Comprehensive PMBR Property LEB | Concurrent Estate | Leasehold Estate

Property PMBR CD #1 Perhaps the most difficult part of the bar exam.

Key to success on the bar exam is organization. Sections of Property Law (8) First 5 are Classifications of interest in Real Property a. Freehold estates - give possession to property under some legal title. i. Fee simple ii. Fee tail iii. Life estates b. Non-freehold estates give mere possession, no legal title. (landlord-tenant law) i. Tenancy for years ii. Tenancy from period to period iii. Tenancy at will iv. Tenancy at sufferance c. Concurrent estates i. Joint tenancy ii. Tenancy by the entirety iii. Tenancy in common d. Non-possessory interests in land (incorporeal) i. Easements ii. Profits iii. Covenants running with the land iv. Equitable servitudes v. Licenses e. Future interests i. Reversions ii. Possibility of reverter iii. Right of re-entry iv. Remainders 1. Contingent remainders 2. Vested remainders v. Executory interests f. Rights incident to possession i. Adverse possession ii. Lateral subjacent support iii. Water rights g. Conveyancing i. Recording statutes ii. Deeds iii. Equitable conversion doctrine h. Mortgages



2 I. Freehold estates – give possession to land under some legal title i. Fee simple absolute – Potentially infinite duration – maximum estate person can own. i. Most extensive estate a person can own; largest estate known to law ii. Largest estate known, potentially of infinite duration iii. Common law: To convey, words at common law had to be “To B (the grantee) and his heirs” 1. The words “and his heirs” used in a deed were construed as words of limitation. a. They described the quantum / size of the estate that was transferred to the grantee. iv. At Modern law, we designate the owner to the grantee  X conveys land to B. v. Words of purchase indicate the grantee or the person that takes the property. vi. Conveyance to B would create a fee simple absolute today without necessarily including “and his heirs” or “and her heirs.” j. Fee simple defeasible i. Fee simple determinable 1. Fee simple estate created to continue until the happening or non-happening of a certain event 2. Possibility of reverter a. When that event occurs, the estate terminates automatically; automatic reversion to the grantor upon the happening or non-happening of that stated event. 3. Ex: X, owner in fee, conveys Blackacre to A, so long as the property is used as a school. a. If the property is no longer used as a school, title automatically reverts to the grantor upon the happening or non-happening of that stated event. 4. Words for fee simple determinable: a. “so long as” b. “during” c. “until” d. “while” 5. Fee simple determinable has a possibility of reverter since the grantee’s estate may end on the happening or nonhappening of an event 6. Possibility of reverter: Possibility that event occurs; but if that event does occur (i.e., when the property is no longer used as a school, for residential purposes, or where liquor is sold on property), there is an automatic reversion to the


3 grantor on the happening or non-happening of a stated event. 7. Automatic reversion ii. Fee simple subject to condition subsequent 1. Fee simple estate that may be terminated on the happening or nonhappening of a stated event or contingency. 2. Ex: X, owner in fee, conveys Blackacre to A and his heirs, but if the land is not used as a farm, X may reenter the land. 3. Right of re-entry for broken condition 4. When the event occurs (if land no longer used as a school, if liquor is sold on the premises), the grantor or his heirs have the right / option of re-entering and reacquiring ownership to the property or possession to the property. 5. Compare: Fee simple determinable – automatic reversion back to the grantor on the happening of a stated event; right of re-entry – reversion is not automatic. 6. Words: (words of condition) a. “On condition that” b. “Subject to the condition that” c. “But if” iii. Fee simple subject to executory interest 1. Fee simple estate whereupon the happening or nonhappening of a stated event, ownership passes from one grantee to another grantee. 2. Shifting executory interest: a. Ownership passes from one grantee to another (i.e., from A to B). b. Ex: X, owner in fee, conveys Blackacre to A and his heirs, as long as the land is used as a farm, and if the land is not used as a farm, then to B and his heirs. c. Ex: X, owner of Blackacre in fee simple, conveys Blackacre to A and his heirs, but if A dies without issue living at his death, then to B and his heirs. i. Title passes from A to B if A dies without any issue living at his death. 3. Springing executory interest a. Ownership passes from the grantee back to the grantor; then, after some time, ownership passes from the grantor to another grantee. k. Fee tail (rarely tested on the exam) i. At common law, a fee tail was usually created by the words: 1. “To B (or the grantee) and the heirs of his body” ii. Inheritance was restricted to the lineal descendants of the grantee.


4 iii. It was permissible for the grantor of a fee tail to restrict the inheritance to a particular group of lineal descendants of the grantee by proper words of limitation. ** 1. Ex: A grant to a male and the male heirs of his body a. This created a fee tail male. 2. Ex: A grant to a female and the female heirs of her body. a. This created a fee tail female. iv. Lineal heirs for purposes of a fee tail are sons, daughters, grandchildren, and great-grandchildren. v. Collateral heirs include cousins, nieces, nephews, uncles, and aunts. l. Life estate i. Freehold estate where the duration is measured by the life or lives of one or more human beings. ii. Ex: X conveys Blackacre to A for life. 1. A has a life estate. iii. A life estate pour autre vie is a freehold estate where the duration is measured by someone else other than the grantee. iv. Ex: X conveys Blackacre to A for the life of B. 1. Example of life estate pour autre vie where duration of estate is measured by someone other than grantee. v. Dower 1. Widow is entitled, on the death of her husband, to a life estate of 1/3 of the lands her husband was seised in fee simple during the marriage. vi. Curtesy 1. Tenancy by curtesy is a life estate to which the husband was entitled to all of his wife’s lands. 2. Requirements: a. Husband had to be married to wife b. Wife must be seised in the land in fee simple or fee tail during the marriage. c. Wife must have issue born by the husband. d. Wife must predecease the husband. Future interests m. Reversions i. Estate remaining in the grantor who has conveyed a lesser estate than that owned by the grantor. ii. Ex: X, owner in fee, conveys Blackacre to B for life. 1. Here, a reversion back to the grantor iii. A reversion arises as a matter of simple subtraction. 1. If A has 5 apples and gives 3 away, he has 2 apples left. 2. 2 apples left, like a reversion in real property. 3. Here, X owns a fee simple estate. 4. He (X) conveys only a life estate, so hence the interest left in the grantor is a reversion.



as long as the land is farmed. a. Ex: To B for life. Contingent (not vested) 1. life estate. or is created in favor of an unborn or unascertained person. if C marries before B’s death. C has a remainder contingent upon his marriage before B dies. Right of re-entry means that there isn’t an automatic reversion of the grantor upon the happening or non-happening of that stated event. iii. 1. 3. 2. p. contingent remainder that does not vest. Possibility b/c if the event does not occur. conveys land to A. ownership reverts back to the grantor on the happening of that stated event. you have a reversion back to the grantor. Possibility of reverter (fee simple determinable) i. If the land is not farmed. Created when the grantor creates a fee simple on condition subsequent. Created where the grantor creates an expirable or a lesser estate compared to what he owns. 2. Fee tail. owner in fee. 2.5 iv. the grantor or his heirs have the option of re-entry ** v. obviously no reversion back to the grantor. Interest retained by the grantor of a determinable estate for a fee simple determinable ii. C has a contingent remainder upon X’s predeceasing both B and C because the contingency of C’s surviving X must happen on or before the termination of B’s life estate. Every remainder must be preceded by either a fee tail or a life estate. Remainders – Future interest created in a third person which is intended to take effect after the natural termination of the preceding estate. X has possibility of reverter. iii. Rights of re-entry for condition broken i. at the expiration of the life estate. Any remainder which is created in favor of an ascertained person. Created in the grantor subject to a condition subsequent. If the grantor is the owner of a fee simple estate and conveys a life estate. Created where a grantor creates a fee simple determinable o. remainder to C and his heirs. if C survives X. iii. Ex: A to B for life. the estate ripens into an automatic reversion – a possessory estate – automatic reversion back to the grantor. i. remainder to C for life. X. 1. Also called power of termination ii. a. Vested 5 . once the stated event occurs. iv. iv. 1. Rather. but is subject to a condition precedent. ii. n. Possibility of reverter.

i. C has a vested remainder. Ex: A conveys to B for life and then to C for life a. C’s remainder is vested because she is in existence. 3. ii. 1. A devises land to B for life. Remainders vested subject to partial divestment (also called remainder vested subject to open) i. Ex: A conveys or devises to B for life. ii. Ex: A conveys to B and the heirs of her body and then to C and her heirs. It must take effect before the termination of the preceding life estate – namely. Ex: A conveys Blackacre to B for life and then to C and her heirs. then to the children of B in fee. Common law standards: 6 . 6. We know it will take effect after the termination of B’s life estate. Remainders absolutely vested i. C has a vested remainder. ** ii. A remainder is subject to being partially divested when the remainderman is in existence and ascertained. then to C and her heirs. not subject to any condition precedent. and she or her heirs are certain to acquire a possessory interest on the expiration of B’s life estate. 5. 4. C has a vested remainder. ascertained. C is an ascertained and existing person. 3. a. C has a vested remainder. At the time of B’s death. a. B’s. b. B has one child. Types: a. 1. but the amount of her estate is subject to being diminished in favor of other members of a class. C has a remainder absolutely vested. a. 4. Ex: A owner in fee conveys Blackacre to B for life with remainder to C and his heirs. 2. Ex: Common kind of class gift. C. Remainder created in an ascertained and existing person that is not subject to any condition precedent except the normal termination of the preceding estate. 2. Limited to ascertained or identifiable person without words of condition and not subject to divestment. i.6 1.

Z has a vested remainder which takes effect after the natural expiration of the preceding life estate. v. iv. Creation of remainder 1. But. Here. a. then to C and her heirs. but if C dies. C’s interest is subject to open because of after born children of B because they can come within terms of the gift. 1. Preceding estate must be of lesser duration than the interest of the conveyor or the grantor. leaving no surviving children. 2. D’s interest is not a remainder. A remainder is vested subject to complete divestment when the remainderman is in complete existence and ascertained and her interest is not subject to a condition precedent. and then at the expiration of Y’s life estate.7 a. Remainder must be in favor of a transferee (usually a grantee) who is one other than the conveyor. 2. Ex: X is the owner of Blackacre in fee and he conveys Blackacre to Y. ii. b. The seisin can pass to her immediately on B’s death. Today: 7 . vi. title then passes to Z. If C dies without any children. Remainders vested subject to complete divestment i. 3. then to D and his heirs. but an executory interest. or right of re-entry. 3. but her right to possession or enjoyment of her interest on the expiration of that prior interest is subject to a termination by reason of an executory interest. power of appointment. Preceding estate had to be either a fee tail or a life estate. then ownership transfers to D. so that there may be an interest to pass on to the remaindermen. C has a remainder vested subject to complete divestment on the death of C without any surviving children. for life. The remainder must be created at the same time and in the same interest as the prior particular estate which supports it or precedes it. c. a lesser estate than the fee. Ex: A conveys to B for life.

8 1. Ownership passes from the grantor. 1 year later. C’s interest is not a remainder because it does not await the natural expiration of B’s life estate. All remainders are considered transferable and alienable (common law. life estate. 3. to C and his heirs. A. (multistate) x. a. then to C and his heirs. Contingent remainders come within the rule against perpetuities. to B. but if B becomes bankrupt. b. Contingent remainder is not subject to claims of creditors. so if B marries C. viii. Cuts short or terminates a preceding estate in favor of the grantee. From transferee to transferee upon happening of conditioned event ii. A remainder cannot take effect cutting short the prior estate. Where we have a vested remainderman. the remainderman has a right to compel the prior estate owner to pay taxes and interest on encumbrances. conveys Blackacre to B and his heirs. (multistate) q. Ex: A conveys to B for life. Modern law: Preceding estate may be a fee tail. (multistate) ix. and then happening on the stated event. Springing 1. xii. it does not apply with vested remainders. Ex: A. then there is a lapse of time – 1 year later. Executory interest – Cuts short a prior estate. Vested remainderman has a claim against prior estate holder (the life tenant) for waste. but if B marries C. xi. A vested remainder is subject to the claims of creditors. or a estate for years. Today: (multistate) 1. B has a life estate. vii. a. subject to an executory shifting interest in C. 2. i. the grantee. owner in fee. to C. that if B marries C. then B’s preceding estate is cut short and rights of possession or ownership goes from one grantee to another. Shifting 1. owner in fee. Preceding estate cannot be a fee simple estate. Here. with a reversion in A. then rights to possession of the property would revert to 8 . (multistate) xiii. however. namely C. they weren’t). then to C and his heirs. 4. contingent remainder has no such right. but after the natural termination. Ex: A. 2. C has a shifting executory interest. conveys Blackacre to B and his heirs. but if B marries C. Ownership passes from A the grantor to B. b. a.

Always in favor of the transferee. An executory interest is a future contingent interest created in favor of a transferee in the form of a springing or shifting use which. Springing and shifting uses or interests are created by deed or grant inter vivos. C has a shifting executory interest. C’s interest cannot be a contingent remainder b/c a remainder cannot follow a fee simple estate and it cannot cut short a preceding estate. but executory devises are created by will. 4. Any interest which follows a fee and is held by a third person must be an executory interest. It is always contingent and can never become vested because when it vests. Grantor to grantee upon happening of conditioned event. An executory interest therefore should never be confused with a reversion. the grantor or his heirs. the second grantee. i. i. who is someone other than the transferor or grantor. possibility of reverter. a. ** i. An executory interest cuts short a prior estate on the happening or nonhappening of a certain event. 3. Ex: If A conveys property to B and his heirs. and then after 1 year. but if B sells liquor on the premises. iv. Compare: remainder follows the natural termination of the preceding estate PMBR CD #2 III. or right of reentry for condition broken. 1. will be executed into a legal estate and which cannot be construed as a remainder. Executory devises and interests c. Elements: 1. either as a future or present interest. Cannot follow a fee simple interest of any kind b. Always involves lapse of time (even 1 day) between happening of event and the other transferee getting the interest. upon the happening of the contingency described. Right of possession reverts back to grantor for a remainder. Contingent remainder a.9 A. it ceases to become an executory interest. iii. ownership / right of possession would then pass on to C. IV. Executory devises are identical with springing and shifting interests. 2. 3. a. 9 . 2. then to C and his heirs.

In its application to wills. 10 . the grantee ends up with a remainder in fee and the remainder to his or her heirs is cut off. g. No interest is valid unless it vests if at all not later than 21 years after some life in being at the time of its creation of the interest. In a jurisdiction that has adopted the rule in Shelley’s case. There is a merger of the life estate with the remainder and B ends up with a fee simple estate and the remainder to his heirs is cut off. Only contingent interests. Rule in Shelley’s case (abolished in most jurisdictions) d. If in a conveyance or a will. Common law: i. conveys Blackacre to B for life with remainder to X’s heirs. executory interests. owner in fee. then the grantee takes both the freehold estate and the remainder. iii. with remainder to B’s heirs. i. Compare: Rule in Shelley’s case: remainder is in the grantee’s heirs. The remainder to X’s heirs at the expiration of B’s life estate. they don’t get anything and B ends up with fee simple estate. iii. iii. a freehold estate (usually a life estate) is given to a person and in the same conveyance or will. The remainder is in the grantor’s heirs. the rule in its testamentary aspect requires that the heir take by descent rather than by purchase or devise. a remainder is limited to the heirs of that person (of the grantee). ii. 1. X. VI. the remainder to B’s heirs is cut off. ii. VII. is cut off – abrogated and you then have a reversion in fee back to the grantor (X) or his heirs. i. Applies to situations where the grantor. Jurisdiction that follows this doctrine: 1. 2. 2. It was said that title by descent was worthier or better than title derived by purchase or devise. Doctrine gets its name b/c the heir takes by descent rather than devise. 3. conveys Blackacre to B for life. A descent of land barred the right of entry of the person deseised. ii. If the title were acquired by purchase. Reason for this: 1. the deseisee’s right of entry was not barred. Almost exactly the same as the Rule in Shelley’s case f.10 V. In essence. Doctrine of Worthier Title (Rule against remainders in grantor’s heirs) e. and options to purchase land in the future are covered by this rule. i. B takes both his freehold estate and the remainder. Rule Against Perpetuities h. Ex: Where X. owner in fee.

k. it’s when the testator dies.11 i. not subject to the Rule. it’s when the deed is executed. 1. i. it is not void – it’s valid. Options to purchase land that is in a lease. 2. a tract of land. If it must vest. m. Executory interests iii. Ex: Farpo owned Rosemead. then it is valid. Interests subject to the rule: i. l. “At the creation of the interest” i. As such. The deed contains the following provision: i. If the contingent interest is absolutely certain to vest or fail entirely within the period of the rule. Right of first refusal violated the rule against perpetuities because the grantor has this right or her heirs. In a deed. but rather contained in a deed instrument. The rule is directed against remoteness in vesting. and conveyed the property to Reak. the option to j. Options to purchase land that are not incident to a lease. n. had until 2222 in which to exercise this option to purchase land or right of first refusal. Sole test: Must the interest vest or fail within the 21-year period permitted by the rule. Period of the rule begins when the interest is created. Any contingent interest must vest within 21-years. Includes lives in being provided that they are not so numerous as to prevent practical determination of when the last life in being dies plus 21-years and gestation period. 2. or fail within the 21-years. The fact that the right of first refusal was given to the grantor or her heirs – we don’t know who the heirs are – until the grantor dies. 11 . Most frequently tested on the bar (multistate) a. 1. 2. then the grantee is to furnish a right of first refusal to the grantor or the heirs. If it may vest. In a will. Contingent remainders ii. ii. “Not later than 21-years of some life in being” i. it is void. 1. ii. Any contingent interest which does not meet the rule are void ab initio. Right of first refusal whereby anytime before the year 2222 the grantee has a modified offer for purchase of said premises which she is to accept. “Must vest” i.

Under the rule of convenience 1. Ex: A gift to A’s children would close physiologically at A’s death. iii. 12 .12 purchase the land in the future might violate the rule b/c it might vest too remotely. (multistate) iv. iv. Gifts which would normally violate the Rule can be saved. Powers of appointment r. If a remainder interest is given to a class of persons. no violation of the rule. Grantor’s right of first refusal here did not violate the Rule b/c the grantor was the measuring life b/c we’ll know within the grantor’s lifetime whether the land will be purchased by another. General power of appointment is considered the equivalent of ownership of property. Class can show physiologically. or 1. Powers of appointment Class gifts (Remainders subject to open) o. ii. it is deemed vested only when the class is closed and all conditions precedent for every member of the class. Right of first refusal held by grantor or heirs until sometime in the future – will violate rule. i. IX. The grantor conveyed property to the grantee and in the deed. but where right of first refusal is held by grantor and you know within the grantor’s lifetime whether the right will be exercised. have been satisfied. 3. Class closes physiologically when the parent of the class dies. the grantee had to submit the offer to the grantor and the grantor had right of first refusal to purchase the same property. The entire class gift is void if the interest of one member of the class might violate the rule. it gave the grantor the right of first refusal that if the grantee received an offer for sale of property. A class can close earlier so as not to violate the Rule Against Perpetuities. VIII. 2. Whenever any member of the class has the right to demand possession of his or her share. p. q. 1. The class closing rule – class is closed when no one born after the date can share the gift. 2. the class can close.

2. Restraint may only limit grantee with respect to time. Ownership or possession by two or more persons at the same time. he or she can exercise such power and alienate or transfer property. Joint tenancy 1. t. If one can alienate property. 2. y. Unity of time (interest must vest at the same time) b. restraints on alienation of non-freehold estates (tenancy – periodic tenancy or a tenancy at will) are commonly upheld. XI. Kind of restraint 1.13 s. 13 . mortgages – that restrict the grantee’s power to convey property to others. Restraints on alienation – provisions in deeds. u. Restraint on a person is invalid. Where you have a fee simple interest. the power to exercise the power of appointment must be within the time period allowed by the Rule. w. 3 types of concurrent estates: i. 2.-held as valid. Extent of estate 1. Promissory restraint iii. Ex: Nonassignment clause in a lease is a common example of restraint on alienation of a nonfreehold estate that is upheld as valid. In order for Rule not to be violated. Restraint may also restrain a person. iv. Unity of title (interest acquired by the same instrument) X. Restraints in Alienation v. a. Whether a particular restraint is valid depends on many considerations: i. a. A form of co-ownership where each tenant owns an undivided interest in the whole estate. Distinguishing aspect: right of survivorship – upon the death of one tenant. any direct interest on a fee simple is invalid. the title passes to the surviving joint tenant. ii. where you have lesser restraints. Partial restraint on alienation . Creation – 4 unities requires at common law: a. Preemptive rights (right of first refusal) 1. Ex: Grantee is prohibited from alienating property to certain racial or religious or social groups – violation of 14th amendment Equal Protection clause. But. wills. b. Forfeiture restraint 3. If one has a power of appointment over property. Kind of estate 1. 3. the Rule is not offended. Disabling restraint 2. Concurrent estates – Ownership or possession by two or more persons at the same time x.

Similar to joint tenancy 4.14 c. Divorced persons become tenancy in common. possession. Unity of interest (interest of the same type and duration) d. Divorce destroys tenancy by the entirety a. Typical words for creating joint tenancy at common law. Joint tenancy may be severed by a mortgage in a title theory jurisdiction or a contract to convey. A is the owner of Blackacre. Unity of possession (each of the joint tenants are given identical rights of a joint tenant) 4. in order to create a joint tenancy. a tenancy in common is created – modern law. person 6. 2. then title to the property – ownership passes – to the survivor. the joint tenancy is severed and a tenancy in common results. Where you have husband predeceasing the wife. 5. a. otherwise it will not be exercised. interests. Today. If the words joint tenants are not used. 8. a. ii. Co-ownership by husband & wife. 9. never by descent (intestacy). 5. 5 unities – husband and wife: a. Always created by a deed or will. 7. Execution by a joint creditor of both husband and wife would constitute a severance. Death destroys tenancy by the entirety 8. Where one of the joint tenants conveys his interest inter vivos. i. Tenancy by the entirety – seized of the entirety 1. There must be a clear expression of intent to create a joint tenancy. ** Under modern law. 7. Time. both spouses needed to participate in the conveyance. neither spouse could dispose of any interest held by tenancy by the entireties. joint tenancies are disfavored. In order to dispose of the property. (on the multistate) 9. a. Common law: regarded as one legal entity. title. A joint tenancy is destroyed by a suit by partition which can be brought by any of the joint tenants. A would have to state in his conveyance that he conveys Blackacre to B and C and their heirs as joint tenants. Right of survivorship a. conveys it to B and C and to their heirs. 3. b. but not today. 6. In most states. 14 .

either by purchase or otherwise ). each tenant has the right to possess and enjoy the whole of the property. iv. 6. Each tenant can dispose of his part or fraction thereof by deed or will. right of survivorship does attach. tenants and common: i. joint tenants. Rights and duties of tenants by the entireties. 10. iii. 5. A concurrent estate in which cotenants each own an undivided. Ouster  when one cotenant ousts from possession her cotenant (i. 10. Conveyance – this interest is freely alienable. that tenant may compel contribution by the other tenants. There is no destruction of tenancy in common by conveyance. separate and distinct share of the property. 4. Possession  In all forms of concurrent ownership. A tenant in common does not own the whole property as in a joint tenancy. Partition – neither spouse is entitled to have a partition at common law (but you can with joint tenancy). Rents and profits 1. a. Tenancy in common may be destroyed by partition. z. 2. ii. Tenancy in common (each holds undivided ½ interest) 1.e. Compare: Joint tenancy.. a. There is no fiduciary relationship between or among tenants in common. iii. no right of survivorship – heirs don’t take. Creditor of one spouse cannot levy on the state owned by the entirety. ** 3. 2. 9. merger (merger  when the entire title vests in one person.15 a. wrongful exclusion from possession). Each cotenant can freely convey or transfer his or her interest by conveyance inter vivos or testamentary disposition. the ousted tenant has a cause of action against the possessor not to put her out and to regain possession of the property. 7. unless there has been an ouster. Taxes 1. Where one tenant pays the entire taxes. The only unity is the unity of possession inasmuch as each tenant is entitled to the whole of each estate. Repairs and improvements 15 . No right of survivorship. 8. the ousted tenant may hold the tenant in possession for the profits collected during the time ousted. upon death of tenant in common by intestacy. Majority of estates  tenant in possession has the right to retain profits gained by the use of the property. Tenant in possession need not share profits with a cotenant out of possession. If there is ouster.

B/c it involves a conveyance in land. In most states. 2. Most courts treat leases as contracts rather than conveyances (even though a lease involves both elements). then the court may make an equitable division of the proceeds and the court will take into account expenditures made by one tenant by way of an accounting.16 1. Lease must be in writing and must contain the following elements to satisfy the Statute of Frauds: i. If a lease provides for payment of an annual rent on the last day of the XIII. Minority of states – title theory: i. Describe the leased land iii. a contract to convey results in the severance of the joint tenancy despite the fact no conveyance actually occurs (contracts to convey – in equity. it comes within the Statute of Frauds and must be in writing to be enforceable. equitable interest in the property). A mortgage is regarded as a lien and one joint tenant’s execution of mortgage does not result in a severance. 2. Mortgages aa. XV. XII. Rent is viewed as the consideration paid by a tenant to her landlord for the use and enjoyment of the land. Modern leases contain many covenants – impose contractual obligations on the part of the landlord and tenant ii. Leases cc. rent is not apportionable as to time – it does not accrue from day to day. Majority of states – lien theory: i. Set forth the amount of the rent that needs to be paid gg. 16 . Landlord-tenant law ee. ff. Contract aspect i. Tenant’s duties i. A tenant has no right of contribution against other tenants with regard to repairs and improvements that one has made on the property. A mortgage is regarded as a transfer of title and destroys or severs the joint tenancy. Majority: A lease does not effectuate a severance of the joint tenancy Contracts to convey dd. bb. But if a partition has been had (in equity court – action or suit for partition). hh. XIV. (essay) i. When rent accrues – at common law. Leasehold involves a conveyance of an estate (conveying right to possess property to another person for a limited period of time) and also constitutes a contract. State the term of the lease iv. Duty to pay rent 1. Must identify the lessor and lessee ii. as does interest on money loans.

Material breach of the landlord which violates the tenant’s in quiet covenant of quiet enjoyment if it 17 . Where entire leasehold is taken by eminent domain (all of the leasehold condemned for full balance of the lease term). Destruction of premises 1. the tenant’s duty to pay rent is extinguished. by the condemnation of part of the leasehold premises does not relieve the tenant of the obligation to pay rent. then the tenant’s leasehold interest merges with the fee. 3. Extinguishes tenant’s obligation to pay rent. 1. storms. Ex: If lease provides for annual rent on last day of calendar year & lessor accepts surrender of leasehold for that portion of the year. Where there is a partial or temporary taking – if it’s for a short period of time or for a period less than the remaining term or if only a portion of the rented property is condemned. ii. Ex: Landlord leases office building to tenant and there’s a large parking lot with the agreement and if the parking lot is condemned. this does not relieve the tenant of obligation to pay rent. she can collect no rent for any portion of such year. b. relieving tenant’s obligation to pay the rent. the tenant is not discharged from her obligation to pay rent. Expiration of the lease 4. etc. 5.17 calendar year and the lessor accepts a surrender of the leasehold at any time of the year. Merger a. At common law. Constructive eviction a. ** iii. Where the tenant acquires title to the property (purchases the property). Entire taking of leasehold or partial? i. a. or other natural events. Rent is extinguished by eminent domain. Rent is extinguished or suspended by: 1. tenant remains liable to pay rent even though because of fire. Release by the landlord 2. Eminent domain – takes both the leasehold and the reversion a. the lessor may not accept rent since rent does not accrue from day to day.. ii.

this would constitute voluntary waste. i. b. Note: a tenant is not liable for ameliorating waste b/c it increases the value of the land. Ex: Where a tenant razes an old outmoded building on premises and erects a modern building which raises the value of the property from $50. Tenant cannot commit waste on the leased premises.18 renders the premises uninhabitable. Frustration of purpose a. sole use of the premises becomes illegal – lease premises for the sale of raccoon furs and then the state enacts a statute prohibiting the sale of raccoon furs – making it illegal.. Express agreement of the parties where the landlord gives the tenant permission to surrender. Ameliorating waste 1. such as exploiting minerals on the land (or removes timber of the property) unless the land was previously so used or as so provided in the lease. b.000. Relieves tenant’s duty to pay rent. Duty of repair a.000 to $200. Voluntary waste – Life tenant or tenant for years 1. Injury of premises or land caused by an affirmative act of tenant. c. ii. Tenant has an affirmative duty to make ordinary repairs on the premises. then the tenant must quit the premises in a timely fashion in order to be relieved of the duty to pay rent. Modern law. Change in the physical characteristics of the occupied premises by an unauthorized act of the tenant. the frustration of purpose would relieve tenant of his or her obligation to pay rent). this relieves tenant of his obligation not pay rent. 6. 7.g. 2. but which increases the value of the land. 18 . Surrender a. 8. 3. Complete or almost a complete frustration of purpose (e.

wants to raze this 6-story apartment building. but no damages. Ex: Where the tenant is about to commit an act which constitutes equitable waste. fee simple owner. Ex: A is the fee simple owner of Blackacre. Injury of premises or land caused by tenant’s failure to act when a tenant is under a duty to act. the equity court can enjoin the tenant from doing that act. 4. water enters the premises and damages the hardwood floor. Where you have the expression “without the impeachment of waste” in the lease. 2. Injury to the reversionary interest in land which is inconsistent with good husbandry and is recognized only by the equity court and does not constitute legal waste.19 iii. A tenant is under obligation to make ordinary repair and in this situation the tenant is liable for the damage or the permissive waste that has injured the property. Ex: There is a leak in the roof and it’s raining outside and water is pouring down – one of the shingles is detached which causes the roof to leak and a rainstorm. then you’re having a situation dealing with equitable waste. 2. granting B a life estate in the apartment building. Equitable waste 1. B would be enjoined if she threatened to raze the apartment building and construct a single family home b/c this would cause 19 . B. On Blackacre. 3. Say. ** iv. B can collect the rent with respect to the rents of all of the tenants in the apartment building. there is a 6-story apartment building…we have A. Permissive waste 1. conveying the apartment building.

a. assignments. trespasser. 1. ii. Duty owed to invitee: 1. jj. 5. tenant duties. subleases. there is an implied covenant of quiet enjoyment. iii. A lessee does not acquire the legal interest in the premises until he actually takes possession in the property. 20 . then the possessor has duty to warn the tresspasers of known dangerous conditions which the trespasser would not normally discover himself or herself. Tenant’s tort liability – duty of care to licensees. the tenant’s exclusive remedy is against the wrongdoer and the tenant has no action against the landlord.20 injury to the reversionary interest to the grantor or grantor’s heirs. B. Landlord’s duties kk. English rule (common law rule): Landlord impliedly warrants that the tenant will have the legal right to possession at the beginning of the leasehold term 1. iv. 2. would not be permitted to raze the 6-story apartment building and build a single family home. Duty to inspect and make safe. invitees. in order to determine the duty of care which a possessor of land owes a licensee. In the event there is a trespasser or a holdover tenant (tenant at sufferance). ii. A tenant. invitee. this would constitute equitable waste and this would be enjoined by the court in equity. Duty to deliver possession of premises i. For a licensee. usually tested on landlord duties. In every lease. the duty of care generally owed is the duty to warn of known dangerous conditions. Tenant’s only recourse is to evict or go after the wrongdoer. Normally. Then. Contrary to the American rule b. Landlord duties a. no duty of care owed to trespasser unless an anticipated or discovered trespasser. granting a life estate here would have to include the words “without impeachment of waste” in the conveyance. (multistate) PMBR CD #3 XVI. ii. trespassers i. Bar exam  question dealing with landlord – tenant law. American rule: Landlord does not have obligation to actually delivery possession of premises to the tenant. Generally.

The tenant may quit the premises in a timely fashion and no longer be obligated to pay rent. landlord is under no duty to repair. A landlord may be liable where the landlord undertakes the repairs (the tasks of making ordinary repairs) and does so in a negligent fashion. 2. ii. Doctrine of caveat emptor prevails (“buyer beware”).21 i. not a landlord. there is a hidden defect which the landlord knows about or should know about and which the tenant is not likely to discover. h. Tenancy for a term – tenancy for years XVII. Leasehold estates i. a. Eviction by the landlord reaches the covenant of quiet enjoyment and relieves the tenant of his obligation to pay rent. ii. a landlord may be liable for the tenant. At common law and in absence of lease covenant or statute. invitees. Exceptions: 1. iv. This covenant ensure the tenant that his possession will not be disturbed by someone with a superior legal title to the land including the landlord.3. See Restatement 2d § 4. i. if at the commencement of the lease.html) c. Landlord is not liable for dangerous conditions existing on the leased premises. guest. Rationale: Landlord is liable where he or she has enticed the lessee into a trap. Landlord is under no duty to repair. Where there is a completely furnished dwelling. e. Constructive eviction results from conduct or neglect on the part of the landlord which renders the premises uninhabitable.cornell. Duty to deliver possession f. there is a hidden defect. ( landlord in a lease for a short period of time for a completely furnished dwelling impliedly warrants fitness of the premises and the furnishings. 21 . then the landlord may be liable in tort from the resulting injuries. iii. Actual eviction occurs when the landlord or paramount title holder excludes the tenant from the leased premises. If injury results from defects. a. Where there is a hidden defect – if at the commencement of a lease. Tenant is under a duty to repair and to perform ordinary repairs. the tenant or other people entering the premises may recover against the landlord. Quiet enjoyment g. Landlord does not impliedly warrant that leased premises is particular purpose. Premises suitable for particular purpose i. d.1-4. i.

1. Liability of a holdover tenant: 1. Once tenant at sufferance is removed from land. then from relation back to period of wrongful holdover period to the landlord as trespasser. iii. so she transfers the remaining 2years under her tenancy for years to her friend. Absent no prohibition restricting or prohibiting transfers in a lease. ii. etc. 2. iv. 4 years. l. Periodic tenancies i. but automatically renews( week to week. Tenancy arises where you have a holdover tenant. iii. where she has retained any part of her leasehold estate. Ex: Landlord leases premises to tenant for 5-years. etc. Judy. Tenancy does not terminate at the end of each period. ii. she has made an assignment. Continuing type of tenancy and not the inception of a new tenancy at the beginning of each period. a. 2. ii. Tenancies at will i. a tenant may transfer her leasehold interest in whole or in part. Ex: 30-day notice period and one of the parties gives 29-days. Tenancy from month to month. After Year 3. notice is not effective. m. if notice is not in compliance with the statutory compliant. Tenancies at sufferance i. etc. If she makes a complete transfer of her entire remaining estate. month to month. she’s been in possession for 2. Tenant is transferring the entire remaining balance to her friend Judy. then the transfer is a sublease. i. week to week. This would be an assignment. Automatic renewal: 1. where a tenant wrongfully remains in possession after the expiration of the lawful tenancy. 5 years. Cathy has a job position in CA for 1-year (internship). unless one of the parties give notice of his or her intent to terminate. ii. it is ineffective. 22 . she now j.22 i. 30-days notice (usually statutory).). iv. An estate that is terminable at the will of either the landlord or tenant. Common law – can be terminated without advance notice (unlike periodic tenancy). Fixed duration set forth in the lease – 6 months. Ex: 5-year tenancy. tenant decides to go to Europe and tenant is planning on staying in Europe for the rest of her life. iii. After Year 2. Failure to give notice to terminate: 1. Continues indefinitely until terminated by one of the parties. k. then automatic renewal. the assignee. Conversely. If no termination (that’s valid).

. ** vii. Effect of assignment by tenant (assignor). vi. Second assignee will be in privity of contract and privity of estate with the landlord.23 wants to transfer…leave the state for 1 year…but she plans to reoccupy her apartment for Years 4 & 5. covenant to pay rent). c. Where the assignee reassigns her interest. There may be privity of contract where the first assignee has expressly or in writing has assumed the covenants under the lease. such as the covenant to pay the rent. b. There is both privity of estate and privity of contract. the original tenant (original lessee) remains in privity of contract and in privity of estate with the landlord. But there is privity of contract (i. A sublease creates no legal relationship between the landlord and subtenant. 2.e. and unless the first assignee has assumed the covenants under the lease. Effect to pay rent: 1. There is no longer privity of estate between the tenant and landlord. However. There is still privity of contract between the tenant and landlord. Tenant and sublessee – no privity of contract and no privity of estate. Q: Between the assignee and landlord after an assignment? a. 23 . 1. 2. 2. so she enters into a sublease with her friend where she transfers the premises to her friend for 1-year…since she retains part of the leasehold. 3. Assignee is bound to perform the original covenants in the lease and is held liable to the landlord… because these covenants run with the land and are based on privity of estate and privity of contract. the tenants and landlord – no privity of estate. You have an assignment and a leasehold agreement entered into between tenant and landlord and then the tenant assigns his rights to the assignees – this is where the tenant transfers her entire remaining balance under that leasehold. then there is no privity of contract either. v. b. the tenant is still in privity of contract with the landlord even where you have an assignment. Q: What about a second assignment? a. ** 1. in which case. The original tenant remains the landlord’s tenant and the sublessee is the tenant of the original tenant (his landlord). 4. her privity of estate ends **. then the transfer constitutes a sublease.

A landlord can convey his ownership interest in the premises or the property.e. 1. viii. Chattel which becomes real property. They are removable by the tenant – tenant for life. Chattels annexed to the land by the tenant for pecuniary gain during her tenancy. Rights in the land of others – nonpossessory interests or incorporeal interests in real property 24 .24 5. The chattel must be appropriated for the purpose for which the land is to be used. II. Lease covenants: 1. 3. Various considerations in determining the intent of the annexor: a. 2. The relation which the annexor has with the land. ** e. tenant for years. Recognition of the new landlord by the tenant is called attornment. Fixture n. A covenant that prohibits subleasing does not prohibit assignment and vice versa. Landlord’s reversionary interest is assignable. (multistate) o. The sale of an occupied apartment building constitutes such a transfer. whether the annexor is a licensee. Assignment of the landlord 1. a. Completeness with which the chattel is integrated with the use to which the land is being put. Manner of annexation to the land c. It must be the intention of the annexor that the chattel become a fixture. In a lease. Covenants against assignments or subleases are strictly construed. ii. c. you may have a clause prohibiting assignments or subleases. ix. For a chattel to become a fixture: i.. ii. Injury to the land d. Many leases contain these clauses not to do these things without the consent of the landlord. tenant at will. tenant at will. 4. 2. These are strictly construed. The chattel must be annexed to the reality either actually or constructively. XVIII. The original tenant therefore remains obligated under the covenants in the lease (i. covenant to pay rent). Trade fixtures i. b. Nature of the article b. iii. or the owner of the property. p.

timber. 1. dominant tenant) has the right to enter onto the servient tenement and has the right to make use of that tenement for ingress or egress. Ex: You grant someone an easement for ingress / egress – to use a walkway. ii. If Smith gives Jones the right to enter onto the servient tenement for ingress and egress. Easements in gross a. If Jones conveys his property to Baker. but only has right to enter the person’s property and make limited use – ingress or egress. Easements appurtenant a. Easement appurtenant runs with the land (adjoining tracts of land). Servient tenement is the land subject to the easement. such as sand. The right of one person to go on land in possession of another and make limited use of that property. Q: What happens if Jones conveys his property to Baker and Smith conveys his property to Carl? a. Baker can enforce that easement against Smith or Carl. b. Easement in gross – you don’t have 2 adjoining tracts of land. It is the owner of the dominant tenement (a. Easement holder does not have right to remove substance in the property. b. d. i. b. Profits a prendre / profits: 1. 25 . 2. Ex: Jones is the owner of the dominant tenement. Two types of easements: 1. iv. iii. Smith is the owner of the servient tenement. Profits i. The right of one person to go onto the land of another and extract or remove something therefrom.a.25 a. one parcel of land burdened with the easement. Requires 2 parcels of land – dominant tenement and adjoining servient tenement. such as for ingress or egress. Easements i. Easement appurtenant runs with the land because it can be enforced by or against successors in interest to the original contracting party. c.k. or vegetable.

Negative easement prevents the servient tenement owner from doing some act or making a particular use of his or her property. no adjoining dominant tenement. 2 basic classifications of easements: a. that easement is going to run with the land and is going to burden the land as far as Smith or any successor in interest may be concerned. Jones is the owner of the property and Jones conveys the property to Smith. Certainly. is the owner of Blackacre. located between the ocean and A’s property. iv. Ex: You only have a servient tenement subject to easement. A owns Whiteacre. Ex: The City constructs a sewer line in your backyard. that K comes within the 26 . Easement in gross is personal – it is intended to benefit the holder personally. rather than in connection with any land that owner may own – here. b. Ex: City installs a sewer line across your backyard or a city installs telephone lines across your front yard. Prevents the servient tenement owner from doing some act or making a particular use of her land. ii. v. Easement in gross can run with the land. B agrees in writing not to construct any structure on his property that interferes with A’s view of the ocean. the dominant tenement holder where you have an easement appurtenant) to make some affirmative use of the dominant tenement. Ex: B. B has a negative easement – B is promising to refrain from building on his property so that A’s view of the ocean will not be impaired. Negative easement i. Affirmative easements i. Entitle the easement holder (usually. 3. i. iii. 4. ii.26 i. Creation of easement a. It comes within the Statute of Frauds – where you have a K for a sale or transfer for an interest in land. An easement is an interest in land.

Easement is an interest in land. 2. Y. Ex: Baker owns a 100-acre tract of property and decides she is going to subdivide her property and sell off 100 1acre lots to various buyers. Easements by implication (or necessity) 1. if Y. and therefore must be in writing – deed or other similar type of written instrument. The only access Y has to the highway is over U’s land. conveys this lot to Y. but in Y’s deed. U. no mention is made as to an easement for ingress or egress over U’s land. a. Easement by implication can arise by grant or by reservation a. 2 types of easements not in writing: i. Where Baker is the owner of this subdivision and baker. Baker sells these individual lots to X. Y has an easement by implication over U’s property by ingress and egress. Also called an easement by necessity. Where you have a subdivisional scheme. the grantor. 2. b. There is a highway bordering on the eastern tract of the property. Usually. implication arises where reasonably necessary or strictly necessary for the benefit of the dominant tenement owner. 1. Baker sells this lot to Y. S. who is the dominant tenement owner. It usually must be created in a writing in order to be enforceable.27 statute of Frauds and it must be in writing in order to be enforceable. Here. is to be benefited by the easement across U’s property 27 .

Even though there was no mention of the easement in C’s deed. Open 3. sells this lot to C and Baker retains these three lots here. this is an easement by implication. Easement may be extinguished by: 28 .28 where Y is the grantee. The grantee simply has to show that the easement was reasonably necessary. Use must be continuous for the statutory period v. it is the grantor who is benefited by the easement. Adverse use a. For the grantee. we would say that if Baker’s only access to the highway is by the property. e. Baker’s only access to the highway is across C’s property. Prescriptive easements (easements by proscription) 1. owner of the property. Notorious 4. then this is an easement by grant where the easement benefits the grantee. the easement benefits the grantor. Continuous 5. But. Use must be without permission (nonpermission) 2. In order for the grantor to have an easement. ii. where you have an implication by implication or implied reservation. c. Ex: Baker. grantor is to show that the easement is strictly necessary. d. the grantee only has to prove that the easement is reasonably necessary. In this situation. b.

used that easement and trains traveled over that tract of land. Excessive use – then it is up for the servient owner to bring an action of equity to curb the excessive 29 . he gave the B&O RR company an easement over the northern half of his property to run the railroad lines. (tested on the multistate) 2. e. f. back in 1950. d. The easement will be extinguished if B&O removes the tracks – this will show nonuse coupled with an intent to abandon – this will extinguish the easement. then the easement is extinguished by merger. Written release a. this would be sufficient to terminate an easement. Where the fee simple title to both the servient and dominant tenements come into the hands of a single person. The B&O RR Co. Where the holder of the benefit of the easement – the holder of the benefit easement (normally. b. no matter how long continued. Ex: Baker owns a large tract of land and many years ago. Merger a. d. Say Baker has the easement / right to enter Able’s property for ingress / egress. 3. will not extinguish an easement. Excessive use does not forfeit or extinguish the easement. c. Abandonment a. the dominant tenement owner) may execute a release terminating the easement. Ex: Where both the dominant and servient tenements come under single ownership. B&O has decided not to run its trains over that line and is no longer using the easement. Where you have nonuse coupled by the intent to abandon. Clear showing by the dominant tenement owner that she intends to abandon the use will extinguish the easement. acquiring title to both parcels of land. This is the servient tenement which is owned by Able. but within the last 5 years or 7 years. c. Mere nonuse. Let’s say that Able purchases Baker’s land in which case Baker’s easement is extinguished by merger. Ex: Dominant tenement owned by Baker. This mere nonuse will not extinguish the easement. Where the servient tenement owner purchases the other parcel of land. b.29 1.

Condemnation / eminent domain a. Prescription a. seeking injunctive relief in order to enjoin the excessive use from continuing. The easement is then extinguished by prescription. B has a right of way over A’s Blackacre and tells A that he has no intention of using the right of way again and has not used it for several years. A then goes build a house over B’s right of way.e.. (multistate) i. 5. Same rule applies to profits.30 use. B says I have a right of way. Where you have the termination of a profit or easement by condemnation. c. 30 . Example of estoppel. An easement can be extinguished or terminated by prescription – when the servient tenement owner has used her land continuously and uninterruptedly for the statutory period of prescription in a way that is inconsistent with and adverse to the easement and without the consent of the dominant tenement owner. Estoppel a. B has seen the construction – the house being built everyday. uses the servient tenement in a manner inconsistent with the use of the easement. i. I’m going to continue to use that roadway for ingress or egress. then the profit holder or easement holder is entitled for compensation 4. that goes beyond the conditions of the easement. B will be estopped from using the easement. then this will extinguish the easement. Destruction of the servient tenement a. this will extinguish the easement. the holder of the easement (dominant tenement owner) is entitled to compensation for value lost. Where the servient tenement owner in reasonable reliance of the conduct or oral assurances of the dominant tenement owner. b. b. 7. this will result in extinguishment of the easement by estoppel. Modern view: Where you have termination of an easement by condemnation or eminent domain. staircase or hallway for purposes of ingress or egress) and there is an involuntary destruction of the structure (by fire or flood). Where you have condemnation of the servient estate. 6. If the easement is in a structure (i.

Equitable servitudes PMBR CD #4: XIX. A gives B permission / a license to enter Blackacre to remove the potatoes. If you had to pay for the parking. where you don’t have to pay. b. iii. It is merely a privilege. etc. they can evict you from the stadium. your sitting in your seat at the stadium is a license.e. Profit holder or easement holder not necessarily owner of property (just right to exploit). a license is not an interest in land. but where the license is coupled with an interest. 1. Mere permission to come on to land of another without being viewed as a trespasser. If a license is coupled with an interest. d. 1. and you go shopping. Licensee never had possession of the land. c.). If you park your vehicle on someone’s property. Covenants running with the land e. A license is generally revocable. If you misbehave (throwing things at players. ii. the purchase of the potatoes). A license is not the same thing as a lease. a revocable privilege. Ex: You’re a sports spectator and you go to watch the baseball team play. then arguably now this interest could be viewed as a contract or it could be viewed as a license coupled with an interest that could make it irrevocable. Licenses a. This is a license – mere privilege to park your car would constitute a license. 31 . park your car. Generally. i. Ex: A is the owner of Blackacre and A sells B 100 bushels of potatoes which are stored in a shed or warehouse on Blackacre and at the same time that A sells B 100 bushels of potatoes. Unlike an easement. Licenses i. Property interest in sitting in the seat – license.. where you have a mall-type facility. B has a irrevocable license b/c B’s right to enter into the property is coupled with an interest (i. it is irrevocable. 2. 1. iv. at the option of the licensor to come on to the land for that limited purpose.31 for the value that is lost. it is irrevocable. this is a license. Ex: If you go to a shopping mall (the Beverly Center) and you go into the parking lot and in the mall facilities. The license is revocable. Here. c. a license is revocable. Tort classification – invitee (paying customer) (tort law). you pull your car in. d. Duty of care to inspect and make safe for you (owner owes you this).

An easement generally must be a writing complying with the Statute of Frauds. Breach of convenant is similar to breach of contract. One of the contracting parties succeeds to an interest in the land of another. Nonbreaching party brings damages to recover for breach of contract or covenant. Generally enforceable with actions at law. 1. Grantor is succeeding to estate of landlord. Easement – substantial. Covenant running with the land may be extinguished by a. iv. does not have to be in writing. Covenant must touch and concern the land. Covenant must make the land more value (increase utility) or less valuable (or curtail the use). 1. does not have to comply with the Statute of Frauds. Hybrid between a contract and an easement. More than just a personal contract. ii.32 ii. i. i. l. A covenant running with the land is attached or connected with the estate since it may be enforced against or by someone who was not one of the original parties – it may be enforced by successors in interest to the original convenantor and convenantee (original convenanting parties). but less than an easement in the sense that a covenant is not an interest in the land. then the intention is clear that the covenant was intended to run with the land. 32 . A license is not the same thing as an easement. h. n. may seek injunctive relief. There must be privity of estate between the parties. iii.Damages may be inadequate. ii. Breach of contract recovers money damages. m. noncorporeal interest in the land of another. It must be the intent of the convenantor and convenantee that that convenant run with the land. But sometimes -. e. Lessee or a tenant always has possession of the land. Abandonment XX. Ex: Privity of estate between a landlord & tenant. privity of estate between grantor and grantee. i. Covenant running with land may be extinguished in the same way as an easement or profit. Terminated i. Covenants running with the land f. i. k. There must be a covenant which must be in writing which is signed and complies with the Statute of Frauds. Licensee simply has mere permission to enter onto the land. i. j. License is not an interest in land. iii. ii. g. Merger b. As long as the words “assigns” or “successors” is used in the instrument. Grantee is succeeding to estate of tenant. i.

1. Release Equitable servitudes o. Baker wants to restrict the common development scheme and in the deed to 90 lot owners. Baker is the owner of a 100-acre tract of land and subdivides the property and intends for a common development scheme that this subdivision will be restricted to residential use or restricted to only building single family homes. ii. recorded with the Recorder’s Office).33 c. The intention of the parties determines who may and who may not enforce the equitable servitude. he contains restriction saying restricting use of lot to residential use only. Inquiry notice i. one who purchases lot of land would be on constructive or record notice of the restriction. 1. 2 years later. There must be a writing. complying with the Statute of Frauds. 2. You have to have notice. p. 33 . 3 requirements must be satisfied: i. Restriction on the use of land enforceable in equity. In this type of restriction. XXI. Constructive notice (record notice. Actual notice b. Therefore the lot owners may be bound by the equitable servitude. Cannot be enforced by a person who gives value but has no notice of the servitude. namely a BFP. q. each of deeds have this restriction. We have a subdivision scheme or common development scheme. Baker than develops and sells off these last 10 lots but fails to include any mention of the restriction. question probably deals with equitable servitude. Estoppel d. Equitable servitudes may be established in common development schemes. The transferee or grantee must take the land with either actual or constructive notice of the existence of the servitude. Intention on the parties to bind the land with this servitude. 2. In order to have an equitable servitude. Notice may be: a. Baker sells 90 lots. c. Equitable servitude usually arises in these common development schemes: i. iii. Multistate  if you see a common development scheme. Notice. these lot owners may still be bound with the restriction even though it’s not in the deed b/c they’re deemed to have inquiry notice (they should be aware of the common developmental scheme) since all other lots have this restriction residential scheme. ii. declaration of restrictions in subdivision or common development scheme. Say.

i. It doesn’t even have to be adjacent lot owners. Where all of the lot owners get together and execute a formal agreement themselves. all of the other lot owners have constructive notice and are bound by the restriction. Person acquiring the property must take the land with actual or constructive land of the restriction.34 iii. Privity of estate is not required for an equitable servitude. they are put on a inquiry notice. covenant running with the land: 1. Multistate: i. retains some lots himself or herself…you have situation of inquiry notice where people that buy the last lots even though they don’t have notice of equitable servitude. v. What is the remedy? 1. 2. b. If you see a restriction and you aren’t sure whether it should be enforced as a covenant running with the land or equitable servitude: a. 1. sell those off. One lot owner to bring suit to enjoin the nonconforming use from being made. Where remedy is an action brought at law for money 34 . Equitable servitude vs. If remedy is in equity. Where this is done. Declaration of restrictions a. evincing an intention to restrict the use of the lot in the subdivision for residential purposes. this is an equitable servitude – b/c this is a restriction in equity. Explain both covenant running with the land and equitable servitudes. Where the grantor or person who is developing common development scheme files a declaration of scheme with the recorder’s office – evinces intention to restrict the use of lots in the subdivision for residential purposes and sets forth intention to set up a comprehensive scheme for the subdivision – covenant running with the land. Covenant running with the land: i. Where the owner in a subdivision places restrictions on some of the lots. Privity of estate is required. Where the grantor files this with the recorder’s office. d. 3 methods of imposing: 1. b. c. 3. the restriction is usually an equitable servitude. it is each lot within the tract that is going to be bound by such restrictions. Where you have this declaration of restrictions. 2. iv.

3. ii. iv. notoriously. Rights incident to possession and ownership of land r. etc. Can be extinguished or terminated by release. then he can acquire title by adverse possession and divest the rightful owner of the right of property.). Adverse possession doctrine is based upon the statute of limitations for recovery of real property. Use must be adverse (without permission) 2. 35 . openly. iii. Changed neighborhood conditions may also operate to terminate an equitable servitude. i. Extinguishment of equitable servitude: 1. ii. Adverse possession i. Statute of limitations operate not only to bar one’s right to recover real property held adversely by another but may operate to oust adverse possessor with title to the property as though he had received a conveyance by deed. iii. merger. etc. where purpose of servitude is meaningless. If the owner of the property is still occupying the land. abandonment. then your use (adverse possessor’s use) is not actual and exclusive. adversely without permission. then change in neighborhood conditions will extinguish an equitable servitude. or gas station built on neighborhood. Sole. Actual and exclusive a. The use must be open and notorious (not secret and clandestine) XXII. Requirements: 1. this results in extinguishment in equitable servitude.35 damages. Zoning changes will not terminate an equitable servitude which are inconsistent with the restrictions in the common plan. continuously and for the statutory period (for the statute of limitations). Where the purpose of the servitude becomes meaningless or impossible of attainment b/c of changed neighborhood conditions. Ex: Somebody occupies property of another. you must have covenant running with the land. physical occupancy b. The use must be hostile and adverse (without permission) 4. 2. Tested: a. vi. Ex: Change in neighborhood conditions (commercial development – office buildings.

v. Adverse possessor must present to the world that he or she is the owner of the property. i. oral contract. The use must be continuous and without interruption for the statutory period – 7-years. a. deed. Limitation of adverse possessor’s claims: a.36 a. imprisonment or insanity. 2. All elements must exist in order for adverse possessor to take title away from the rightful owner. 6. No one claiming less than a freehold estate may get title by adverse possession. The period of adverse possession may be tacked on by one adverse possessor to another. Adverse possessor cannot acquire a larger estate than he or she claims in the property. will. or mere permission. then he may not acquire a fee simple title in the property. Statute of limitations is for example 10years or 20-years in fact pattern. is given by statute – most states permit a person under the disability to toll (stopped) the running of adverse possession until the disability is removed. Must claim a life estate. 20-years. Use must be peaceable (no forcible physical eviction or eviction by court action). Tacking: There need not be continuous possession of the property by a single individual. fee tail. For the statutory period. Facts say 36 . i. One who is under a disability whether due to minority. Adverse possessor cannot claim title to less than a freehold estate. i. Disability a. i. written contract. d. b. or a fee simple. Privity exists between adverse possessors if the interest of one is passed onto the other by descent. e. oral gift. as long as there is privity between the two individuals. Frequently tested on bar exam: 1. Statutory period on adverse possession begins to run when a cause of action accrues against the adverse possessor. 5. Ex: If the adverse possessor only claims a life estate in the property. 7. Recording statutes have no application to adverse possession. etc. c. ii. At the time of the accrual of the cause of action by the adverse possession.

Where you have disability. 4. Recording statutes don’t have application to title acquired by adverse possession. ii. The possession alone. you can still acquire title via adverse possession. Where the adverse possessor wrongfully believes he’s the rightful owner. Tolling – takes into account the disability. such person shall bring such action within 10 years after the disability has been removed. that person has an extra period of time (ex: 10 years after with which to bring an action against the adverse possessor). Visible adverse possession + intent to possess constitutes adverse character and not the subjective belief of the adverse possessor. Title acquired by adverse possession is a substantive law title (good as gold). i. or in prison. a. i. is what is important.37 that this jurisdiction has this statute in effect – the statute which tolls the running for removal of disability is phrased in this fashion: “an action for the recovery of land shall be commenced within 10 years or 20 years after the right of action first occurred. 3. Minority view: Possessor does not hold title adversely unless the person intended to hold the property against the whole world. s. continuously for the statutory period under mistaken belief that he or she is the rightful owner of the property.of unsound mind. but if a person entitled to bring such action at the time the cause occurs is within the age of minority . not the subjective intent of the adverse possessor. including the rightful owner in order for adverse possession statute to run. a. notoriously. b.” 1. you don’t have the subjective intent to adversely possess. Lateral and subjacent support 37 . Majority: If you have an honest mistake. Honest mistake: Where a person occupies property of another openly.

one only needs to be an owner of riparian land. then the D is liable for the damage which naturally and proximately flows from his negligence. iii. Each riparian owner has a fundamental right to have the stream or lake remain substantially in its natural state. 2. English rule + American rule: a. Recovery is limited to damage to the land and does not include damage to the artificial structures on the land. Right of lateral support: 1. t. such as a river) 2. To be riparian. Land in its natural condition without any buildings or artificial structures by excavation or otherwise withdraws lateral support from his neighbor’s land is absolutely liable reliable of negligence – absolutely liable for damage caused to the land. Recovery would include both damage to the land and damage to the artificial structures. vi. ** iv. Subjacent support: 1. Lakes and streams on the surface 1. free from any unreasonable diminishment in quantity and free from pollution. Same rules apply (right to below the land. English rule (minority rule – minority of states): a. 3. Natural flow theory a. 38 . If one excavates and this releasing semifluid or semisolid material from his neighbor’s land causing his neighbor’s land to sink. v. Interference with underground water. American rule (majority view) a. including recovery for damage for both land and artificial structures. Where you have artificial structures on the land and the land in its natural condition would have been injured by the taking away of lateral support: 1.38 i. Riparian water rights (riparian land – land with natural watercourse. vii. there is liability. ii. Water rights i. Right of landowner to have land supported laterally by neighboring land is an inherent land. Negligent excavation: 1. as opposed to the sides) as lateral support. If there is negligence on the part of the excavator / wrongdoer who removes lateral or subjacent support. this doctrine is predominant in a majority of states – all attracts of land which abut or touches lakes or streams is riparian.

A’s use reduced the water level by 6 inches…violating natural flow theory. under the reasonable use theory. Each riparian owner may use the water for any beneficial use. However. an injunction would issue b/c B has the right to have the level of the water maintained. the injunction would not be granted b/c B can show no injury to himself as a lower riparian b/c in the facts…plenty of water left for the lower riparians. Natural and artificial uses 1. However. Ex: (multistate) a. there is plenty of water in the stream to support all of the uses to which the lower riparian can put the water use to. Under the natural flow theory. Domestic purposes (gardening for example) 2. Consumption uses c. Each riparian owner has a fundamental right to make maximum use of the water in the lake or stream provided that such use does not unreasonably interfere with the like use of other riparians. Mining d. The diversion of the water causes the level of the water to go 6 inches below its natural or normal level. Industrial uses 3. ii. Natural uses – uses necessary for daily sustenance of human beings: a. Irrigation b. along a stream of water. 5. Use of water for natural purposes is paramount and takes precedence over use of the water for artificial purposes. 39 . A. Majority rule a. an upper riparian. either on riparian or nonriparian lands. diverts the water from the stream for the purpose of irrigating his riparian and nonriparian lands. Artificial uses a. Each riparian may use the water for natural or artificial uses so long as he or she only uses it on riparian land and only does sensibly so as not to affect the quantity or quality of the water. Household uses b. so long as he or she does not unreasonably interfere with the reasonable use of other riparians. Power c. 4.39 b. b. Reasonable use theory a.

are owned by property line of adjoining landowners. Whoever makes prior rights of the water. the prior use of the water is protected. In these western states that follow this doctrine. 2. etc. Landowner has unlimited discretion in dealing with surface waters – can build dikes or drain the water – and not be held liable to his or her neighbors. b. If withdrawal of percolating water affects adversely the neighboring land owner. 3. They are considered to be a natural part of the land / real property. Surface waters = common enemy c. Surface rights (& subterranean rights) & above surface i. If the surface owner makes unreasonable use of the water which affects neighboring land. Surface rights include natural vegetation such as trees. Subject to absolute ownership and control of the surface owner (common law). shrubs – these are viewed as being fructus naturales and are considered to be part of the land. the beneficial use is protected. 40 . Common law rule (common enemy rule): a. no reasonable rights. Trees. One exception (minority view): i.. Surface waters 1. Prior beneficial use of the water is protected. first in right. then the landowners own the trees as tenants in common. Reasonable use theory (American rule – majority): a. No equality of rights. Passes with conveyance of land. first in time. Owner of surface land may withdraw percolating water from underneath of the land and must make reasonable use of the water. Majority: A land owner has unlimited discretion in dealing with surface waters. shrubs. Fructus naturales 1. a. the rule is that it is too damn bad. Generally. growing crops (chattels attached to the land) ii. Underground or percolating waters 1. western states follow this. Waters below the surface of land 2. No legal redress in this situation. grasses. iv. 17 states follow prior appropriation. If trees. iii.40 b. neighbor has cause of action against the surface land. u. Even though use of the water may adversely affect lower riparian water rights.

Called emblements: usually annual crops. having no certain date of termination. The life tenant will not be entitled to proceeds of the crop. lemons…some of these crops are perennial. if crops such as apples. iii. corns. grasses. cultivating . 3. raspberries. Fructus industriales 1. Any crops remaining becomes the property of the landlord. 2. but the severed grain remains on the land. Conveyancing and mortgages a. the title of an immature orange crop vests in the remainderman (contrary to common law view). (where the tenant grows fructus industrials crops). If you have a tenancy at will. having a definite time of beginning and a definite date of termination. grapes. Where you have a tenancy of will. Viewed as real property until they are severed from the land. citrus fruits. a. harvesting: grains.fertilizing. without the aid of man – trees. beans. then this is viewed still as personal property and the crop belongs to the tenant. Multistate: 1. oranges. pineapple. Conveyances in the US: 41 . Personal property iv. shrubs. But. tenant has a reasonable time to remove crops which are planted after the termination of the term. if the tenancy is of uncertain duration. Those crops which come from nature’s bounty. If a tenancy is an estate for years. grapefruit. PMBR CD #5: XXIII. This is regularly applied in a tenancy at will. the tenant’s right to remove growing crops or emblements is terminated when the tenancy is closed. personal representative of deceased life tenant is entitled to recover the sums invested in cultivation of the crop. 2. the rule is that a tenant is permitted to remove all growing crops (all fructus industrials crops) after such tenancy if such crops are planted in the ground at the notice of termination and the tenant is given sufficient time to remove such crops. If the tenant has severed the crops at the end of the tenancy. pears. 4. but they are still referred to as emblements (even if they are perennial crops).41 3. 3. Comes from man’s industry / Man’s annual planting. Minority view: rarely tested (contrary to rule of emblements) (followed in FL): on the death of the life tenant.

2 basic types of ambiguity: 1. c. Description is adequate if it provides a good lead of the property sought to be conveyed. 3. 2. then title remains in grantor. as long as it is sufficient to satisfy the Statute of Frauds. ii. a. b. Patent ambiguity a. Where you have a K that deals with sale or transfer of interest in land. Writing must be signed. 3. Ex: All of my land in LA county is sufficient for land to be conveyed. Oral promise to convey land where you have the doctrine of substantial part performance. Purchaser can enforce the oral K where: a. 5. Insufficient description – description is too indefinite to describe the land. subject to suit for reformation of the deed. i. usually by the grantor or the party to be charged. Writing must identify the grantor & grantee 2. it must be in writing in order to be enforceable under the Statute of Frauds. 2. Purchase price must also be included 4. Parole evidence is admissible to explain or supplement a written description or clear up an ambiguity. Appearing after presentation of evidence. Statutes usually provide that freehold estates may be conveyed by deed or other instruments. Sufficient description of the land conveyed. however. ii. iii. Must be present in the writing for a valid conveyance (Statute of Frauds): 1. 1. Appearing on face of the document or deed. even though it does not necessarily constitute a deed instrument (even though conveyances are usually by deeds). Promises on both sides. Latent ambiguity a. where the grantor promises to convey the property and the grantee agrees to pay the purchase price for the property.42 i. Statute of Frauds is satisfied if a sufficient memorandum is in writing and signed by the person sought to be charged or the grantor. iv. Where the purchaser pays the seller part or all of the purchase price and the buyer takes possession of the property or where the buyer pays part or all of the 42 . A writing which evidences an intention to convey an estate will be sustained. Flexibility as to what constitutes a sufficient memorandum. 1.

1. Physical transfer of the deed is not necessary to make a valid delivery. A quits possession of property and treats B as the owner. 1.43 purchase price and makes improvements on the land. the presumption is that there has not been a valid delivery. 2. Delivery and acceptance of deeds i. c. the rebuttable presumption has been raised that this is an effective delivery. you must have delivery of the deed. Nearly all courts have held there is sufficient delivery b/c it was the present intent of the owner to make a valid conveyance. vi. ii. Title may pass even though the right to possession may be postponed to some future time. v. Can be satisfied by words or conduct. iv. A deed is not effective to transfer property unless it has in fact been delivered. Delivery refers to the grantor’s subjective intent. …the grantor gives the deed to a third person for transmission to the grantee. Although handed to the grantee. showing that the grantor’s intent is that the deed have some operative effect. or 1.. The oral K is taken out of the Statute of Frauds and made enforceable where this applies. Ex: A draws an instrument conveying Blackacre to B and hands the instrument to b for safekeeping. iii. Where the grantor retains the deed or the grantee gets physical possession of it. Valid delivery / effective delivery. Ex: A draws up an instrument conveying Blackacre to B and attempts to give instrument to B personally. before or after delivery) ii. 4. but is unable to find him. The fact the deed is recorded raises presumption that there has been made.e. Where deed is in the possession of the grantor. 3. not a valid delivery. make present transfer of the land). we look to grantor’s intent: 1. Conditional delivery (where deed is given to third party) is permissible. i. b/c no evidence that the grantor intended that the deed have present operative effect (i. 2. Delivery issues i. Parole evidence is admissible to prove grantor’s intent (conduct or statements by grantor. 43 . b. In order to have a valid conveyance. Where the deed is in the possession of the main grantee.

only if the conditions have not been met and do not occur. to sell Blackacre and they agree on a purchase price. 44 . Transfer of property with conditions: a. Treats interest in land as if land had already been converted to personal property. Applies where we have a seller. i. Buyer pays seller a deposit. will retain title.naming B as a grantee and instructing C to give deed to B. Since it was the grantor’s intent to make the deed presently operative. Majority view: valid delivery has occurred. A giving C a deed . According to the doctrine. i. Where you have transfer to a third party with no condition. No valid delivery here. during the period from September 1st after the real estate sales agreement is entered into and the closing date of November 1st when the buyer has the time to do a title search and come up with the payment price.naming B as a grantee and instructing C to give deed to B. deed has a present operative effect even though conditions to be met in the future. The buyer must take out insurance on the property to protect this XXIV. A valid conditional delivery has occurred. ii. 1st to Nov.000. when B has paid remaining balance of purchase price. then grantor retains the title. Where grantee wrongfully acquires deed from escrow holder without performing conditions (payment of the purchase price). the owner of the property. A giving C a deed . e. During Sept. The risk of loss is on the buyer. 3. and then the parties enter into an executory real estate sales contract. Transfer will occur automatically upon occurrence of condition and A. f. They enter into the real estate sales agreement on September 1st. Escrow – certain conditions must be satisfied before deed is passed on to the grantee. Equitable conversion d. i. 1st.44 2. $100. the seller by this doctrine is deemed to be the equitable owner of the balance of the purchase price and the buyer is deemed to be the equitable owner (beneficial owner) of the property. During the executory stage of the sales contract… iii. enters into a real estate sales agreement with the buyer. ii. if the property is destroyed by fire or flood. risk is on the buyer. iii. the grantor. Legal title still remains with the seller. a. The date for closing is set for November 1st.

Where the vendor does not give this duty. I’m rescinding the K. Vendee may not rescind K before that. i. Applies where there is an enforceable obligation to sell land (real estate sales contract). the deed supersedes the K which is no longer in effect. When the vendee (purchaser) dies during the existence of the real estate K period. Easement upon any appreciable part of the property vi. the deed will supersede the K. buyer is regarded as the equitable owner of the land and the seller is the equitable owner of the purchase price. i. the right to receive the land goes to her heirs. Smith contacts Jones. Marketable title j. If the vendee goes through the sale and accepts the deed without any warranties of title. l. k. can buy the K. Variations in the names of the grantors and grantees in the chain of title XXV. 45 . Outstanding reverter rights iv. i. Vendor’s death does not negate the real estate sales K. In an absence of agreement to the contrary. Ex: Jones entering into a K to sell Blackacre to Smith. Encumbrances which the vendor cannot or will not remove v. The deed supersedes the real estate K. What if the vendor dies on Oct. saying you aren’t giving good and marketable title. Smith does her title search and discovers on October 15th that there is an encumbrance on the property (easement on the land). Vendee can still enforce the K. Defects rendering title unmarketable: i. ii.45 expectancy interest he has at the closing date when title will pass to him. vendee may rescind the K. Can the vendee do this? No b/c the vendor has until the date of the closing to render good and marketable title. iii. Existence of restrictive covenants iii. an implied undertaking in a real estate K that a vendee has marketable title. The K usually provides that the vendor will provide good and marketable title to the vendee. g. i. Risk of loss is on the vendee for casualty loss which happens during the executory period of the sales contract. then title to the property can pass on to the decedent’s heirs. Vendor is only obligated to deliver good and marketable title at the time of the closing. the beneficial interest descends as personal property and the heir only gets a bare legal title which she must convey to the purchaser when the purchaser performs and the proceeds of the sale then goes to the vendor’s estate and then pass on by inheritance to his or her heirs. ii. administrator. If a deed is delivered and contains no warranty of title.) – can still enforce the real estate sales K. etc.15th? When the vendor dies during the existence of the existence of a specifically enforceable K. but the duty to pay the purchase price falls on her personal representatives (executrix. Outstanding mortgages ii. m. h.

w. Even though the parties can orally make a boundary line agreement and compliance with the Statute of Frauds is not required. Covenants for seisin and right to convey: i. Guarantee to the grantee that the grantor owns the estate which the deed purports to convey. Oral agreement is valid and enforceable and does not have to come within the Statute of Frauds. Meets statutory requirements 2. when the deed is delivered. Covenants for seisin r. this generally construes a general warranty deed. Covenant against encumbrances i. grantee takes whatever the grantor has in the property. General warranty ii. Not used much in the US XXVI.46 vii. x. No assurances and no warranties. Covenant of further assurances i. bb. Quit claim 1. z. Covenant for further assurances i. XXVII. Outstanding dower interest Boundary line agreements n. Covenants in deeds respecting title p. t. right to convey. Covenants for right to convey s. Property conveyed – no outstanding mortgages. q. 3 types of deeds: i. against encumbrances. aa. Defend the grantee-covenantee against all legal claims by grantor or third parties who would evict the grantee-covenantee. When a deed provides for usual covenants. Construed to have the same legal effect ii. 3 covenants are in the present tense. if at all. Covenant of general warranty v. Covenant of quiet enjoyment u. liens. 3 of these are breached. i. Cover breaches that occur after the deed is delivered (in the future). Containers fewer assurances iii. i. Very similar / synonymous ii. general warranty. Judicial recognition is extended to boundary line agreements even though there is no right. Special warranty 1. o. Generally includes covenants for seisin. 46 . quiet enjoyment.-easements or profits – that does not diminish value of property. or restrictions . y. Covenants against encumbrances i. Covenants of quiet enjoyment and covenants of general warranty i.

e. that estate passes to the grantee. further assurances) run with the land and can be enforced by remote grantees that take through the covenantee grantee. prevails.47 ii. Undertaking on the grantor’s part – to do something on his or her part to perfect the grantee’s title. Recovery: i. Thereafter. O does convey Blackacre to A. Covenants are contracts of indemnity and they indemnify grantee for his or her loss. kk. Recording Acts jj. A conveys a deed to B. A makes a conveyance to B. After the A-B deed transaction-conveyance. Pure notice 1. If a person executes a deed purporting to convey an estate in land which he does not have. A mistakenly believes he is the owner and makes this deed to B. In jurisdiction that follows the doctrine. hh. general warranty. ii. Subsequent BFPs i. Damage must be shown for recovery by the grantee. B) in a majority of states. once O makes conveyance to A. First 3 covenants cannot run with the land b/c they are personal choses in action when they are breached at the time the deed is delivered: i. XXVIII. O conveys to A. ii. the majority rule is that a subsequent BFP prevails over that prior grantee (i. ff. 3 basic types: i. or does not own. ii. Pure race 1. Covenants for seisin ii. Covenants against encumbrances ee. O is the owner of the property. The subsequent BFP who pays value without notice of any prior conveyances or prior notices of encumbrances on the property prevails. mistakenly believes that he is the owner of the property. But these 3 covenants (quiet enjoyment. Covenants for right to convey iii. Whoever records first. ii. None of the covenants protect the grantee against trespass or regression of a mere wrongdoer. A.. dd. whether or not she records first. A conveys the property to C and C knows nothing about the A-B transaction – B did not record and C is viewed as a BFP who paid consideration without any prior notices. purporting to convey title to Blackacre. 47 . or he purports to convey land of a larger estate which he does not own. Estoppel by deed (Quiet title doctrine) gg. XXIX. cc. then according to this doctrine. Provide a means for giving constructive notice of ownership. then title inures to the benefit of B by application of estoppel by deed or after quiet title doctrine. Ex: O is the record title owner of Blackacre. If A goes ahead and after acquiring that deed from O.

In rem action a. you also execute the mortgage (the security of the debt). Look to the deed of conveyance from the mortgagor to the buyer: 1. B prevails over A and B is a BFP without notice of conveyance. On the other hand. ll. too. Mortgages nn. Is the buyer personally liable for the mortgage debt? i. Mortgagor conveys property to a buyer (sells).48 iii. 3. then the bank can foreclose because its security XXX. ss. i. then the buyer is not liable personally to the bank for that mortgage debt. Mortgagees are also protected – treated as BFPs – and they. if the deed is silent as to the existence of the mortgage or if the deed states that the land is subject to the mortgage. 4. are protected. If the deed states that the buyer assumes the mortgage. Combines essential features of pure race & pure notice. Whenever you take out a mortgage on property. mm. rr. 1st. except such persons having actual notice of it. Only BFPs are protected under notice and race-notice statutes. The bank is viewed as a the mortgagee. Interest in land created by a written instrument providing security for an outstanding debt. A conveys Blackacre to B who gives valuable consideration and has no notice of the conveyance to A. Typical notice statute i. Multistate: i.000 mortgage on your property with the bank. 48 . Race-notice 1. Ex: On Jan.” 1. Exam: Whether the buyer is going to be personally liable to the bank for the mortgage debt still outstanding. oo. O conveys Blackacre to A. On Jan 15th. If the buyer should fail to make mortgage payments. you execute the promissory note which is evidence of the debt. A does not record. Race-notice – subsequent BFP who paid value without notice but records first prevails. In personam action a. He is if the deed contains language that the buyer assumes the mortgage debt. The mortgagor is the property owner who takes out the mortgage with the bank. qq. pp. ii. unless the conveyance is recorded. 2. then the buyer is personally liable to the bank for that mortgage debt. Ex: You take out a $500. 2. “Conveyance of an estate in land shall not be valid against any subsequent purchaser for value. the mortgagor (person who takes out a mortgage with the bank).

a buyer can take the property free and clear of the mortgage if it’s not recorded by the mortgagee. iii.000. The mortgagor takes out a $500. the mortgagor would be entitled to receive from the bank the difference from the foreclosure sale or the $200. State that follows statutory redemption – if the mortgagor owed $500. Mortgages come within the recording statutes and they must be recorded in order to protect a mortgagee.000. After the default and before the mortgagee brings a foreclosure action. bank sold property for $700.49 interest is an in rem type interest and the bank can bring a foreclosure action where there is a default by the buyer.000 mortgage on the property with the mortgagee. Mortgagor can still pay off debt to bank – mortgagor is entitled at his election for redemption against mortgagee for value of land or the proceeds from the foreclosure sale **.000. ii. most states permit the mortgagor …. Equity of redemption (statutory redemption) i. If a mortgage is not recorded and a mortgagor conveys property to a buyer without notice of that mortgage in a notice or race-notice jurisdiction.000 he owes the bank. ** uu. In most states. the common law permits the mortgagor to pay off the mortgage debt and then reacquire clear title to the property. tt.most states give the mortgagor 6 months to 12 months after the default…to repay the bank the mortgage indebtedness even though there’s been a foreclosure sale and title has passed to Baker. After the foreclosure sale. mortgagor may default and then the mortgagee institutes a foreclosure action. 49 . and the mortgagee sales the property to Baker for $700. The mortgagor then defaults. But. by statute. the mortgagor then attempts to repay the bank the $500. This is known as statutory redemption. i. there’s a foreclosure sale.000 and then mortgagor pays off the mortgage indebtedness.

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