PROPERTY

Stephanie M. Taylor Professor Marty-Nelson 1.

Property – bundle of rights; something tangible or intangible and enforceable against a 3rd party
a. Can be owned by one person or several b. Rights can be divvied up over time c. Types of property i. Real property 1. Land and the things attached thereto such as buildings, structures, and natural vegetation 2. Rights can be divided ii. Personal property 1. Defined by exclusion from real property 2. 2 types: a. Tangible i. House, car, etc. b. Intangible i. Will have representations but cannot see ii. Ex. the right to a debt – bonds, trademarks, copyrights, patents, stocks, securities c. Rights can be divided with either d. Title to property is relative i. Depends on who is claiming and against whom that person is claiming

2. Wild Animals – CL doctrine
a. No true owner because they are wild b. BUT – wild animals are considered property if the hunter deprives it of its natural liberty and renders escape impossible c. IF – wild animal regains its natural liberty then the animal is no longer the hunter’s chattel o Hypo: O operates a game farm, an elk escapes and H shoots it; O wants compensation for the elk from H  Landowner where elk shot not in suit  H argument – elk regained natural liberty (wild animal) and was not inclined to return; therefore, H could go after it  O argument – elk will return to pack/family because game raised elk; domestic animal not wild animal so common law does not apply; Policy – elks are an investment to O

3. Found Property (do a relativity of title analysis, who has superior title?)
a. 4 classifications – classification of property changes depending on the intent of the true owner i. Abandoned property 1. Possession goes to finder, true owner does not trump 2. Voluntary relinquishment of the property, looking for subjective intent through circumstantial evidence 1

ii. Lost property 1. Possession goes to the finder and ONLY the true owner has a superior title 2. Someone unintentionally and involuntarily parts with the property iii. Misplaced property 1. Possession goes to the owner of the locus 2. Intentionally places property somewhere and is subsequently forgotten or overlooked iv. Treasure trove 1. Possession goes to the finder 2. Usually an element of antiquity dealing with coins or currency 3. Hidden or concealed for such a long time that the owner is probably dead or cannot be found   Hypo: leave something on counter to pay bill o Looks MP because prof. put it there on purpose and overlooked it Hypo: leave something on counter to pay bill and then someone else with tons of packages and knocks prof. left package on the ground; another person comes and kicks the package into the corner; several days pass and someone finds it o Looks LP now Hypo: put coat down and something fell out of pocket o LP Hypo: someone comes along and picks up the thing that fell out of pocket and puts it on counter; someone else comes along and finds the thing on the counter o Now MP because just by it being set on the counter it looks like someone left it there purposely even though it was not because those are the only facts in front of the court when the true owner is not the property

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b. If the property is embedded in someone’s property then the found property will go to the owner of the locus i. Ex. Favorite v. Miller c. Public v. Private i. The more public the place  go to the finder ii. The more private the place  go to the locus owner (prevention of trespassing) d. Policies i. Return of item to true owner 1. Leave property where found it so the owner knows where to begin the search ii. Rewarding luck iii. Rewarding honesty iv. Discouraging trespassing

4. Bailments
a. Transfer possession of goods to another with the understanding express or implied that the goods will be returned to the person that made the transfer i. BR transfers to BE (“ees” are the ones who have possession) ii. Possession transfers but not legal title 2

b. Elements i. Intent 1. BR intended to create the relationship either expressly or by implication ii. Delivery 1. BR delivers physical control of the property iii. Acceptance 1. BE intended to possess or control the object (accepts) iv. Possible element of reasonably foreseeable! 1. Container Rule: BE normally only liable for reasonably foreseeable contents in bailed item a. Reasonable contents: i. Must look to surrounding circumstances – location, event, time, holiday, etc. b. Ex. Shamrock Hilton v. Caranas i. Only reason these 13K worth of jewels deemed reasonably foreseeable contents of a purse is because this aspect was not timely objected to ii. If it was – great possibility that this would not have been reasonably foreseeable contents o Hypo: fox scarf left in sleeve of coat that was given to coat check; fox lost  Court said not reasonably foreseeable but would have been if in the pocket; maybe reasonably foreseeable if winter season c. Can be expressed or implied i. Express 1. Parties agree to the terms 2. Ex. – contract to store property in storage facility ii. Implied in fact 1. Ex. – throw keys to buddy to borrow car iii. Constructive 1. Implied in law – law turns agreement into a bailment a. Someone deemed to be holding property for someone else b. Finder/true owner relationship because true owner’s title is stronger relative to the finder c. Ex. Shamrock Hilton v. Caranas i. Intent – if BR realized purse gone then she would have expected hotel to keep it ii. Delivery – constructive iii. Acceptance – mutual benefit, intent to accept by hotel as to maintain patronage d. Types:  figure out by who is benefiting from relationship; also defines the degree of liability the law imposes on the BE i. Bailment for sole benefit of BE 1. Hypo: go outside, car not working and ask to borrow my car a. Prof = BE, me = BR; only BE benefiting 2. BE liable for even slight negligence ii. Bailment for sole benefit of BR 1. Hypo: leaving for summer and need place to store books, ask professor to store books in her garage 3

a. Prof = BE; me = BR; BR getting all benefit because only thing prof gets is a garage full of junk 2. BE only liable if grossly negligent a. Hypo: left garage door open during hurricane iii. Bailment for benefit of both 1. Aka  bailment for hire a. Ex. dry cleaner, furniture store – patronage for payment 2. BE liable for ordinary negligence e. Bailments presume negligence (according to levels of negligence above) i. Often there is no evidence, so the whole case turns on who gets the presumption 1. ONCE bailment found then BR gets the benefit of the presumption ii. Then burden on BE to bring evidence to show no negligence; is BE cannot show that then out of luck iii. Statute gives presumption, if no statute then CL gives the same

5. Gifts
a. Voluntary transfer of possession by one to another without consideration i. Donor (DR) transfers to Donee (DE) b. Elements i. Intent 1. Present donative intent 2. CAN intend to give a present or transfer gift that will become possessory in the future 3. LOOK TO THE INTENT OF THE DONOR AT THE TIME OF DELIVERY a. Intent when dead does not count ii. Delivery 1. Such to divest the owner of dominion and control a. Physical delivery = BEST b. Constructive delivery – means for obtaining access i. Ex. keys, financial note c. Symbolic delivery i. Ex. representation of the items – letter, picture 2. Has to be more than just words – “talk is cheap” 3. Sometimes have delivery to 3rd party, as long as 3rd party acting agent of donee then probably have sufficient delivery, if acting as agent of donor that probably do not have sufficient delivery iii. Acceptance 1. Presumed for an item of value a. If no evidence of acceptance then DE gets the benefit of the presumption c. Gifts made during one’s lifetime i. Inter vivos 1. Irrevocable a. Look to intent of the DR at the time of delivery 2. Ex. bf gives watch to gf for birthday, then they break up a. Too bad, cannot get watch back because present donative intent at the time of delivery ii. Causa mortis 1. Revocable; made because the DR was staving off death 4

a. Donors express revocation b. Donor’s recovery from peril or illness c. Death of donee prior to donor’s death  Hypo: son at dad’s house for birthday party; dad, in front of every guest, says to son he is giving painting. o Not a valid gift because no delivery  Intent – yes, and guests can corroborate  Delivery – no and intent alone is not enough  Acceptance – since gift has value then presumed Hypo: Dad gives son painting for birthday (expressed in a series of letters) but retains present possessory interest in a life estate of the painting, gives remainder to son o Valid gift  Intent – yes, the letters indicate  Delivery – not actual nor constructive, but symbolic in letters  Acceptance – presumed because something of value o Gruen v. Gruen

6. Adverse Possession
a. Way to acquire title to property without intent, delivery and acceptance i. Way for owner to regain property (as long as before SOL) is to bring an ejectment action b. Different from adverse use which is prescriptive land easements c. Elements i. Possession of property 1. By the adverse possessor 2. View claimants possession in light of the nature of the land a. Ex. Jarvis v. Gillespie i. Only used land 2x/wk but that was enough because farming land and only needed attention that often ii. Claim of right 1. Not met if by permission 2. If have permission then can NEVER win adverse possession a. Permission also breaks continuous iii. Open and notorious 1. So all the world can know 2. From the facts would a reasonable person know a. KNEW OR SHOULD HAVE KNOWN THROUGH DUE DILIGENCE i. Ex. Marengo Cave v. Ross 1. Even though adverse possession underground (cave) the true owner knew or should have known a. Through survey conducted when cave exploring business began next door 3. If owner actually knew, and still did nothing, then SURELY open and notorious iv. Continuous 1. Not interrupted 5

Highest and best use of the land 1.2. Policy arguments – pg 499  consistent policy arguments for everything in property i. Stale claims lead to stale evidence iii. ACRE COP – anagram d. Tolling of SOL i. Gillespie v. Jarvis v. Survey and fence it in 3. Bring actions sooner rather than later 3. Only tolls for the period of time person CANNOT ACT 1. Disabilities set forth in the statute a. so cannot hold that against them vi. DOES NOT mean present at all times. SOL or CL a. Inspect property 2. court does not distinguish and just says adverse possession  claim of right 1. Ex. do something about trespassers 2. Blends with claim of right because if permission given by true owner of property then also destroys hostility vii. Adverse/hostile to the interest of the owner 1. In color of title MUST produce the defective instrument b. If document was smaller then make color of title for piece in document and then make a claim of right for all other parts 6 . until jailbird released iii. Policy of owner physically incapable of acting. Possession must be exclusive of others 1. Environmentalists argue not all land needs to be developed ii. Encourage owners to be vigil in regard to their land e. Ex. Incarcerated person while locked up c. NOT EVEN the true owner viii. No other person can be in possession but the adverse possessor. Owners need to bring complaint immediately instead of letting time pass and then bring it up. Must last for required time in jurisdiction 1. Right against the world without permission v. Could actually be more than he is possessing ii. Only time SOL will cease to run is: 1. Some jurisdictions “don’t need good faith” so long as claimant treated it as his own property 2. until minor 18. Minors in minority b. Mentally ill ii. Encourages rejection of stale claims 1. Claim of right v. Color of title i. claim for adverse possession based on defective instrument (deed) ii. Tolling statute read narrowly 1. If can win under color of title then title extends to the land described in the defective instrument i. If does not say color of title then falls back onto claim of right. Difference between the two a. Stop someone else from adverse possession 1. just means continuous possession in light of the nature of the property a. Make sure land gets developed by society 2.

Claimant gets what he was actually possessing  Hypo: A received a defective deed to 10 acre lot. Need a transfer: a. Consensual relationship i. Sale c. Legal relationship i. After an ouster 2. Not permitted 1. Conveyance i. do not need a deed! b. Normally the courts do not case 2. moves into lot and builds house on front half of lot. FL color of title  MUST record the defective instrument to give notice to all. DR/DE b. Permitted 1. In claim of right i. Seller/buyer ii. Claimant’s subjective intent i. occupies for SOL period and does not develop forest in the back. When one adverse possessor gets credit for a possessor’s previous time 1. MUST SHOW no bad faith. need to show that thought deed was valid g. FL SOL  7 years 2. Tacking time i. Gift d. Some jurisdictions will also require adverse possessor to pay property taxes i. Death (devise) iii.c. Color of title 1. FL 1. Ex. After abandonment iv. Privity a. Must show aggressive possessor i. NO formal conveyance required. Nonconsensual WILL NOT work  ouster or abandonment 7 . Absolutely BAD faith ii. meets all requirements and good faith that he had a valid deed o In FL – need A to record it o CL color of title – can get all of the lot as described in defective deed if wins claim  Color of title allows constructive possession of land as described in defective instrument o If claim of right case – max A could have gotten was front park because it was open and notoriously possessed f. Combining periods of time with claimant and prior possessor so that time period fulfills the SOL for that state ii. requirement of mental element – cannot have bad faith h. Minority: a. Claim of right 1. Decedent/heir c. Tacking = one of permitted types + privity 1. Must show good faith b.

Ex. has right o possess the entire thing) 2. never inspects. X does nothing. he sells to X with perfectly executed deed. Each tenant has possession of the whole (can go from basement to attic. Huffman   Hypo: SOL = 20 yr for adverse possession. Adverse possessor will not show up on the record. All tenants have an identical share (same percentage of property) iv. Interest 1. O gets in trouble and sells Blackacre. Concurrent interests a. A continues to live there for SOL  A wins against X even though there was a change in record owner  All prospective record owners should inspect 7. he only holds adverse possession against wife. A steps in year 1 adversely possessing.v. O purchased but never moved onto property. 5 years later. adverse possessor comes onto property fulfilling all elements of adverse possession  Ordinarily adverse possessor would win title but because when he entered land there was a future interest. 1985 A enters property adversely and states to possess. then adverse possession time only runs against present holders o Hypo: wife and kids not living on estate. This is NOT TACKING (tacking occurs when transfers from adverse possessors to other adverse possessors) 2. record title owner = O. Possession 1. Time 1. Exception: if at the time of entry the land (by APers) is subject of future interest holders. 5 unities (TTIPP) i. B claims adverse possession o O wins because B ousted A and did not meet elements o B would meet required time in 2015 i. so MUST inspect before buying i. Title 1. files an action for ejectment. only the wife (present holder) could go to court to get adverse possessor out o Hypo: A made the required time in above  A would be entitled to possession for wife’s life o Hypo: O on record of Blackacre. Can be concurrent interest in the present and future b. Normally once adverse possession begins it DOES NOT MATTER if the record owner (true owner of land) changes hands because new owner has duty to inspect 1. Carpenter v. kids (future interest holders) could not stop him. No cotenant can exclude another cotenant from any portion of the property 8 . 1995 B forces A out and B stays 2009 O decides to see his land and notices B is there and wants to get rid of him. Tenants take title from the same instrument (document) iii. Tenants take their interest at the same moment in time ii.

Person 1. during lifetime TIC can convey i.15    Hypo: O transfer to A and B as tenants in common o A and B have a present possessory interest in fee simple absolute and does not include right of survivorship Hypo: what happens if A dies? o A successors in interest get A’s interest Hypo: O owns Blackacre and has title to old family estate but had no kids. Joint Tenancy (JT) 1. Husband and wife form one person (only found when there is marriage) c. Only need one unity – possession 2. Tenancy by the Entirety (TBE) 1. the closest concurrent interest to TBE is a JT so that is what the interest becomes i. Tenancy in Common (TIC) 1. TIC – upon death a TN can devise interest. O wants estate to stay in family as much as it can 9 . Ex. Need: a. If divorce. “to A and B as JT with right of survivorship and not as TIC” 1. FL Stat § 689. Majority (FL) – TBETIC in order to be able to pass interest onto children/beneficiaries b. Only that percentage is severed iii. Time b. If convey during lifetime then transforms from JTTIC i. 3 classifications of concurrent interests i. Has a right to survivorship  no interest at death 3. Modern presumption: when conveyance to 2+ persons there is a presumption that there is a TIC unless evidence brought to show JT i. No right of survivorship a. If want JT then needs to be VERY CLEAR. clear enough to rebut presumption ii. If parties want to turn TBEJT then must do so with expressed language due to the presumption 1. Definition: once a TN dies then his interest merges with all other TNs b. In JT either divorced spouse can still sever by conveyance d. Minority – TBEJT. A and B. When one spouse dies then land transforms from TBE  FSA in living spouse 4. Interest d. Title c. difference in jurisdictions a. Possession 2. Only way to stop TIC from giving away interest is by signed contract disallowing that action ii. CAN CONVEY a. NEED ALL 5 UNITIES 2. Has right of survivorship a.v. since GR intended TBE and then divorced so unity of person destroyed. Neither spouse can devise or transfer without the other’s permission 3. O wants to leave it to surviving nephews.

no longer concurrent estate B only heir is Z o Too bad because right of survivorship Hypo: A owned land of FSA. B and C owned FSA land as JT. non-probate transfer. who owns what interest in the land at this point o A fell out of owning group so has no interest after death. now no longer concurrent because everyone else died so C owns it with fee simple absolute Hypo: O to H and W as TBE o H and W have present possessory fee simple absolute interest (pp FSA) as TBE with right of survivorship If H dies? o W owns it.B and C B then died without a will o C owns all land. who owns what? o A already had an interest in land through a different instrument so time and title not met. would still need to fix the title to say her name Hypo: A. B and C owns 1/3 o A able to transfer by will because TIC Hypo: A. A conveyed to A and B as JT with the right of survivorship. B and C each owned individual 1/3 FSA interest in a parcel of land as TIC. often referred to as “poor man’s will” because it was automatic. B and C as JT with rights of survivorship and not as TIC o After conveyance all 3 own present possessory interest as JT with right of survivorship What happens if A dies? o Interest goes to B and C as JT What happens if B dies? o C owns all of blackacre. not a conveyance so only B and C own land o If conveyed then becomes TIC with X. need TTIP unities o Way to fix it: A and B  TIC  A’s interest in TIC can be divised so X has claim  B and X own as TIC o If all really wanted to create JT then would give land to straw man – A would transfer entire deed to trusted 3rd party and then that party would transfer to A and B as JTs 10 .Y.             o JT furthers O’s interest because when one nephew dies the other gets it Hypo: O to A and B as joint tenants with right of survivorship. A died and by will left her interest in the land to X and Y equally. not as tenants in common o JT = good way to rebut presumption of TIC o So now A and B have present possessory interest in fee simple absolute with rights of survirorship What happens if A dies? o Goes to B with him now having full title Hypo: if A leaves to heir? o Only keeps JT if during lifetime nothing done to ruin it o If left to heir then JT severed and becomes TIC Hypo: O to A. Who owns. what? o X and Y own 1/6. A died and by will devised all A’s realty to X and Y equally. A died leaving all A’s realty to X by will.

If just creditor of one then cannot reach 2. Way around is for bank to get both spouses to sign loan because creditor of both so can reach i. Creditor can reach anything that debtor alone can alienate 1. TBE meant to protect the family which property law holds in high regard 2. B and C are JTs in regard to each other When B dies? o Goes to C = 2/3 o C now only member of JT. Involuntary – property owners forced into 1. Ex.B and C owned land is FSA as JTs. child support.      Reason jurisdictions have not gotten rid of straw man is because need transfer fee to make it happen  $$$$  Could also serve cautionary function. A conveyed A’s interest in the land to X. What can be reached by creditors i. Applies to both voluntary and involuntary creditors i. Attempted conveyance by one spouse is wholly void. B and C all own 1/3. Ex. Voluntary – property owners seek out 1. Hurd v. the estate may not be subject to one spouse’s debt iv. if extend credit after TBE then creditor on notice that TBE property cannot be used to secure debt a. so can the creditor ii. Once interest owner aware of creditor then a gratuitous transfer will usually be deemed a fraudulent transfer (trying to get out of losing property) iii. Recognizes possible fraud. bank loan. mortgage ii. Group 3 states (majority) 1. Hughes b. judgment f. who owns? o A’s portion severed and given to X who is a TIC. Creditor steps into the shoes of the debtor  whatever the debtor can do with the property. Ex. if debt arose before property turned into TBE then creditor leant based on what already owned so not counting on TBE property as payment. Policy 1. others would apply presumption of vague deed is TIC What if they later marry? o Not a TBE because need to be married at time of granting  e. Rights and Obligations of Co-TNs 11 . becomes TIC with X C dies? o C’s successors in interest get C’s part 2/3 If X dies first? o X’s successors in interest get X’s part 1/3 Problem 1 on page 244: O conveyed to A and B as TBE but they are not married  not real TBE o Some states would deem as JT. Usually creditors CANNOT REACH TBE a. TIC and JT are free game a. X. make sure people all doing exactly what they wantsaes Hypo: A.

one sister lives in house and the other lives in other states a. The possessing sister can bring an action for upkeep contribution from the non-possessors ii. Absent an ouster. The one who lives in house does not have to pay for non-possession to others 2. Hypo: Carl was ousted by Lenny from the same farm. in that case the tenant in possession must account and pay i. Compensate a cotenant that made an improvement by giving the party that made the improvement the land with that improvement on it 12 .i. etc. Expenses among cotenants 1. Carl and Lenny each get $500 from the farm proceeds ii. Non-occupying tenant was ousted. i. ex. Lenny sole possessor and getting $1. at time paying extra make it clear this is not a gift to be able to rebut the presumption b. Cotenant paying more than fractional share of upkeep expenses can go to court and bring an action or contribution for those expenses 1. Hypo: property left to sisters by parents as JTs. new wing. If a cotenant obtains rental income from a 3rd party. pool. When one cotenant pays more upkeep then the others there is a presumption that the one paying the extra money is giving a gift to the others (majority). 2 types a. Contributions actions do not work here 1. a cotenant in sole possession is NOT LIABLE to his non-occupying cotenants for the value he derives from possession of the whole (from basement to attic) b. Tenant in possession after ouster a. Physical (in kind): works when the property is physically divisible in a way that would be equitable a. one in possession asks others for money for those bills a. Upkeep expenses: all cotenants responsible for upkeep expenses such as real property taxes and mortgage payments i. Lenny does not have to pay Carl any proceeds he derives from the farm 2. carport. Partition – 2 ways  ENDS THE Co-tenancy 1. Hypo: Carl and Lenny own equally a farm as TIC (1/2 each). Carl voluntarily moves out. Income: a. Lenny now in sole possession ii. One in possession does not owe the others not living there anything as long as he did not oust them i. Capital improvements: cotenants not responsible for non-authorized capital improvements.000/mo from renter 1. BUT can use partitions – used when Co-TNs cannot work together any longer ii. each cotenant is entitled to his share 3. Hypo: now taxes and insurance start getting up and bills getting higher. Rental income from 3rd party a.

TEST: INTENT 1. house on front lot that butts highway and back lot butts ocean  cannot be divided fairly 2. Ex. Severance i. Legal title is held by borrower/JT. improver gets = fractional portion + (difference between property with and without improvements) g. Lender owns legal title and borrower owns equitable title until note it paid i. on deed. EXCEPTION: In Colorado. Sell the property and divvy up the money c. Terminating – getting rid of concurrent interest altogether i. so sneaky TN now gets whole interest to himself b. Must be capable of fairly divvying property ii. Resolution to problem dividing physically b. SOLUTION: sneaky TN must record new deed showing he has TIC iv. If other TN dies first then sneaky TN gets his interest. during the duration of mortgage. If only between two people  TIC 2. 2 theories: a. Policy: courts worried about fraud 1. Partition by sale a. partitions b. Does a lease sever a JT? 13 . Ex. Formula: ii. Ex. No severance v. JTs can always convey their interest during lifetime to sever JT 1. Dealing with JT and one TN uses strawman to sever and never tells the other TN a. Problem: i. If sneaky TN dies first then his interest secured because he can devise ii. Severance – keeping interest but not in relation to Co-TN i. mortgage lender has lien and only obtains legal title after foreclosing ii. can unilaterally terminate through a strawman ii. transfer through a strawman  destroys unity in time and title 1. Title theory states i. If between 2+  JT between the remaining non-severers and person who severed has TIC with those two JTs iii. Creates severance b. Must see if severing or terminating a. If also dealing with capital improvements: i. Lien theory states i.i. Lender gets deed of trust. Does a giving a mortgage cause severance of JT? 1.

Magic words: provided that. FSD i. JT temporarily severed during time of occupancy of the LE but does not permanently sever the JT vi. GR keeps possibility of reverter b. Condition imposed by grantor but will not terminate automatically 14 . but if ii. Terminates automatically if the condition attached is violated 1. Favors lien theory a. Estates in Land Fee Simple FSA FSD FSSC S FT Non-Fee Simple LE Non-Freeholds All estates other than FSA are defeasible or subject to an executory interest (limitation)  Hypo: O “to A for as long as A doesn’t divorce” o O retained something o A’s life estate is defeasible Estate for Years Periodic Tenancy Tenancy at Sufferance Tenancy at Will b. on condition that. Defeasible fees 1. Conditional a.1. so long as ii. Can have multiple conditions iii. Does murder sever a JT? 1. Magic words: while. Interests in Estates of Land a. YES. FSSCS i. Fee simple i. until. some states even have slayer statutes dealing with this issue specifically 8. FSA – lasts indefinitely ii.

Interest measured by the life of the person in possession 2. This is an example of a present possessory interest in a fee tail 2. Fee tail 1. Once condition breached the GR MUST act in order to regain the property iii. distinguished from successors in interests which is MUCH BROADER b. Tenancy at sufferance 1. Periodic tenancy 1. Limit to 21 years. Kept in issue: decedents.18 i. See LL/TN 15 . Tenancy for a fixed term 1. If possessor dies and the LE was pur autre vie and the life being measured not dead yet. If follows condition and more than 21 years then FSD becomes a FSA subject to a covenant (will learn later) iii. See LL/TN ii. Pur autre vie – possessors life estate measured by the life of another a. Non-fee simple i. not future interest holders  Hypo: O “to A for the life of B. GR cannot obtain reversion until the measuring life dies b. with O retaining a reversion o Matters if Caretaker wants to sell because the difference in her having a life estate and selling it and her having a life estate PAV would drastically change the price Hypo: O “to A for life. but statute does not apply if FSD or FSSCS was granted to government or non-profit (in those cases the conditions can last forever) ii. FL limits duration of possibilities of reverter and rights of re-entry § 689. “O to A and the heirs of his body” a. heirs. Can still be created in a hand-full of states but if GR wants to divest estate then FT is disentailed. then possessor’s successors in interest could possess until the measuring life dies.” A conveys his interest in blackacre to B.” o Good example of when would be a life estate pur autre vie. Used to keep property in the family line  now outdated a. so that those with right of reentry must take affirmative steps to take property back c. CANNOT adversely possess because can only adversely possess against present interest holders.1. See LL/TN iii. When language of the document is ambiguous but it is definitely conditioned then the courts prefer FSSCS. now falling into modern categories iv.” In real life?  O “to Caretaker for the life of the mother. GR keeps right of reentry iv. Life Estate 1. o Max estate B has is PP interest in life estate PAV (measured according to A’s life)  c.

c. “and his heirs”  ALWAYS MEANT AS WORDS OF LIMITATION. See remainders iii. Right of reentry (FSSCS) 3. Words of limitation 1. if future then decide which type of future interest a. Possibility of reverter 16 . If more than one purchaser. ANALYSIS: i. Defined by exclusion. Executory interest a. Words of purchase 1. Used to classify estate a. A has present possessory interest 2. Ex. Modern interpretation – “to A”  A has pp in FSA iv. Interests a. Remainder a.iv. GEGE c. to A ii. See remainders 2. Vested. MUST go through remainder definition to decide the future interest is EI b. repeat steps 2-3 until finished all purchasers v. Shifting i. Present possessory or future. if ever. Future i. Springing i. move to next step. if present possessory. GR can have: 1. Remainder ii. Possibility of reverter (FSD) 2. Solve for GR 1. Classify interest 1. immediately upon the natural expiration of prior non-fee simple estates created simultaneously with this interest b. Remainder c. Contingent iv. See LL/TN d. GRGE iii. “for life”  LE 2. Future interest in someone other than the GR that will become PP estate. Only possibilities: a. Nothing b. Ex. Present possessory b. GE can have: 1. Ex. Types i. very limited when they will be words of purchase 3. Tenancy at will 1. or ii. any future interest in someone other than the GR that is not a remainder i.

B will get it immediately after A dies.” O dies one year later. Right of reentry  Problem 1 pg. Condition subsequent a. Takes away right of possession b. At the time of creation of the interest it is possible to identify at least one person who can take interest b. if ever. 2 part test: i. PP interest. immediately after the natural expiration of a prior non-fee simple estate created simultaneously with it (in the same document) ii. for life so A has PP in a life estate o B  to B. Remainders i. AND 1. FI in remainder  B has FI and is not the GR because A has PP. Vested a. If/but if distinction i.” o Words of limitation: “and his heirs so long as” o A has a PP interest in a FSD with O retaining the possibility of reverter Hypo – O conveys “to A and his heirs so long as the property is not used for commercial purposes.d. Indefeasibly vested remainder 17 .” o A  to A. 230 – O conveys “to A and his heirs so long as the property is not used for commercial purposes. 2 types: 1. Condition precedent a. o A still has PP interest in FSD with O retaining possibility of reverter o B has future interest (because A has PP) by EI with FSA  Because A has fee simple and non-fee simple is needed for remainder Hypo – “O to A for life. and both were created in the same instrument  Natural expiration for life estate if when PP holder dies  Natural expiration of 10 year lease = 10 years    e. If = condition precedent 2. then to B and his heirs. Something that can stop someone from obtaining b. A future interest in someone other than the GR that will become present possessory estate. Something that can terminate the possession i. o Words of purchase: to A o Interest: A has PP o Words of limitation: for life  A has PP interest in life estate o O retains reversion o When he dies. But if = condition subsequent ii. 3 types of vested remainders i. his successors in interest gets reversion and A gets land for his entire life Problem 2 pg. A’s life estate is non-fee simple. No condition precedent. if it is ever so used then to B. 230 – O conveys “to A for life. If/but if distinction i.

X unmarried at time of instrument c. Remainder that does not meet the definition of vested i. Interest can be diluted 2. To my daughter for life and then to her children a. Class DOES NOT CLOSE if cannot name one person yet ii.1. Ex. Contingent a. Ex. To X for life then to his spouse. 3 ways to get there: i. In a class – someone could join the class a. Rule of convenience: i. not even survive. Ex. Vested remainder subject to open 1. to B o A  interest is pp. Condition precedent ii. limitation – for life. Remainder in an unascertained person 1. If time for possession has arrived and at least one person is ready to take. then the class closes 1. Contingent remainders vest at the time the condition is met b. Class closing rule: i. A has PP interest in a life estate o B  interest is future because A has PP interest  Now figure out whether remainder or EI  B is someone other than the GR  B will get possession immediately because he gets it after A dies which is the natural expiration of a life estate  Non-fee simple estate – yes because life estate  Created in one instrument – yes because all in the same deed o B has a remainder  Now figure out what type of remainder: vested or contingent?  It is possible to identify at least one person to step on that land because B can  Condition precedent of A needing to die before B gets on the land 18 . To A for life but if he starts smoking again then to C 2. To Johnny for life then to Johnny’s heirs (won’t know who the heirs are until Johnny’s death) 2. Do not need to do anything. Vested remainder subject to complete divestment 1. Definition by exclusion ii. CANNOT be destroyed or diluted 2. Remainder in an unborn person iii. to obtain it ii. So if daughter has more children before she dies then all children share (interest can be diluted) iii. then if B is alive at A’s death to B and his heirs” o Words of purchase – to A. Condition subsequent 2. Property law recognizes a child in the womb  Hypo: O “to A for life. Policy: highest and best use d. When time for possession has come and at least one member of the class is ready to take then the class closes ii. Ex.

then to B’s children and their heirs”. can be diluted by more kids o B’s children have vested reminder subject to open in FSA C3 born? 19   . then if B graduates law school. but possession will not arise until prior estate ends. to B and his heirs o To A and To B o A  interest = PP. assume at the time of conveyance B had 2 kids – C1 and C2 o To and to B’s children o A  PP interest. and children have no condition. natural expiration of 10 years and leasehold estate is non-fee simple  Can identify at least one child. when A dies Hypo: O “to A for 10 years. limitation – 10 years  estate for years  A has PP interest in an estate for years o B’s children  future interest  Remainder because A has PP. limitation = for life  A has PP interest in a life estate o B  interest = future because A has PP  Remainder because meets the definition  Can identify B but there is a condition precedent  B has a contingent remainder in a FSA  FSA because of words of limitation o O keep anything?  reversion if A dies and B fails to meet condition  Don’t care if O lives because can go to his successors in interest Hypo: B graduates law school but dies before A o The contingent remainder was met because B graduates – now meets the condition so remainder vested o Just because he did not survive does not matter unless expressed in the document o B has an indefeasibly vested remainder so his heirs gets the property when A dies o B’s interest vests when the condition is met. created in same doc. O’s reversion goes to his successors in interest Hypo: O “to A for life.  o Not vested because does not meet 2 part test o B remainder is not vested  B has future interest in a contingent remainder  Words of limitation for B’s contingent remainder – and his heirs  Modern trend. no words of limitation attached to the interest = FSA o Under feudal times it would’ve only been considered a life estate if didn’t have and his heirs o B has a contingent remainder in a FSA o O has not given everything away – reversion – because if B died before A did then who does the land go to  O  If B did not meet the condition then B would not get it. is not O. do not need and his heirs to be FSA.. so O kept something for himself  Don’t care if O is dead when reversion kicks in. not even need to survive o Vested remainder  subject to open.

not possessory until married Hypo: O “to A for life. EI that in order to become possessory. B was childless? o Reclassify everything! o A still has PP interest of estate for years o The remainder becomes contingent because no children – unborn.  o Gets to join the class C4 born 11 years after? o Too late because the rule of convenience cause the class to close at termination of the earlier estate At time of conveyance.  Words of limitation – life estate  B has a shifting executory interest in a life estate o O keeps reversion Hypo: O “to A for life. to B 20   . GE  GE  Hypo: O “to A upon A’s marriage to B” o Words of purchase – to A o A  future interest  Apply definition of remainder.I.I. but if A remarries. Definition by exclusion 2. divest or cut short some interest in another GE b. not non-fee simple  E. to B for life” o Words of purchase – to A. divest to the GR following a certain period of time during which no other GE is entitled to possession b. EI that in order to become possessory. cannot name at least one person  Now subject to destructibility of contingent remainders and depends on jurisdiction to see whether contingent remainder stricken or converted into springing EI f.I.” o Words of purchase – to A.  Springing because GR  GE o The interest is created now. Shifting a. to B o A  pp interest in a life estate subject to a shifting executory interest because words of limitation – for life and B can take it o B  future interest. Interest goes back to GR and then springs forward to GE c. once O created deed. not a remainder because will not terminate at natural expiration of life estate. 2 types 1. then one year later. shifting E.s  Going to GE  GE. Executory interests i. will stop early  Look at both E. thus. EI vest at the time of possession ii. Springing a. to B and his heirs. GR  GE 2. A future interest in someone other than the GR that is not a remainder 1.

” o Words of purchase: to A.    o A  pp in life estate.” o Words of purchase: to X hospital (in gift) o Interest: pp o Words of limitation: so long as = magic word for FSD  X hospital has pp interest in FSD o O retained possibility of reverter 21 . to O” o B would have vested remainder subject to complete divestment in a FSSCS  Use magic words Hypo: O “to A for life. if the land ceases to be used for hospital purposes the conveyance shall be null and void. because not upon immediate natural expiration of prior life estate  Springing because goes back to O before B  B has springing executory interest in a FSA o O has reversion subject to a springing E. then to B and his heirs.I. then to A’s heirs and their heirs” o words of purchase: to A. cannot identify at least one other person because no idea if heirs exist o Can we identify at least one if became possessory? No o Only know heirs when someone dies. then to B and his heirs. E.I. so long as the land is used for hospital purposes. so does not matter if already has children because they are likely to be heirs but could pre-decease A o Analyze according to the moment the interest was created!  A’s heirs have contingent remainder in a FSA o O kept nothing Hypo: “to X hospital forever. to C and his heirs. to B. to C o A  pp interest in a life estate (immediate. Hypo: O “to A for life. not subject to anything because nothing can cut A’s possession short) o B  future interest  Remainder – subject to a complete divestment because of condition subsequent that can cut short possession  B has a vested remainder subject to complete divestment in FSSCS subject to shifting executory interest o C  future interest  EI (because not upon natural expiration and not non-fee simple)  Shifting because from GEGE  C has shifting executory interest in a FSA o O retained nothing Hypo: O “to A for life. but if B starts smoking again. not subject to anything because A has a perfect life estate o B  future interest. for life = LE. to A’s heirs  in this case A’s heirs are words of purchase not words of limitation o A  pp interest in a life estate o A’s heirs  future interest  Remainder ( because fits the definition)  Vested or contingent: apply definition of vested  No condition precedent. but if B starts smoking again.

estates are both legal or both equitable (if trustee in document) b. then to A’s children” (assume A has C1) o Words of purchase: to W. Equitable interest = trustee b. RESULT  if all elements met. When single instrument creates life estate in GE and also creates a contingent remainder in that GE’s heirs. 5 rules – ALL APPLY AT THE MOMENT THE INSTRUMENT IS CREATED 1.” o Words of purchase: to X. if at least one member is ready to take then the class closes (in order to develop land at highest use and concern is the current members in class would not spend money if their interest would continually be diluted) o Only C1 gets land  Rule of convenience: productive use of property g. then the contingent remainder in GE’s heirs becomes a remainder in the LE holder i. she gets to live there until she dies o A’s children  future interest  Vested remainder (apply both remainder and vested definitions)  A’s children have vested remainder subject to open o O keeps nothing What if before W dies A has C2 and C3? o Class opens to include all 3 kids What if W dies before A has C2 and C3? o Class closing rule – when time for possession has come. if GE’s heirs not purchasers then this rule does not apply c. to B o X  pp interest in FSD subject to shifting executory interest (from above example) o B  future interest  Not remainder because FSD is fee simple  Shifting EI because from GEGE  B has future interest in shifting EI in FSA  If B ever gets the land then it will be forever  GR gave B his possibility of reverter Hypo: “to W for life. then to T Trustee for the benefit of A’s heirs” a. then check to see if any CL rules in the jurisdiction ii. so long as the land is used for hospital purposes. Rule in Shelley’s Case – rule of law. Give one estate in legal title and one estate in equitable title 1. In WOP – MUST say “to GE heirs”. Common Law Rules i. Create EI instead of CR 22 . A has legal interest and A’s heirs have equitable interest ii. if the land ceases to be used for hospital purposes to B and his heirs. After interests in land analysis complete.    Hypo: to X hospital forever. to A’s children o W  pp interest in a life estate  Everything fine. Ways to AVOID: i. “to a for life. so will apply despite GR intent a. Ex.

then to B and his heirs”. instead of “to A for life. then 1 day later to A’s heirs” a. then to A’s children” b. then to A’s heirs” draft: “to A for life. Do not use GE’s heirs as purchasers 1. then to A’s heirs and their heirs. Ex. Because it is not a remainder. springing EI. then to A’s heirs” o Rule of merger applies o A has pp in FSA Hypo: “to A for life. Merger Rule a. Way to avoid the term “heirs” d. then to A’s heirs” o After applying rule in Shelley’s case – A has a life estate and a remainder in FSA 23   . then move onto CL. A then buys B’s remainder. FL abolished this rule  Hypo: O “to A for life. “to A for life. if heirs are not purchasers then immediately does not apply a.” o Words of purchase: to A. the Shelley rule does not apply iii. then to A’s issue” i. now A has pp interest in life estate and remainder in FSA o Rule of merger allows to merge because nothing in between o A now has pp in FSA Hypo: “to A for life. When 2 interests in the same parcel are held by the same person and the 2 interests are not separated by something indestructible. to A’s heirs o A  pp interest in life estate o A’s heirs  future interest  Contingent remainder (apply vested and remainder definitions)  Not vested because cannot identify one taker  A’s heirs have contingent remainder in FSA o After classifying interest and estate. “to A for life. if instruction say all CL rules abolished or only do the former then done here Told to analyze CL o Shelley’s  Single instrument – yes  Life estate – A  CR in GE’s heirs – yes  Both legal or both equitable – both legal  Rule in Shelley’s case applies o Now A has a life estate and has a remainder in FSA A has pp in life estate and remainder in FSA 2. the interests are merged  Hypo: “to A for life. Ex.1.

Doctrine of Worthier Title – rule of construction. GR conveys a life estate to a GE with a contingent remainder in the GR’s heirs. Devise the property through a will ii. Looking for “GR’s heirs” in WOP b. FL abolished this rule  Hypo: O conveys “to A for life. GE has life estate and that GE’s heirs do not have contingent remainder so rule does not apply o O keeps nothing  Hypo: O “to A for life. then to B for life. the remainder is void and the GR has a reversion i. Put in sufficient evidence to rebut DWT in drafting d. to O’s heirs o A  A has pp interest in a life estate o O’s heirs  future interest in a contingent remainder in FSA 24 . then to O’s heirs” o First classify the interest and the estate o WOP: to A. Do not have GR’s heirs as purchasers iii. if need to rebut presumption then need to produce concrete evidence to the contrary c. so comply with GR’s intent a.o Then apply rule of merger – A has pp interest in FSA  Hypo: “to A for life. Problem – usually no language of GR’s intent (rule of law that will only be used if furthers GR’s intent) i. Presumption that GR’s intent will be implied wherever the rule applies 1. then to A’s heirs” o A  pp in life estate o B  indefeasibly vested remainder in life estate o A’s heirs  contingent remainder in FSA o Apply Shelley’s Rule  Single instrument –yes  Life estate in GE – yes  CR in that GE’s heirs – yes  Both legal or both equitable – yes  RULE APPLIES o A now has life estate and remainder in FSA o Apply merger rule  Nothing can be in between  DOES NOT APPLY o A has life estate and remainder in FSA (assumed vested remainder because what made it contingent [not knowing who the heirs were] no longer exists) o B has indefeasibly vested remainder in life estate 3. to B’s heirs o A  pp interest in life estate o B  future interest in contingent remainder in FSA o Apply Shelley’s Rule  Yes single instrument. then to B’s heirs” o Words or purchase: to A. Ways to AVOID: i.

O dies leaving a will that devises his interest in land to girlfriend Bambi (DWT does not apply in this jurisdiction) o If DWT no longer applies then A has pp interest in life estate and O’s heirs have contingent remainder  Not Bambi because O was devising something he did not have because gave away life estate and gave away remainder to his heirs Hypo: if married Bambi o Then Bambi by statute as intestate heir would be heir and she would get some too Hypo: Bambi as girlfriend in jurisdiction that does apply DWT with same facts o O keeps reversion after applying DWT. then if B marries C to B” o WOP: to A. instead VRSTCD ii. or he could get married  Do not know heirs until person dead o CL  CR in GR’s heirs so DWT applies and GR has reversion after A’s life estate Hypo: assume 5 years after conveyance. then to my heirs” ( assume at time of conveyance he is a widower and O’s only living relatives are mother and 3 daughters. Destructibility of Contingent Remainders a. C2 and C3) o WOP: to A. C1. C2 and C3 maybe his heirs but could also all predecease him.    Contingent because do not know O’s heirs because he is still alive o Apply CL  DWT fits so O’s heirs CR void and O keeps reversion after A’s life estate Hypo: O “to my mother. O can convey. sell or devise the reversion so O’s reversion is devised to Bambi  4. time for possession has arrived and it is still contingent remainder then it is destroyed i. Minority – above (FL) ii. Give it to a trustee  Hypo: O devises “to A for life. Ways to AVOID: i. to my heirs o A  A has pp interest in life estate o O’s heirs  future interest in contingent remainder in FSA  Mother. Unless a contingent remainder shall vest at or before the termination of all estates prior to it in possession. B has yet to marry C and jurisdiction has DCR rule 25  . it shall be destroyed. No CR. C1. Majority – modified DCR  contingent remainder becomes a springing EI b. Ann for life. to B o A  pp interest in a life estate o B  future interest in contingent remainder in FSA o O  keep reversion because B may never meet that condition Now assume that at A’s death.

then to A’s children” (assume A is childless at time of conveyance o Rule in Shelley’s case does not apply because heirs are not purchasers Hypo: O “to A for life. Reversion. to the children of B o A  pp interest in life estate o Children of B  future interest in CR At A’s death. then converts CR to springing EI  Land will go back to O for a bit. All future interest in GR 1. possibility of reverter. right of re-entry ii. then to A’s heirs o Rule in Shelley’s case applies o A would get land in pp FSA Hypo: O “to my wife for life. then if B graduates college. Indefeasibly Vested Remainder 26 . VRSTO. then O’s successors get it Hypo: O “to A for life.         o Under DCR. NOT ALLOWED TO BE TOUCHED i. Only future interests are vulnerable and therefore all must be tested i. B’s CR is destroyed and O now owns the land when A dies  O’s successors in interest get the land if O is dead before A dies Assume DCR does not apply o In jurisdiction that modified DCR. to B o A  pp interest in life estate o B  future interest in CR in FSA In jurisdiction of DCR. then to the children of B” (assume that at time interest is created B does not have children) o WOP: to A. All EIs ii. Any class gift 1. VRSTCD if a class b. VRSTO iv. A dies unexpectedly before B graduates o Land goes to O because B’s CR is destroyed o O now has FSA In jurisdiction of modified DCR o B has future interest in springing EI o O has land in FSA subject to springing EI  If O dead. to B and his heirs” o WOP: to A. Rule Against Perpetuities – APPLY THIS LAST a. then to O’s children” o DWT does not apply because not GR’s heirs are not purchasers 5. All CRs iii. EI in class. until B meets condition  O has land in FSA subject to springing interest  B has future interest in springing EI Hypo: O “to A for life. CR in class. B has yet to have a child o In jurisdiction of DCR: O gets land in FSA o In jurisdiction of modified DCR: O gets land in FSA subject to springing EI and children of B have future interest in springing EI Hypo: O “to A for life.

Test at time conveyed 2. Vulnerable interest does not violate RAP. Not a purchaser because already in second level ii. if living i. Ex. 2 person to test = purchasers in the order in which they appear in the instrument i. Test at time of GR death d. KEY  CANNOT USE A CLASS AS A VALIDATING LIFE UNLESS AT THE MOMENT THE INTEREST WAS CREATED THE CLASS IS ALREADY CLOSED i. no more kids (regardless of frozen sperm. IT IS IMPOSSIBLE FOR _____________ MORE THAN 21 YEARS AFTER ____________’S DEATH 1. if this can be true: i. 1st blank = condition or someone joining the class (what is making it a vulnerable) a. Devise a. 4 person to test = anyone else mentioned as relevant in the document i. Not going to get there in this class but be aware for practice e. CALCULATED FROM THE TIME THE INTEREST WAS CREATED 1. Perpetuity period i.) 2. 2nd blank = lives in being at time the interest was created a. once make statement true then proven it does not violate RAP ii. only go to second level if first level does not work nd b. to A for life then to B’s children iv. Must be by conveyance because devise means he is dead ii. Someone not named in instrument but makes sense iii. After dead. A then B then C c. Test B even though he is not a purchaser th d. If GR makes statement true then done because does not violate RAP. Many instances there is not one ii. Anyone can have child until death because can adopt b. Closed naturally 27 .c. 1st person to test = GR. OR a. By conveyance. 21 years to wait for children to reach majority and gestation period only if fact pattern says someone is pregnant ii. etc. Lives in being + 21 years + relevant periods of gestation (only if fact pattern says someone is pregnant) 1. 3rd person to test = intervening generation i. Again.

this jurisdiction has RAP o WOP: to A. if liquid is sold. to B o A  pp interest in FSSCS subject to shifting EI o B  future interest in shifting EI in FSA o Apply RAP  It is impossible for liquor to be sold on blackacre more than 21 years after A’s death. if liquor is sold. RESULT: If exhausted search and vulnerable interest flunks test then it becomes void and strike it g. GR. can only be closed if B is dead at the time of conveyance f. REMEMBER THE KEY 28   .  Not true so must continue. to B’s children o A  pp interest in life estate o B  future interest in VRSTO o Apply RAP  It is impossible for more kids to be born more than 21 years after A’s death. do not need to strike because does not violate the rule Hypo: O devises “to A and his heirs provided that liquor is not sold on blackacre. Ex.  YES  does not violate RAP  B gets to keep CR in FSA.” o O keeps right to re-entry Hypo: O devises “to A for life. to A for life then to B’s children iii. O could die tomorrow  It is impossible for B to graduate more than 21 years after A’s death.  Not true  NO LIFE CAN MAKE STATEMENT TRUE  MUST STRIKE the EI o Becomes: O devises “to A and his heirs provided that liquor is not sold on blackacre.  Not true  It is impossible for liquor to be sold on blackacre more than 21 years after B’s death. then to B’s children” (B has one child at the time of O’s death) o WOP: to A. to B o A  pp interest in life estate o B  future interest CR in a FSA o Apply RAP  It is impossible for B to graduate more than 21 years after O’s death.ii.  Not true  It is impossible for more kids to be born more than 21 years after B’s children’s death. Infectious invalidity applies when the entire gift is terminated i.  Class must be closed when interest created for it to validate o Cannot use it. Cannot use B’s children unless class already closed. then if B graduates to B”.  Not true for same reason as O  It is impossible for B to graduate more than 21 years after B’s death. had he known one part would be void he would want entire interest to be gone  Hypo: O conveys “to A for life. to B and his heirs” o WOP: to A.

then to A’s grandchildren and their heirs” (A is 60. to Charles and his heirs. has one son S who is 30. to A’s grandchildren o A  pp interest in life estate o A’s children  future interest in VRSTO in a life estate o A’s grandchildren  future interest in CR in FSA o Apply CL Rules  Shelley’s  Someone’s children are not heirs  Need to have “to their heirs” as WOP  Modified DCR  If when A’s children die and no grandchildren are born then become springing EI. C’s shifting EI is kept  o Hypo: O conveys blackacre “to my daughter A for life. but if Bill divorces. merger.  TRUE! Hypo: O devises “to my wife Anne for life. will go to the GR and then to grandchildren when she can  DWT 29 . then to our son Bill for life. to B.” (each of CL rules applies) o WOP: to A. classify interest in estates and address whether any of them would be affected by CL rules. then to A’s children for life. It is impossible for more kids to be born more than 21 years after B’s death.  TRUE! o Therefore. DCR and after all those RAP o Apply Shelley  Life estate in GE – yes  CR in that GE’s heirs  No CR and no one’s heirs purchasers here  Needs to say – to A’s heirs  Both are legal o Apply DWT  Only applies if by conveyance  Life estate in GE – yes  CR in GR’s heirs  No CR and GR’s heirs not purchasers o Apply DCR  No CR so does not apply o Apply Merger  Nothing can come together o Apply RAP  A is safe because her interest is not future  It is impossible for B to divorce more than 21 years after A’s death. all CL rules apply with modified DCR o WOP: to A. to A’s children. DWT.  Not true  It is impossible for B to divorce more than 21 years after B’s death. S has no kids). to C o A  pp interest in life estate o B  future interest in VRSTCD in life estate subject to shifting EI o C  future interest in shifting EI in a FSA o Apply CL rules in lesser rules first – Shelley.

BANKS LOVE because they are familiar with mortgages e. if O dead then successors in interest  9.  Not true o It is impossible for A’s children to have more children more than 21 years after A dies. Co-op i.  O gets reversion  Life estate. Few internal controls 1. Mortgages 1. Used to finance. b. 30 . Hard to restrict the alienability of condos. Condominiums and Co-ops Income tax – very similar Physical characteristics – very similar Property law standards – very different Condo i. owners free to buy/sell v. d.  cannot test class if not closed at the time the interest is created o Cannot use A’s grandchildren because open class o A’s grandchildren’s CR is gone. Owner has a real property interest a.  Not true o It is impossible for A to have more children more than 21 years after A dies. Present possessory and can give away future interest (go through interest in estates in land analysis) iii. Individual owners obtain individual loans to finance condos iv.   RAP  No GR’s heirs as purchasers even though all family.  Not true o It is impossible for A’s children to have more children more than 21 years after A’s children die. Real property interest + undivided interest in common areas as TIC 1. Personal property (stock) + proprietary lease + blanket loan + more restrictive + share loans a. think they will be his heirs but do not know Find in WOP A’s children o It is impossible for A to have more children more than 21 years after O dies. have to strike it  A’s grandchildren’s interest stricken.  TRUE  A’s children VRSTO kept A’s grandchildren o It is impossible for A’s children to have more children more than 21 years after O dies. c. then life estate then back to O. Real property interest + undivided interest in common areas as TIC + individual loans + few internal controls + mortgages ii. Individual loans 1.

Often 1/3 of the assets. Ex.Marital Interests a. Ex. then can get percentage a. Bank accesses loan differently because evaluating the association instead of individual owners c. FL is 30% i. Dower replaced with “spousal elective share” 1. 99 year leasehold – non-freehold so no seisin ii. Separate property states 1. Two jurisdictions of states describing how property owned in a marriage i. Divorce  try to follow equitable dissolution i. Each spouse owns separately what he/she earns during the marriage 4. Share loans 1. Proprietary lease 1. Each owner has a proprietary lease which lets him occupy that unit 2. the security interest given to the bank is the “shares” the owner has in the association 2. More restrictive 1. Dower – wife gets life estate in 1/3 of all real property the husband ever had 1. Co-op association gets ONE BIG blanket loan from lender and then distributes the debt among the owners a. Can be more or less than what spouse should get 31 . Banks less familiar with and do not prefer 10. trust – non-freehold so no seisin ii. Blanket loans 1. Instead of getting mortgage. Way for low-income people to own an estate in land b.ii. More internal controls on prospective purchasers because they must be reviewed and accepted by the board a. The property itself is owned by the co-op association and each individual owner has personal property in stock of that association 2. Unit owner owns intangible personal property iii. Aka: title states or CL states 2. Each gets spouse gets ½ (just like community property states) b. If one member fails to pay then their default is felt by everyone v. When source of wealth become stuff other than real property then problem arose a. Prospective owners that are denied can challenge denial based on civil rights but that is it vi. Aka – occupancy agreement iv. If spouse does not like what got in will. Why many states abolished dower i. Personal property 1. Issues regarding dissolution of marriage a. Death i. During ongoing marriage the existence of marriage does not affect title to property 3.

Article X. Wisconsin 3. Must be FL resident ii. Some states sliding scale percentage depending on length of marriage but never exceeds 50% ii. Property. Idaho. Louisiana. Someone who does construction on house and does not get paid 12. TX. And actual intent to remain in FL indefinitely iii. Mechanics lien holders a. CA. Creation i. Elements: i. EXCEPTIONS: i. Policy: highest and best use of the land c. WA. NM. When someone transfers to another an easement i. Expressly: MUST COMPLY with SOF (in writing and signed by the party to be bound) 1. Federal. EXCEPTIONS: 3 exceptions of super-creditors that can force a sale: 1. Can protect 160 acres outside municipality 2. Property either spouse had before the marriage remains separate property ii. NV. Way of making sure the people that live in the state get to live in their home b. Whatever earned by the partnership is equally divided among both spouses b. Grant a.Easements – “RIGHT TO USE” a. Look for SOF problem d. even if received during marriage. Mortgage lender or home equity lender 3. Size limits: 1. Within municipality only ½ acre can be protected iv. FL has NO DOLLAR CAP i. Using someone else’s land for a long period of time and then get right to continue using it (like adverse possession but do not get possession just get right to continued use) b. AZ. need: 1. No issue with marriage dissolution by divorce or death because already divided in half 11.Homestead a. state and local taxes 2. Protection from creditors for principle residence i. Government a. Intent 32 . Partnership theory of marriage a. Do now have certain restrictions in regard to federal bankruptcy v. 9 states a.b. § 4: protects from forced sale by creditors and also restricts owner from transfers or disinheritances under certain circumstances and from devising it outside of the family c. Because transfer of land. received as gift or inheritance remains separate 2. Community property states 1.

Acceptance b. Some jurisdictions want more than reasonably necessary iii. at some point and time a grant existed but it has been so long that it disappeared i. Single owner who burdened one parcel for the benefit of another ii. Person who originally had the parcel conveys that parcel to another but retains and reserves for himself an easement ii. Change in owner 1. Open and notorious manner iv. Essentially asking the court to add language to the deed because as is the deed contains no language regarding an easement i. Fiction that deed once existed then was lost. Used the land ii. Must prove that the benefit is reasonably necessary for the benefited parcel 1. Clearly. Prescription – CANNOT OBTAIN A NEGATIVE EASEMENT BY PERSCRIPTION 1. Elements: i. the parties MUST HAVE intended there to be a deed  MUST HAVE NECESSITY c. Land in common ownership ii. Implied 1. Appurtenant easement presumed because it is more typical and appurtenant easements transfer automatically with the transfer of the dominant estate 2. In connection with SOF b. Elements: i. Severance creates the strict need for the easement b. Policy: highest and best use of the land 2.2. Claim of right (without permission) iii. Quasi easement a. When language ambiguous: i. The burden was apparent at the time of the severance 1. The single owner transferred one parcel and retained the other b. leased the property i. Reservation a. Delivery 3. If arguing for this. Lost grant (very rare) a. Severance can occur: a. Transfer property b. Common owner grants land with no accessible right of way to the GE except over GR land c. ***Making or breaking point for most cases*** 2. Strict necessity a. Change in possession 1. Ex. Continuously 33 . Parties have been behaving as if there must have been a grant ii. Severed into 2+ parcels iii. Elements: i. MUST PROVE to the court this is OBVIOUSLY what the parties INTENDED iii. from circumstances.

in letter. 3 types of notice i. Ouster v. Used the land ii. KNEW OR SHOULD HAVE KNOWN a. policy – so that we can rely on title searches iv. Required time (check jurisdiction) 1. Cannot tack: a. Ex. Use was adverse (hostile) to the interests of the servient owner 1.1. In FL  must overcome the presumption of permissive use viii. Required time (check statute) vi. that the adverse user (not certain which of two theories) stops his use before the required time has run? Is that good enough? 34 . Focus on the CLAIMANT a. *exclusivity not normally mentioned. Constructive record notice iii. If admit to obtaining permission then lose on claim of right AND adverse use  Page 324 Note 2 o Servient estate owner demands. Can tack previous time 2. Claim of right (cannot be permissive) iii. Open and notorious manner 1. Abandonment b. one is deemed to know that which has been duly recorded. but if it does it is not the same as adverse possession 1. Elements: i. Something from the facts that should have made you ask iv. see guy crossing the path and kind like oh man to yourself but let him keep doing. FL – CL 20 year time period vi. feel like you cannot stop the person from doing what they are doing so submit to the behavior 2. Owner of servient estate. submission to letting him do it a. Inquiry notice v. passive) 1. Is he proceeding without recognizing anyone’s right to block him? i. Continuous v. With acquiescence of the owner of the servient estate (submission. Focus on owner of servient estate owner and see whether servient owner is submissive. Adverse use – no SOF issue a. Can tack when privity 3. Need to put up impregnable barrier vii. Actual notice ii. Means you alone must meet the elements 2. acquiesced 2.

Characteristics i. Specific v. nonexclusive (presumption) easement  If lost grant then not submissive and the letter is good enough  If adverse use then not good enough because needs to put up and impregnable barrier  The term “adverse use” applies to both theories o Now in adverse use jurisdiction. both a dominant and servient estate i. Y has lot on water with on one story. specific. Negative 1. Affirmative a. Specific a. In Gross 1. Only have servient estate. Servient estate – parcel that is burdened by the easement 2. right to remove timber. not ejectment  If just get tort trespassing verdict then that is good enough because then can take actions of enforcement e. injunction  Here against trespasser. owner of servient estate walks into my office and says neighbor keeps walking over and that is okay but I do not want him to have a legal right to do this forever. Gives the easement holder the right to perform an act on or use the servient estate owner’s land i. affirmative.Appurtenant. Dominant estate – parcel that benefits ii. right to remove citrus 2. Benefits the land owned by the holder of the easement. no dominant estate because no land benefitting only the one burdened ii. increase the use. Personally benefits the easement holder b. X has west lot and 2 stories. Gives the easement holder the right to prevent the servient estate owner from doing something on his/her land i. utility or value of a parcel of land. Profit – type of affirmative easement allows the holder to enter the land and appropriate something of value 1. Ex. Gives the easement holder only the right to use a particular part of the servient land 35  . right to fish. No other parcel benefits i. General 1. Appurtenant a. X can ask for negative easement iii. Affirmative v. In Gross a. Appurtenant v. how prevent?  Grant permission  Negates claim of right and acquiescence o Now do not want him crossing over land at all?  Must physically stop the trespasser  If all that does not work then file an action in court. Negative a. X can see the ocean because higher than Y and does not want to lose view because Y could build up 1. Ex.

Both appurtenant and in gross easements are transferrable. Geographically limited 2. X wants easement through Y’s property to get to new street o X will ask for easement from Y  Appurtenant. the easement may be used for “any purpose to which the dominant estate may then. Hayes v. The parties clearly intended to make it assignable. Appurtenant  PRESUMED TRANSFERRABLE a. Non-exclusive a. Does not specify where the rights may be exercised on the servient land iv.i. Aquia Marina. Policy: highest and best use. Inc g. New public highway on north border of Y’s lot. only an IN GROSS easement o Not profit a prendre because nothing stating A took animals off the land o General Hypo: X wants right to use Y’s roadway to get a new highway. Exclusive v. reasonably be devoted” 1. Transferrable if and only if: i. Transferability i. Very rare 1. There could be other similar easements concurrently i. Ex. or in the future. Y owns north lot. Ex. where it would be dangerous to society to allow other easements at the same time. Presumption for  Hypo: A conveys 100 acres of woods to B but A retains right to hunt and fish on B’s land o A has not retained an estate in land. Exclusive a. MORE LIKELY that appurtenant is transferrable compared to in gross because in gross is personal to the person 1. If easement is not limited/restrictive than anyone can use it as long as it is reasonable 3. nonexclusive easement  Created by Y expressly granting to X  f. general. or 36 . Presumed to transfer with the transfer of title of the dominant estate regardless of whether the deed mentions the easement b. Presumption against ii. In Gross  FIND EVIDENCE TO PROVE TRANSFERRED a. Easement is created by grant or reservation and the instrument creating the easement does not limit the use to be made of it. If that easement prohibits similar easements from existing concurrently i. Need to draft easement with limitations in order to stop this from happening 2. high voltage places. Non-exclusive 1. X owns south lot. Scope i. General a. protects GE of dominant estate from GR if he forgot to transfer easement with the grant 2. affirmative. high speed rail 2.

Common Stock Rule 1. just using his own property to help his own property 5. In gross commercial lease that looks transferable because the language of “his heirs and assigns forever” ii. By merger when the title to both the servient estate and dominate estate comes into the same hands a. cannot be divided. Easement ends by prescription a. Even though transferrable. Easement can terminate if it has been abandoned a. Reasonably relied on facts and took action based on that reliance then can make an estoppel argument 8. MUST FOLLOW for both easements in gross – intentions and commercial iv. Did something to show a reasonable reliance to own detriment ii. 37 . Hypo: X and Y own own land in FSA with roads on each side. if apartment building is gone then no need for parking lot 9. Need to show intent to abandon b. Mere non-use. anything commercial) iii. could say time period or could say upon some event 2. End up owning both properties then no longer an easement. Holder of easement releases the easement to owner of the servient estate 4. Expenditure of sums in reasonable reliance to the detriment of the person that relied thereon. Easement implied by strict necessity will end when the need ends a. Easement ends by destruction of building that serves as the dominant or servient estate a.ii. Lutheran 1. Easement extinguished by estoppel a. Whenever strict needs disappears so does the easement 3. RULE: “heirs. Easement ends if holder of dominant estate misuses his easement in such a way that it is impossible for a court to enjoin the misuse a. express easement that X gives to Y to drive through property. Could say date. Express easement can terminate by agreement of the parties a. Ex. Just trying to prevent the misuse is not good enough b. MUST be used together. Corbett. even for a long period of time is not good enough 7. 11 ways to terminate 1. Miller v. Y wants to cross X’s land to get to lower street. If the owner of the servient tenement obstructs the easement area in an open notorious way (with an impregnable barrier) or otherwise interferes with the rights of the easement holder for the prescriptive period. all transferees must handle easement together 2. It is a commercial easement in gross (presumed transferable/assignable and does not have to be a profit commercial easement. Termination i. Ex. equity and fairness i. then easement does not exist anymore (estopped from continuing easement). Look at language of easement b. the easement is extinguished 6. successors and assigns”  language to show completely transferrable and indefinite h.

i. it does not have to comply with SOF b. Easement terminates b. LE goes onto farm and gets tagged animals 1. specific and nonexclusive c.Licenses a. affirmative. License coupled with an interest is irrevocable during term of interest a. then that is ok 11. purchaser did not know about W easement. Permission by the title owner permitting someone to use the property i.i. At that time. Easement upheld c. Since a license is not an interest in land. license becomes irrevocable for that particular time since LR sends signals of duration even though at law can revoke at any time 38 . guy sold to purchaser. Easement upheld d. does not say how to get them. Hypo: guy who purchased Mr. LE can go onto property to get cows but once gets off property then license becomes revocable 3. appurtenant. Estoppel Theory a. GO TO COURT AND RECORD EASEMENT ONCE OBTAINED BY PRESCRIPTION ii. If title changes hand while attempted to get prescription. Expressly by grant. Easement ends if servient estate conveyed to a bona fide purchaser and purchaser without actual/constructive-record/inquiry notice about the easement a. If purchaser told purchaser? i. Hypo: now Y gets dedicates new road on his land to the public. Hypo: LE buying cows from LR. Where licensee has interest in licensor’s property i. General rule: licenses are freely terminable i. Licensee expended sums upon reasonable reliance of licensor’s representations regarding duration of the license b. THIS IS EXAMPLE OF MISUSE TERMINATION because there is no way to allow Y’s use to continue and stop the public from driving through 10. public starts using the dedicated portion and then keep going through X’s lot. Licensee must have reasonable time to remove himself and his effects 2. X does not want who public using it i. Easement ends if servient estate is condemned by the government 13. If W recorded easement? i. Hypo: get easement by prescription. W kept easement to hunt and fish. Easement by prescription owner’s loses easement because bona fide purchaser did not know 1. do not go to court and record and then title changes hands i. Woodlands land. EXCEPTIONS 1. still during required time. that connects with Y’s easement through X’s land.

Court may read into it a reasonableness standard so not unenforceable for vagueness c. Cannot be too vague (must be able to discern the parties intent) i. Vertical: privity between such parties and their respective successors in title i.14. Ex. Either: mutual or GR/GE 1. Can get legal damages. Mortgagor/Mortgagee c. Cannot be unreasonable as a matter of public policy i. CTE with FSA could transfer only a LE and transferee could enforce 39 . Elements: 1. A writing that is signed by the party to be bound thereby 2. Covenant that runs with the land at law 1. Conveyance by sale. Looking for a conveyance of land from one of the original covenanting party to another and at that very moment they enter into a covenant c. Must have horizontal and vertical privity (NEED BOTH) a. Intent is relevant at the time of the agreement i. LL/TN b. Covenant must be enforceable a. enforced by the law ii. Caveat: if benefit of promise is only in gross then covenant does not touch and concern 4. then not burdened iii. Co-TN d. If no notice. In a writing that complies with the SOF (interest in land) i. the original covenanting parties had a continuing simultaneous interest in the land covered by the covenant 2. Language to bind people farther in the future a. Purchaser of the burdened property MUST have notice of the covenant 2. Horizontal: privity of estate between original covenanting parties i. promise to kill someone (unreasonable) b. and his heirs. Original covenanting parties must intent that the covenant run with the land a. Created simultaneously with interest in property a. successors in interest to the land 3. assigns. Instantaneous b. Ex. gift or death b. GR/GE a.Covenants – real and equitable servitudes a. Mutual – in addition to the covenant. Covenant must “touch and concern” the land a. Real covenants i. Look to language of document 1. Affect the relationship of the parties as landowners and either increase the use/utility value of covenantees land or decrease the use/utility/value of covenantor’s land b. Easement relationship 3. Looking a CTE then only need to show an estate in land 1.

Covenant must “touch and concern” the land a. Cannot be unreasonable b. By expiration of the specific duration expressed in the covenant 1. Intent with the original covenanting parties that it run with the land a. By prescription v. Looking at CTR then successor must have gotten the entire estate in land analyzed by time dimension 1. habitual and substantial as to frustrate the original purpose of the restrictive covenant vi. If burdened property is conveyed to a bona fide purchaser without any of the 3 types of notice. Caveat: if benefit of promise is only in gross then covenant does not touch and concern i. If abandoned. habitual and substantial violations of the covenant 1. constructive on record and inquiry c. burdened proportionately a. inquiry 1. injunction) iii. Western Land v. need intent to do so and an addition. Benefit has to deal with land. Covenant terminates if property condemned by government 40 . Cannot only be a personal promise b. ex. Equitable servitudes – MAIN QUESTION. Cannot be too vague so cannot discern intent of the parties c. If the benefited and burdened parcel merged then covenant terminated by merger iv.ii. start with LE then must give LE i. Look for words used in the document – “heirs. By estoppel vii. Time dimension is getting the same future interest GR had b. Ask whether successor got the entire estate under the time dimension. Successor must get exactly what they had 2. assigns” 3. Enforceable in equity (remedies. Recall for a covenant to run with the land either at law or equity the purchaser of the burdened property must have notice viii. Violations must be general. Elements: 1. Runyon v. Affect the relationship of the parties as landowners c. specific performance. Notice – actual. In writing that complies with SOF – or – if claiming party can show equitable principles (estoppel or part performance) – or – if implied covenant is found from a common grantor with a common scheme (common idea of how to use each parcel in development) i. Truskolaski a. started FSA. actual. must give FSA. Termination of covenants: i. constructive. Willing to let someone burden land as long as some land benefited ii. If released by the benefited party iii. will the promise between the original covenanting parties stick with the land? i. Ex. successors. If not in writing check for other equitable principles 2. Time dimension. Covenant must be enforceable a. Paley ii. cannot be a benefit that only affects a person 4. Aka: reciprocal negative easement ii.

Lists GR’s name alphabetically 2. beginning with today and go backward  Find him in 1987 “Deed from C to D” o Then see if C had title to transfer to D  Now running C’s name backward in GE index beginning with 1987  Find “B to C” in 1972 o Then see if B had title to transfer to C  Run B’s name in GE index  Find “A to B” o Find that A received it from the government (stop anytime the GR is government). Truskolaski a. All interests in land are subject to recording acts b.Recordings a.ix. some jurisdictions stop at 60 years. To beat CL: a. Western Land v. then even if document that is filed  If can find it under a proper GR/GE search then wild deed (happens when not filed correctly) 41 . All necessary is the lot number  Hypo: D wants to sell property to X o First check to see if D ever had title to property – only way to see if he obtained title is by him being a GE  Go through GE index. delivery and acceptance of a deed wins i. Only way someone to prevail over CL winner is if that person meets the exact terms of the state’s recording statute 1. Need change that is so great as to make enforcement of the covenant inequitable or oppressive 2. GR/GE 1. Track system 1. then forward through GR ii. others at 47 years o If cannot find it under this system. Covenant terminates under “doctrine of changed conditions” 1. can have a private covenant that is more restrictive i. Zoning ordinance cannot override a privately placed restrictive covenant a. Rezoning is evidence to show substantial changes but not determinative 15. 2 types of recording indexes i. Very tedious 3. Go backward through GE. Same with GE a. How much “change” is enough? i. If do not trump then state reverts to CL standard (first to come wins) d. Each acts independent of the other. Covenant will stand even if the subject property has greater value as a commercial property 3. Ex. Recording is not a prerequisite for title to transfer c. Be subsequent purchaser and meet state statute standard to win b. Need fundamental changes inside and outside the property 1. CL is that the first GE to have obtained intent.

should be concerned if mortgage has been paid off security interest to bank.  this is a race-notice jurisdiction  Hypo: O to A. Subsequent purchaser without notice at the time of conveyance to you. A did not record. In good faith – no notice 3. B records. A records  B at race-notice    Hypo: O to A. 3 recording statutes i. O to B (paid valuable consideration) who knew of conveyance to A. to prevail over prior purchaser a. O to B. For valuable consideration. not necessarily equal consideration just cannot be nominal ii. Subsequent purchaser i. delivery and acceptance  B in notice jurisdiction  A wins in race-notice Now A records. B. C  At C. B records?  A at CL  A at race  B at notice  A at race-notice O to A. Race 1. A records  A at CL because was the first in time to have intent. who records first. also possible that was paid in full. O to B for valuable consideration and B is without notice. but also possible it had not  Could also find C gave easement or covenant  Could have also found “C to Y” o Under CL Y would prevail over D (CL = first in time) e. Obtaining through gift IS NEVER a subsequent purchaser ii. A does not record. A. Subsequent purchaser who records first. then will prevail over prior purchaser 2. find that he gave a mortgage to a bank sometime after 1972  “C to Bank” then “C to D”  Should have been cleared and taken off the title records (would see payoff letter).o Go forward through GR index to make sure they did not give title to anyone else  Government. B recorded o A at CL o B at race o B does not win at notice so the CL stands o B does not win at race-notice so CL stands 42 . Notice 1. Prior recording void – race a. Race-notice 1. Subsequent purchaser without notice prevails over prior purchaser iii.

can B transfer? o A and X are staking a claim to blackacre o No idea. O to B. X and C o A at CL because intent. delivery and acceptance o B at notice and it trumps A. A records in 2004. delivery and acceptance first in time o B at notice prevails over CL. C is without notice o 3 people staking a claim: A. A does not record. X can apply the shelter rule and step into the shoes of B. B to X in 2005. B is without notice. need to know jurisdiction. O to A. If a person takes from a bona fide purchaser who is protected by the recording statute.f. B to X. shelter rule does not apply  Only get the benefit of the shelter rule is buying from someone protected under the recording act. O to C. O to A. move into a race-notice jurisdiction? o A at CL o B does not win at race-notice o So reverts back to CL o Therefore. O to B for valuable consideration. the person who takes has the same rights as the bona fide purchaser had 1. X prevails because B was a bona fide purchaser protected under the notice recording act Hypo: same as above. a does not record. as recorded in 2004 What if X knew about recording of A? o Shelter rule does not care what X knows. lets say in FL (notice jurisdiction)  A at CL because first to get intent. A does not record 2002. Shelter Rule i. B is without notice. that did not happen here Hypo: notice jurisdiction. O to B for valuable consideration and is without notice in 2003. had constructive record notice  To find constructive record notice – go through GR/GE indexing system  C needs to check the recorder of deeds office and courts assume they check that of which has been duly recorded  GE first  look for O. X does not get land. found N to O in 1999  GR next  look for O and see what he did o Only going to find O to A. X would still win because shelter rule protects bona fide purchaser’s ability to transfer (B’s ability to transfer) 43     . X prevails over A o C is a subsequent purchaser without notice that prevails over prior purchaser at notice o X does not prevail over C because B would not prevail over C Hypo: notice jurisdiction. A now records. B to X. delivery and acceptance in time  B at notice because he is subsequent purchaser without notice  B trumps A  Under shelter rule. O to C. X is prevailing over A because of the shelter rule o C is not without all 3 types of notice. C is without actual notice in 2009 o A at CL because first with intent. Protects the bona fide purchaser by allowing him to transfer (convey to some 3rd party)  Hypo: O to A.

Horvath 44 . A did not record. A does not record. in a race-notice jurisdiction? o A at CL o In order for B to win at race-notice – subsequent purchaser. O to B for valuable consideration and without notice. A does not record. X should have made B record. O to B by gift without notice. Will NOT find it in the GR/GE index system ii. A records. Wild deeds i. A recorded in 2004. not A? o A at CL o B meets race-notice Hypo: O to A. C is without actual notice in 2009. without notice and first to record  Not a subsequent purchaser because by gift  A at CL remains Hypo: O to A. Ex. A now records o A at CL o B at notice o A at CL stands since B does not meet race-notice o A at CL stands since B does not meet race Same as above except B records. Deed which is outside the chain of title 1. O to B. delivery and acceptance o B does not win at race-notice so X cannot prevail o A’s CL wins Hypo: O to A. B to X in 2005. O to C. in notice jurisdiction? o A at CL o C should have known by constructive record notice  Backwards by GE  Forward by GR  Only thing that would show up on a title search is O to A because that was the only title properly recorded o X prevails over all Assume A did not record.    Hypo: O to A. C and A all staking claims over land o A at CL o X prevails over A because B would prevail over A o C prevails over X because when go backwards in GE and then forward in GR would not see O to B or B to X o  WILD DEED (B to X)  X should have done a title search because then would have found that B does not have anything. Sabo v. O to B with valuable consideration and had no notice. A does not record 2002. and then he would be fully protected   g. B is without notice 2003. instead X recorded when he got the property from B (B to X) in the last hypo? o X. in race-notice jurisdiction o X and A are staking a claim o A at CL because valid deed first in time to get intent. B to X. B records.

Run with the land and if breached they are breached the minute the deed is delivered (SOL begins at delivery) c. Covenant of seisin – GR warrants that he holds legal title. If O grants FSA and only has FSD then broke the seisin 45 . GR signature 1. Begin to run later and only affected by someone with paramount title 1. Requirements of a deed: i. Government survey c. 2 witnesses. Acceptance c. Some sort of words of conveyance 1. Covenants of title i. Written document that transfers an interest in real property to another person b. Metes and bounds b. If no real condition attached to delivery and the 3rd party is the GE’s agent the probably has delivery iii. Present covenants i. Delivery 1. Presumption deed delivered when: a. GR warranties of title which promise and protect GE from certain things ii.16. Deed recorded 2. Contains 6 covenants of title (1st three are present. FL = 689. GR agent administering the condition does not qualify as complete divestment 3. he is not being bound v. “convey”. last three are future) b. “transfer” iii. Plats iv.Deeds a. he has been seized with the land a. Future covenants i. Types: 1. Deed notarized c. GR needs to divest himself of dominion and control in order to complete delivery. Elements: i. Deed found with GE b. Address not good enough because do not know the boundaries 2. GE is benefiting. notarized for recording 2. Intent ii. Any other state requirements 1. In writing and signed by the party to be bound thereby 2. Ex. Valid description of land 1. General warranty deed a. Can use: a.01 d. GR and GE name ii. If there are conditions attached to delivery and 3rd party is only the GR’s agent then probably not delivery a.

Need expert to prove and estimate damages b. no covenant of title b. Ex. part of deed is that A will assume mortgage iii. breach covenant of seisin but not right to convey  power of attorney Covenant against encumbrances – GR warrants the land is not burden by encumbrances (mortgages. etc. TE has legal title (covenant of seisin) but no right to convey (no authority to convey) iii. Damages = purchase price + interest Covenant of right to convey – GR warrants that he has authority to convey a. not just a trespasser Covenant of warranty – GR warrants to defend against lawful claims by someone’s assertion of paramount title a. Someone can have legal title but no authority to convey i. restrictive covenants) a. Ex.2. GR could know there is clean title and still give by quitclaim simply because GR does not want to warrant it c. Violations to a city ordinance = encumbrance i. 3. b. Ex. Give without any warranty. if O sells land to A. someone who had a better title than the GR. Can be redressed from a title insurance. 5. 3. Broader than CQE because protects from any lawful claim. STILL PROTECTED BY THE RECORDING ACTS 46 . If there are encumbrances on the land then expressed exception i. FPL has right to land. signing or turning over papers 2. Special warranty deed a. 4. leins. GR will only warrant to what he knows about c. 6. Contains all 6 but GR only warrants that no defects arose while GR had the land b. Ex. easements. not just eviction Covenant of further assurance – GR warrants that he will assist the buyer in perfecting the title a. land has a mortgage. Ex. Ex. then just state that in the deed as an exception to the covenant against encumbrances ii. The mere existence of a city ordinance does not create an encumbrance Covenant of quiet enjoyment – GR warrants that buyer will not be evicted by someone with paramount title to the GR a. Quitclaim deed a. O should have made an expressed exception because this is still an exception c. trustee holds legal title for benefit of beneficiary ii.

then L gets the patent? o Estoppel by deed  the land goes automatically from L to H  L cannot deny H claim to land Hypo: Jr thinks he will get land from Sr by will. Jr transfers before Sr dies. Interest in property needs to be in writing and signed by the party to be bound in order to satisfy the SOF 47 . Law presumes that if deed accepted then negotiated (if take less than what was going to take. Jr gets loads of money by warranty deed from A o At the time of the transfer to A. by accepting the deed the buyer is waiving whatever he might have gotten in the prior real estate contract 2. Buyers interest in the real estate contract disappears and merges with his interest in the deed 1. heating. Really more of a waiver than a merger. If a GR claims to convey property that he does not own and subsequently obtains that title. Merger – depends on INTENT i. Collateral obligation a. Put EXPRESSED LANGUAGE in original real estate contract or in a new contract the same day of the closing e. real estate contract says to fix roof i. Jr does not have land o When Sr dies:  Doctrine of estoppel by deed  property goes automatically from Jr to A right after he gets deed from Sr  17. EXCEPTION: 1. Estoppel by deed – aka: after acquired title doctrine i. plumbing. Deed is the final act and is deemed to be the expressed agreement of the parties 3.e. Equitable doctrine enforced in equity ii. electrical. it is buyer’s fault) ii. Ex. If intended obligation (not the sort of promise that would be included in the merger doctrine) is not intended to be extinguished by the closing (deed) b. Say in real estate contract – the roof issue is a collateral agreement that survives the closing ii. Ex. Do so by EXPRESSED writing c. basement habitable d. f. Covenants are good example because usually not included but parties still obligated i. If the deed was not what the buyer wants it to be then he should reject the closing 5. GR cannot deny title to the GE he has already given it to  Hypo: L conveyed by warranty deed to H before L received patent from the government. look at house and something wrong with the roof. Law assumes that is there is something in the contract that is not in the deed then it was negotiated away 4.Landlord/Tenant a. build bridge. AC. improvements.

If original agreement oral  modifications can be oral iii. aka: estate for years 1. Created expressly by the parties in writing or orally 2. If a rescission. Tenancy at sufferance – holdover TN 48 . violate the SOF?  Depends on the interpretation of “making thereof” o Narrow reading – that violates SOF because longer than one year o Broad reading – does not violate because occupancy begins on July 1 Hypo: lease in writing for one year. when TN wants to leave. If original agreement in writing  modifications must be in writing 1. Periodic tenancy 1. year to year. 2007 for one year term beginning on July 1 and ending on June 30 the next year.i. If notice is not given. “making thereof” – what does this mean? a. Almost seems to change TAW to something more than what CL intends it to be iv. Unless lease will not be performed one year from the making thereof 1. Classification by Duration i. Tons of litigation as to whether or not proper notice given iii. only the time will terminate it 1. Not an expressed relationship. Terminates at will of either party (modern statutes require some notice) a. Created expressly by the parties in writing or orally 2. Will continue for successive periods unless one of the parties gives notice of termination a. LL tells him not to leave and negotiates orally to allow TN to pay $800 instead of $1000/ mo. month to month 4. LL says orally. Minority uses date taking occupancy ii. the law tells the parties they are in this relationship 2. Terminates automatically at the end of the term o Death of LL or TN will not terminate. Tenancy at will 1. Tenancy for a fixed term. Non-freehold estates in land 3. Majority uses the strict/narrow interpretation of SOF running from time of making of the agreement (date signing lease) as opposed to date taking occupancy b. Lease for identical periods 3. then not a modification but a termination – does not need to be in writing so long as still some unexpired lease term less than a year  L orally agreed to rent T a house on May 18. Certainty of the duration 4. No period of duration 3.  Courts will not accept modification because oral TN says I need to move because having trouble paying rent. Do not need notice to terminate ii. in jurisdiction that requires writing. that he will let him out  Since rescission then allowed orally POLICY: courts allow oral rescission and not oral modification because modification continues an ongoing contractual relationship    b. 3 months left. it automatically extends to another period a. Ex.

Ex. the law tells the parties they are in this relationship 2. once the date runs then the TN becomes a holdover b. Hypo: TN entered into contract with LL. Ex.200. Hypo: if FMV went down i. TN originally had estate for 3 years and the 3 year date comes up. TN originally has a periodic tenancy. LL used self-help (throwing stuff out and changing the locks) a. Some jurisdiction have summary judgment proceedings that LL can use when dealing with a holdover TN 1. the FMV is $1. if TN stays then has holdover d. LL in better position to know what is going on with his property. In modern residential leases. TN becomes a holdover i. English Rule a. Damages = (FMV Rent – Rent in lease) + special damages a. Damages formula: 1. TN to pay $1. gets that money until occupancy can start b. Then damages will primarily be special damages d. Documentation saying TN owns b. Not an expressed relationship. Had a TN that was in lawful possession at one point and has decided to stay beyond the written or oral period a. LL required to give both legal and actual physical possession i. no notice. LL duty to deliver right of possession – only imply either rule when not expressed i. TN would get $200/mo + any special damages. easier for LL to evict through summary judgment proceedings iv. ii. TN originally at TAW. American Rule a. the English rule is more appropriate because by the time one gets to court the lease term is up v. LL only required to give legal right to possession i. Covenant of Quiet Enjoyment i. 2 views 1. LL IMPLIED COVENANT 49 . no notice and TN stays. In holdover situation  sue the LL c. LL could bring action to evict or elect to extend for another term c. Ex. LL IMPLIED COVENANT ii. Need document and physical taking b. Courts discouraged vi. Justification: TN would not have contracted if he thought someone would interrupt possession. TN did not get actual possession i. Ex. TN originally has periodic tenancy. Before summary judgment proceeding. In holdover situation  sue the holdover 2.1.000/mo in rent. LL asks TN to leave. Used when negotiated English rule and LL does not deliver actual physical possession 2. TN is not a holdover c. LL notices TN to leave. Lease – uses both contract and property theories of law iii.

it happens after TN has already obtained possession a. then must pay rent again o = the MAJORITY. Absent a reservation by the LL the TN has the sole and exclusive right to undisturbed possession during the term of the lease and the LL has no right to take possession of a part of the demised premises to the exclusion of the TN 1. LL did not have authority to do so in the contract o If LL does actually interfere with part of leased property. LL breaches repairs obligation. Actual total – do not pay rent until can possess a. Lease viewed as a conveyance of estate in land and TN has the right to undisturbed possession of the leased area for the lease term and the LL cannot interfere 2. 2 theories: 1. If LL breaches a covenant that does not meant the TN is relieved from his obligations ii. If TN denied actual legal possession  no responsibility to pay rent because dependent i. Damages = (FMV for remainder of lease – Rent for rest of lease) + any special damages b. ONLY EXCEPTION: i. because do not want to encourage the LL to change the contract 50 . TN still in possession i.ii. If LL breaches. then TN relieved of obligations  Page 40 Note 2 o LL actually bulldozed part of leased premises and moved the wall in. a few states apportion 2. Can be breached with total or partial possession lost iii. TN does not have to pay rent if denied actual physical possession 1. When breached. Conveyance theory a. TN does not have to pay rent 2. TN can sue (LL will have to pay damages) but must still pay rent c. Actual partial – rent abated/suspended. then under all theories the TN does not have to pay rent)  Partial actual eviction  Smith v. Hypo: LL warrants in lease to make repairs to sewer system. McEnany – actual partial eviction the TN does not have to pay any rent at all until the encroachment is removed. If LL breaches his covenants the TN is relieved from continuing his obligations b. must the TN continue to pay rent? (if LL took all possession. Covenants independent i. Contract theory a. TN covenants to pay 10K in rent. Covenants dependent i. If TN denied actual or legal possession i. Based on idea that TN received an estate in land that carries both the benefits and burdens of that responsibility b.

$1. Because of problems with constructive eviction. LL still responsible for the common areas because he maintains control of them iii. EXCEPTIONS: 1. LL has better knowledge of the property and its defects 3. IWH. o MINORITY – will apportion. No time to inspect. but if the encroachment is substantial enough then they do not apportion Hypo: TN leasing industrial park. Implied Warranty of Habitability – ONLY APPLIES TO RESIDENTIAL LEASES i. Modern TNs are no longer handymen. 100 sq ft. rent suspended until the blockage removed o Minority – apportionment. EXCEPTION: (to caveat emptor being used in commercial leases) 1. If cannot meet the heavy burden of constructive eviction. CAN WAIVE by TN agreeing to make these repairs 2. Short-term leased of furnished dwelling a. Davidow a. Ways to AVOID i. Also idea of necessity for TN to inspect d. in form of implied warranty of suitability applies to commercial leases b. In rare case. LL warrants NOTHING. Lease of buildings under construction a. then use IWH ii. Caveat emptor – TN takes property “as is” – must expressly negotiate everything because nothing included! a. no repairs i. so TN still needs to pay $750  When apportion. LL has better bargaining power 2. LL fraudulently conceals the problem or condition a. if furnished then not really using it for the land only using for the structure 2. have to look into subjective value of part of premises taken away e. Expressly state who should be making repairs in the lease contract 1. courts have moved more toward IWH 1. Policies – same as in IWH c. Policies for moving from caveat emptor to IWH (in residential leases) 1. Comes from theory that lease is a conveyance of land which the TN gets both the benefits and burdens of that land b.000/mo. When dealing with a commercial lease  MUST USE caveat emptor because IWH does not apply 1. lack the ability to repair or inspect 4. Always warrant and make sure that LL lack of repair is connected to relieving TN’s obligation to pay rent iv. LL blocks ¼ of it o Majority – TN does not have to pay anything. Could not inspect if still building 3. Assumed LE was a handyman that could fix anything c. Moving more toward consumer protection 5. Private Attorney General Theory 51 . Even if did inspect the LL is hiding it so will not see problem 4.

Damages for IWH 1. Health and safety of TN threatened 2. TN can show notice met by LL should have known i. Ways to prove: i. Remedies for IWH 1. because money tucked away and will be his if he wins 3. TN can offset rent by $200 2. Special damages i. because do not need to come up with all that money instantly iii. If after TN had possession. IWH elements – NOT WAIVABLE 1. Risks: TN doing lousy repair. Because society does not want people living in terrible conditions. repair costing more than what the LL would pay for it vii. Sometimes statutory remedy – TN can repair and then deduct from rent a. if rent a defective apartment (dangerous 52 . $$ = (Contract rent – the fair rental value of the premises in the unrepaired condition) i. Protects LL in case of judgment for LL. 1st number: found on lease 2.a. Rent reduction b. 2nd number: found through expert 1. TN might be able to show notice through fines or code violations by the city or inspectors b. LL MUST have actual notice from TN (the TN now has possession so no reason for the LL to should have known) 3.  NARROW damages formula 1. Depends on facts and circumstances of the case 2. Proves TN actually had the money and not just bringing case as stall tactic ii. If at outset. $500 rent in lease. Premises not in a habitable condition a. If problem already existed before the TN got possession then TN can prove second element MUCH EASIER ii. improving things that do not need repair. Provides incentive for LL to make repairs in order to get rent payments b. TN can continuing paying rent and then make an IWH case and get some money back 2. When withholding rent  most jurisdictions make the TN pay full rent into escrow i. 3 damages formulas a. Need extra eyes and ears at the locations because the code inspectors cannot do it all by themselves v. LL must have notice of the problem a. Substantial violations of the housing code ii. expert said apartment worth $300 in current bad condition a. Protects TN in case of judgment for LL. TN can withhold rent a. Ex. TN can always get: a. LL must have a reasonable time after notice to repair the problem vi.

Can consider contract as evidence of value of premises as warrented b. changing blinds – will not work b. ***Percentage diminution*** i. Case law should help to alleviate the difference in judges iii. Elements: (burden on the TN to make a case) 1. If constructively evicted then TN is in the same scenario as if actually evicted 1. rat – 10%.  expert testifies that $500 if up to code. Get value from expert ii. TN has another opportunity to make case for constructive eviction. 2nd number: expert needs to decipher from dilapidated conditions of premises 2. Lease terminates and TN does not have an obligation to pay rent iii. $$ = (Fair rental value of premises as warranted – fair rental value in unrepaired condition) i. No heat in the Illinois winter is a substantial breach 3. $300 in current bad condition. Ex. Reasonable time is KEY b. 1st number: what the property is worth at minimum habitable. case-by-case analysis f. the TN has a new opportunity to bring a constructive eviction case 53 . LL only allowed to lease premises if they are up to housing code (not always the case) a.  established the broad theory b. LL breached an expressed particular duty or covenant in the lease a. LL breaches again.conditions) then still want TN to get damages even if FMV is only $300 and TN already paying $300 a. $300 – $200 (set off difference) = $100  what TN has to pay for rent c. in the lease. no A/C in FL 40% ii. TN stays  TN waived that breach i. Facts and circumstances different. Ex. Just because it is the same violation. because reduces costs needed for experts but the risk is the discretion allotted to the judges 1. Check circumstances to see if breach enough i. Must find an express duty of the LL. Constructive eviction i. ii. rent for TN is $300 a. Not an easy burden to prove ii. does not mean ANY FUTURE VIOLATION IS WAIVED ii. Reduction in rent is based on percentage reduction for the defect(s) 1. Minor breach. Automotible Supply Co v. housing code conditions i. TN actually has to vacate the premises within a reasonable time a. Each time a violation happens. If LL breaches one month and TN stays  TN waived that breach c. that has been breached 2. Breach must be substantial (grave and permanent) a. Scene-In Action Corp. Ex. Easier than the above two. When acts by the LL amount to actual eviction 1.  BROAD damages formula 1.

Assignments and Sublease i. even if for one day) a. LL is NOT liable for acts of 3rd party strangers 1. When conditions change (ex. Between LL and AE (once A obtains right to possession) i. If TN takes longer than the court would expect to vacate the premises.d. When conditions change (ex. TN gave notice to LL (some courts only have 3 elements. in writing or oral (if less than a year. TN has possessory interest b. LL had right to control the problem i. both parties have an interest in the same parcel of land 1. Property burdened by obligation to pay rent. conversion to condos) NEED to notice both the subleasee and original TN b. Ex. Ways to determine whether assignee or subTN: 1. question of whether 3rd party is subject to promises even though not in privity? ii. sublease iii. others have this notice element) iv. v. between TN and Subleasee 2. REGARDLESS OF WHETHER TENANT ASSIGNS OR SUBLEASES  STILL LIABLE UNDER SURETY TO GUARANTEE PERFORMANCE iv. Between LL and original TN until TN no longer has right to possess i. Blackett v. conversion to condos) ONLY need to notice the assignee 3. then TN must introduce evidence of why it would take so long or TN will lose this factor i. Assignment: when TN transfers right to possession for duration of term left on lease (TN no longer has the right to come back in) a. LL knew or should have known when entered lease with offending TN that new TN could offend prior TNs a. Privity: (USE BOTH THEORIES IF NECESSARY) 1. LL has ownership 2. Ex. EXCEPTION: (when 2 part test met) a. if oral but too long then SOF defense) b. Deemed to have received entire estate as original TN and is bound by the covenants of the original TN b. Of contract a. Look at language (not dispositive) 2. between TN and AE c. lease term 1/1/09 – 12/31/09. in order for that obligation to transfer the successor to the original TN 54 . Ex. 3rd party via and assignment or sublease. Conveyance of an estate in land (non-freehold) – Privity of Estate a. LL generally NOT RESPONSIBLE for actions of other TNs 1. Sublease: when TN transfers anything less than entire remaining duration on the lease (TN has the right to come back in. TN has the burden. Olanoff g. LL liable for persons of paramount title and his own agents but NOT STRANGERS v. Automobile Supply Co. TN going home for the summer and allows someone to come in from June – Aug but TN gets it back i. between LL and original TN. Scene-In-Action 4.

contract includes a “no assignments or subleases clause” i. No base rent. surety to guarantee performance  LL can only get one satisfaction but LL can sue either Same as above but sublease for 6 months o LL must sue the original TN because no privity of contract or estate with subleasee o TN can sue subleasee because in privity of contract with each other To avoid all the LL can add provision that if not paid the lease terminates  then everyone out of luck because LL terminates head lease LL better of with AE because can sue directly. TN MAY assign or sublease a. For burden to run to successor. the successor must have received the ENTIRE dimension – does not happen with subleasee  Hypo: TN assigns remainder of lease term to 3rd party because no time left = assignment. Barnett a. AE is in privity of estate at the time of possession up until the right of possession is changed 1. NO PRIVITY BETWEEN LL AND SUBLEASEE EVER a. Chicken System of Am. Nassau Hotel v.must obtain same estate in land in the time dimension (same as covenants) ii. Courts generally HATE to imply restrictions b. Originally is a “no assignments or subleases without LL’s prior written consent clause” then LL could withhold consent to sublease/assign for a good reason and for an arbitrary reason but not for a bad reason b. Ex. Traditionally courts promote free alienability for highest and best use 2. First Am. TN assigns. When lease silent regarding TNs ability to assign or sublease 1. TN expertise needed for LL to get rent 1. LL not getting rent anymore because AE not paying rent o LL does not have privity of contract o LL does have privity of estate  allows LL to sue AE and original TN because he is in privity of contract. Ex. EXCEPTION: i. National Bank of Nashville v. with subleasee then has to sue TN to get indirect compensation    v. not because clause does not exist in contract. SILENT  regarding the way a LL can terminate. Imply a restriction on assignments and subleases when LL specifies negotiations with a specific TN because of TN’s talents. Modern trend: LL can withhold consent if it is commercially reasonable reason 55 . came from profits which was direct reflection of TNs talents 3. abilities and if rent collected via TN’s profits. LL entered into k with original TN. Silent consent clause a. only rent came from how well the TN performed. 3. General Rule: absent a restrictive clause.

Ex. the lease extends for another year i. In the evidence of showing contrary intent. Retaliatory non-renewal i. Multi-year  LL gets one year ii. LL can force TN into another lease term: i. Month-to-month  LL gets one month b. Geo-Con a. Abandonment – TN leaves too soon 4. Based on INTENT of the parties ii. Holdover – TN stays too long a. Consent and force TN to pay for another full year 1. Ex. Clairton Corp v. not the intent because negotiations on new lease in the making 3. tenancy for a fixed term – requires no notice b. Tenancy at sufferance i. Ex. On-time – when the lease is supposed to. Arbitrary reason d. notice if needed a. Ex. Ways to terminate 1. Fixed term and stays ii. LL options when TN stays too long: i. Ex. If we have all these housing codes then TNs cannot be afraid to call because they will be evicted b. Termination of LL/TN relationship i. LL can choose not to renew for: a. LL is stuck with TN for duration of the lease term but does not have to renew 1. Ex. In this case. Noticed to leave a stays b. if new TN cannot reach same percentage for percentage clause 2. Ex. If building set for retail sales and new TN wants to put in a health clinic 5. NOT FOR retaliatory reason i. if new TN cannot pay rent (credit report) 3. Once Retaliatory Eviction dissipates a. Evict ii. One year  LL gets 6 months iii. tenancy at will under CL c. periodic tenancy upon proper notice 2.1. Good reason b. TN right not to be evicted for a retaliatory reason remains until retaliatory reason dissipates because TN is not entitled to stay in the leased unit forever 56 . Ex. h. No reason c. financial instability or irresponsibility of proposed transferee 4. unsuitability of intended use by transferee a.

Illegal activity clauses necessary i. Why would LL mitigate if he is not in this type of jurisdiction? a. May want to do this if FMV rent increased and can charge more 57 . what if not signatory. LL gets difference between old and new rent ii. Basically letting TN off the hook 1. Too loosey goosey??  This case was easy because cut and dry. what is alleged illegal activity (LL only suspects TN doing drugs). Protect other TNs ii. the TNs will be in a better marketing position c. Do nothing and continue collecting rent b. If commercial retail then looks “dark” and could ruin the entire mall i. ONCE that point  the LL can then invoke any legitimate reason. Abandonment and Surrender i. Lower insurance iii. Good faith to mitigate 1. LL has 3 options under conveyance theory jurisdiction a. Treat lease as terminated – “accept the surrender” i. Abandonment 1. LL must wait 6 months after incident to evict TN 5. Might want to put someone in there to prevent vandalism or deterioration of the property c. Illegal activities a. Retake possession for account of TN i. LL wants new TN in because TN abandoned since going bankrupt b. but when more of a gray area need to be very careful. Gray area when LL only has suspicion of legal activity c. healthy place for people to live  Hypo: not conceded that there is illegal activity. Establish complex as safe. When there is clearly an illegal activity and a clear clause permitting eviction for illegal activities on the premises  open and shut case b. May want to do this if long waiting list and can put someone in premises same day 2. or no reason at all or arbitrary reason ii.i. keep in mind the continuum of guilt i. Presumption of 6 months dissipation period 1. LL could evict upon suspected activity. young daughter alleged to be doing illegal activity on the premises but not in the apartment? o Public policy  only want people kicked out of apartment when…  Some ordinances are fairly broad  Ex. BUT LL cannot chose to evict during the tenancy of a lease contract except because of those reasons stipulated in the lease iii. If time for other TNs to renew.

Waste – arises anytime someone is possessing and someone else has an interest i. Slight change to law  ameliorating waste 1. only have expectancy until then b. Changes actually enhance (must be proven) the value of the remainderman’s property iv. If LL does have an acceleration clause and exercises that option then LL cannot also demand possession of the premises. Miscellaneous a. Changes because of surrounding circumstances b. LL has 2 options under contract theory jurisdiction a. Acceleration clause – LL can make all rent due in the future due now. Can good faith mitigate b. If already a couple months default then TN will have to pay rent for all time left on lease a. Treat lease as terminated “accept to surrender” ii. 130 a. TN has the right to possession for the entire duration of the lease term i. occurs when there is a default 1. Public policy so that LL does not have to wait to collect until the end of the lease term when the TN may only have two cents left 2.595 a. Even if the material change is arguably nicer. Reversion: name for any future interest for GR that is not the possibility of reverter or right of re-entry g. Mitigation iii. To get around ejectment for waste. FL is part contract theory and part conveyance theory 1. Has a statute: § 83. Helps TN make up loss because TN had to pay a lump sum earlier to LL 3. Conveyance: transfer of land during one’s life f.2. TN or LL could now put someone in there and get rent to substitute what he already had to pay 1. Do nothing and make TN pay damages iii. Alienable: capacity for a piece of property or a property right to be sold or otherwise transferred from one party to another c. Divisible: divvied up in a will d. possessor still subject to waste iii. If LL says in clause that he gets to keep money from new TN after acceleration clause collection then viewed as a penalty clause which the courts do not like 18. If TN abandoned: i. Note pg. Can the person who is not in possession be compensated for the damages the person in possession made to the property? ii. Any releasing of premises after an acceleration is for the benefit of the TN because the TN has paid for the right of possession for the duration of the rent ii. Inheritance: by death intestate the state will give via inheritance e. “Accept the surrender” ii. Heirs do not have a property interest until death. Life TN is not liable for changes when: a. draft that into the document 58 .

FL Constitution – Art X § 11. B does not have to survive A in order to get property b. specific parcel If LL wants to evict TN in middle of lease term without justification then TN can sue for damages i. n. If O only wanted B to get property after A.h. FMV – stipulated lease term + special damages 59 . free from dispute. FL – has custom. i. uninterrupted. Cannot have benefit and burden on the same person 1. without interruption. If B dies before A. then to B and his heirs” a. k. Corbett v. j. use is ancient. been in use for such a lost period of time that the memory of man cannot run counter i. m. lakes) that they are held in trust by the State for the public and that private ownership of those important resources is allowed by subject to public’s right to use it i. FL – private property owner must have expressly presented some sort of intention to appropriate his lands for public use Custom: time immemorial. l. Need evidence of intent to dedicate ii. Hypo: “O to A for life. then EXPRESSLY require SURVIVORSHIP Rule of law. Does not work here because these lands held by federal government and then went into private use ii. Unless survivorship to the time of possession is expressly required by the instrument. not a rule of construction  which means that when it applies it will apply in spite of the GR’s intent i. Ruben Public trust doctrine: some resources (beaches. includes public trust doctrine that permits public trust for area below high water mark Implied dedication: private property is deemed given over to the public because private owners intended to do it i. B’s heirs still have a remainder. 1. it is NOT a condition 1. Rule of construction is meant to further the GR intent In easements: i. “life TN is without impeachment for waste" Rule for construction of survivorship i.

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