has not conveyed the land to another; and

 The land is free from encumbrances made by grantor

b. Quitclaim — provides almost no protection to grantee

 Transfers whatever interest grantor purports to have in the property (i.e.,

grantor is not even promising he has title)

 No covenants included
General Warranty Deeds & Covenants for Title
In a general warranty deed, seller provides six covenants for title that provide various assurances to
buyer

 Includes three present and three future covenants

 
Present covenants (only may be breached at the time of delivery):

1. Seisin — grantor covenants that she is the rightful owner of the described property

2. Right to convey — grantor covenants that she has the right to convey the described
property

3. Against encumbrances — grantor covenants that the land is free from encumbrances
(e.g., mortgages, easements, liens)

 
Future covenants (only breached after delivery):

1. Quiet enjoyment — grantor covenants that grantee will not be disturbed by a third party’s
claim of lawful title

2. Warranty — grantor agrees to defend against lawful claims of title by others

3. Further assurances — grantor promises to perform future acts reasonably necessary to

perfect the title conveyed

Bona Fide Purchasers

A bona fide purchaser (BFP) is one who purchases property for value (i.e., gives financial
consideration) without notice of a prior conveyance
  I.e., a BFP is an innocent party who buys property without notice of another’s claim to the
property

 Note — whether a buyer is a BFP can be extremely important in the context of recording
statutes (see card 62)

 
Purchasers:

 Includes mortgagees for value (i.e., one who has an interest in the property)

 Does not include donees, heirs, or devisees

1. Not protected by the recording statutes unless the Shelter Rule applies (see
cards 62-63)
 
Notice — a buyer has notice of a prior conveyance by:

 Actual notice — actual knowledge, from any source

 Record notice — knowledge from a routine title search

 E.g., a previous conveyance properly recorded in the chain of title

 Inquiry notice — what a reasonable inspection of the land would reveal (regardless of
whether buyer actually inspects)

Recording Statutes
Recording one’s property interest provides notice to all subsequent purchasers; if a conveyance or
interest is not recorded, a subsequent buyer/mortgagee may be protected under a recording statute

 Level of protection depends on the type of recording statute that governs the property

 
Race statutes — first grantee to record prevails, regardless of whether buyer is a BFP

 E.g., non-BFP purchaser who records first prevails over a BFP

 Sample language : “No conveyance or mortgage of an interest in land shall be valid against
a subsequent purchaser whose conveyance is first recorded”

 
Notice statutes — subsequent BFP always prevails

 Whether or not she recorded first, a subsequent BFP always prevails over a prior grantee
who fails to record
  Sample language : “No conveyance or mortgage of an interest in land shall be valid against
any subsequent purchaser for value without notice thereof unless it is recorded”

 
Race-notice statutes — first subsequent BFP to record prevails

 Sample language : “No conveyance or mortgage of an interest in land shall be valid against
any subsequent purchaser for value without notice thereof whose conveyance is first
recorded”

Chain of Title Problems: Shelter Rule & Wild Deeds

Several issues can arise with recording statutes and rules surrounding them
 
Wild deeds — the mere fact that a deed is recorded may not be sufficient to provide record notice to
subsequent purchasers

 A wild deed is a recorded deed that cannot be located upon reasonable inspection of
records and is thus unconnected to the chain of title (e.g., due to a clerk’s filing error)

 Record notice cannot be derived from a wild deed

 
Shelter rule — one who takes from a BFP will prevail against any interest the transferor-BFP would
have prevailed against, even if the transferee had actual notice of a prior conveyance

 Protects donees, heirs, or devisees of BFPs who cannot qualify as BFPs and would not
otherwise receive protection under notice or race-notice statutes

 Example — O is owner of record of Whiteacre, which he conveys to A, who does not

record; O then conveys to B, a BFP; B dies and leaves property to C, who knew of the O-
A deed

1. C prevails under all recording statutes, as A’s rights are cut off by O’s
conveyance to B, a BFP and B recorded first

2. C is “sheltered” by O’s conveyance to B even if C would not have otherwise

prevailed given C knew of O-A deed
Mortgages
A mortgage is a security interest in land that serves as collateral for the repayment of a loan (a.k.a.
“mortgage deed,” “note”)

 Must be in writing to satisfy the SoF

 Mortgagor = debtor/borrower/landowner

 Mortgagee = creditor

 
Parties’ rights — different theories on who has title and possession

 Lien Theory (majority) — mortgagor has title and the right to possession absent
foreclosure (see card 58)

1. Mortgagee has a lien, conferring a right to take action for ownership of the
land if the mortgagor defaults on the loan

 Title theory (minority) — mortgagee has title to the property during loan term, not
mortgagor-borrower

 
Acceleration clauses — terms in loan agreements that require mortgagor to pay off full loan
immediately if certain conditions are met, e.g., if mortgagor misses too many payments
 
Foreclosure
When a mortgagor defaults (i.e., fails to make loan payments), mortgagee can attempt to recover the
balance of the loan by forcing the sale of the property subject to the mortgage

 Property is sold to satisfy the debt in whole or in part

 Deficiency judgment  — if the debt exceeds sale proceeds, mortgagee can file suit against
mortgagor for debt balance

 
Redemption in equity — at any time prior to the foreclosure sale, mortgagor can redeem the property
by paying the amount due

 Some jurisdictions allow mortgagor, for a certain period, to buy back (redeem) the
property after the foreclosure sale

 
Mortgagee possession — mortgagee’s right to possession prior to foreclosure depends on the
jurisdiction:

 Lien theory — no right to possess prior to foreclosure

 Title theory — right to possess at any time upon demand

 Mortgagee can always take possession with mortgagor’s consent or abandonment

 Mortgagee in possession assumes the risk of accounting for rents, managing property, and
tort liability to third parties

Eminent Domain
Eminent domain is the govt.’s power to take private property for public use in exchange for just
compensation
  Power is founded in the 5th Amend. Takings Clause, which prohibits govt. from taking
private property for public use without just compensation

 
Public use — govt. taking must be for a public use

 Standard — govt. taking will be for a public use if it is rationally related to a conceivable
public purpose — lenient standard

 “Public purpose” includes turning property over to private user

1. E.g., city using eminent domain power for economic revitalization plan that
built facilities for private use upheld

2. Property does not need to be held open to public at large

 Courts will generally be deferential to a legislature’s findings as to what is considered a

public use

 
Just compensation — when govt. exercises eminent domain power, it is considered a 5th Amend.
taking, requiring just compensation

 Just compensation = fair market value at the time of the taking (i.e., not measured by
value of loss to owner)