Define: Present Possessory Estates: Fee Simple Absolute

Absolute Ownership

Freely Alienable

Potentially infinite duration

Does not terminate unless the owner dies without heirs.

Define: Present Possessory Estates: Defeasible Fees: Fee Simple Determinable

A present fee simple estate that is limited by specific durational language

(e.g., so long as, while, during, until)

Terminates automatically upon the happening of the stated condition, and full ownership is returned to the grantor. 

Freely alienable, devisable, and descendible, but it is ALWAYS subject to the stated condition

Define: Present Possessory Estates: Defeasible Fees: Fee Simple Determinable: Possibility of reverter

Upon the occurrence of the stated condition, the estate automatically reverts back to the grantor.

The grantor's retained future interest is called a possibility of reverter

A possibility of reverter is freely alienable by the grantor both during his life and upon his death.

Define: Present Possessory Estates: Defeasible Fees: Fee Simple Subject to a Condition Subsequent

Present fee simple that is limited in duration by specific conditional language (e.g.,"provided that" "on condition that" "but if")

Upon occurrence of the stated condition, the present fee simple only terminates if the grantor affirmatively demonstrates the intent to terminate. No automatic termination

Grantor must explicitly retain the right to terminate  

Define: Present Possessory Estates: Defeasible Fees: Fee Simple Subject to an Executory Interest

Present fee simple estate that is limited in duration by either conditional language or durational language, such that it will terminate upon the occurrence of the specified condition, and title will pass to a third party.

Automatic termination

Define: Present Possessory Estates: Fee Tail

Freehold estate that limits the estate to the grantor's lineal blood descendants by specific words of limitation

(e.g., heirs of the body)

Define: Present Possessory Estates: Life Estate

a present possessory estate limited in duration by life.

upon the end of the measuring life, title reverts to the grantor or specified remainderman (this future interest is known as a reversion)

What is a life estate is measured by the life of a third party?

Present Possessory Estates: Transferability 

"life estate pur autre vie"

Does a life tenant have to insure the land? pay mortgage? taxes? damage?

NO obligation to insure for the benefit of the remainderman and is not responsible for damage by third-party tortfeasors.

If property can produce income, life tenants have the obligation to pay all ordinary taxes on the land and interest on the mortgage

If the property is not producing income, the life tenant is responsible for taxes and mortgage interest to the extent of the reasonable rental value of the land. 

What are the 3 types of waste?

Affirmative: overt conduct causes a decrease in value of the property

Permissive: tenant permits the premises to deteriorate through neglect

Ameliorative: change in use of the property increases the value of the property

Define: Concurrent Estates: Tenancy in Common

2 or more grantees, equal right to possess or use the whole property, unity of possession is required, no right of survivorship.

Define: Concurrent Estates: Joint Tenancy

Two or more people own property with right of survivorship

Define: Concurrent Estates: Joint Tenancy: 4 unities

PITT

5th unity?

Possession

Interest

Time

Title

Tenancy by the entirety = joint tenancy plus 5th unity of person -- married people only  

Define: Concurrent Estates: Rights of co-tenants for reimbursement

Natural Resources: co-tenant is entitled to land's natural resources in portion to her share

3rd party rents: co-tenant must account to others for rents received from 3rd parties 

Operating expenses: co-tenant can collect contribution from other co-tenants for paying more than her fair share

Repairs and Improvements: no right to reimbursement

Fiduciary Obligations: no duties owed to each other

Define: Future Interests: Reversion

The future interest held by the grantor who grants a life estate or estate for years but does not convey the remaining future interest to a third party.

Subject to RAP

Define: Future Interests: Possibility of Reverter

Define: Future Interests: Right of Reentry

A right of re-entry is a future interest held by the grantor after a fee simple on condition subsequent is granted

Define: Future Interests: Remainder

Future interest created in grantee that is capable of becoming possessory upon the expiration of a prior possessory estate of known fixed duration.

Can be either vested or contingent.

Remainder NEVER follows a fee

Define: Future Interests: Remainder: Vested

A conveys Blackacre “to B for life, and then to C and his heirs.” 

Not subject to any conditions precedent and is created in an ascertainable grantee.

Here, the grantee, C, is ascertainable.

Define: Future Interests: Remainder: Vested subject to open (class gifts)

A conveys a present gift of a remainder interest “to my children.” 

a class gift consists of a group of unspecified persons whose number and identity and share of the interest is determined in the future

Here, A conveys a class gift to an unspecified group because the recipients (i.e., those who will qualify as A’s children upon A’s death) are not known until A dies.

Define: Future Interests: Remainder: Vested subject to complete divestment

“to B for life, and then to C; but if C has no children, then to D’s children.” 

A vested remainder subject to complete indicates that the occurrence of a condition subsequent will completely divest the remainder interest.

C has a vested remainder interest, but if he is not survived by his children at the time of B’s death, then C’s interest will be divested.

Define: Future Interests: Remainder: Contingent Remainder

A conveys “to B for life, remainder to C’s heirs.” 

A remainder is contingent if it is created in a grantee that is unascertainable, or if it is subject to an express condition precedent to a grantee's taking. Usually in 1 of 2 circumstances:

1. unknown beneficiary so property cannot vest

2. property cannot vest because the known beneficiary is subject to a condition precedent that has not yet occurred.

If C is alive at the conveyance, then C’s heirs are not yet ascertainable, and the remainder is contingent.

Define: Future Interests: Remainder: Contingent Remainder: Shelley's case

A conveys “to B for life, remainder to B’s heirs.” 

Prevented contingent remainders in the grantee's heirs by defeating the grantor's intent and changing the interest that the grantor purported to give to the grantee and his heirs to a vested remainder.

If the rule in Shelley’s Case applies, then after the merger, B will receive the property in fee simple absolute. If the rule in Shelley’s Case has been abolished, then B has a life estate, and B’s heirs have a contingent remainder in the subject property.

Define: Future Interests: Remainder: Contingent Remainder: Doctrine of Worthier Title

Similar to Shelley's Rule, except it prevents remainders in the grantor's heirs, and it still applies in some states,

Presumption is in a reversion to the grantor, rebuttable by a showing of contrary intent.

Define: Future Interests: Executory Interests

Future interest in a third party that is not a remainder and cuts the prior estate short upon the occurrence of a specified condition

Freely transferable, subject to RAP

Define: Future Interests: Executory Interests

2 types

Shifting: divests the interest of the grantee by cutting short a prior estate created in the same conveyance.

Springing: diverts the interest of the grantor of fills a gap in possession in which the estate reverts to the grantor.

 Define: Future Interests: Executory Interests

Shifting or Springing?

Example: A conveys “to B and his heirs, but if C returns from Paris, then to C.” 

 Shifting

Shifting: This conveyance creates a fee simple subject to an executory limitation in B and a shifting executory interest in C

 Define: Future Interests: Executory Interests

Shifting or Springing?

 A conveys “to B for life, and one year after B’s death to C and his heirs.” 

Springing

This conveyance creates a life estate in B, a one-year reversion in A (in fee simple subject to an executory limitation), and a springing executory interest in C.

  Define: Future Interests: Rule Against Perpetuities

What interests are NOT subject to RAP

Present Interests

Vested Interests (except for class gifts)

Any interest retained in the grantor (reversions, possibility of reverter, right of entry)

What are the four types of landlord-tenant estates?

Tenancy for Years

Tenancy at Will

Periodic Tenancy

Tenancy at sufferance

What is a tenancy for years?

An estate measured by a fixed and ascertainable amount of time.

Creation: SoF applies to tenancy for years that is longer than one year 

Termination: Automatically upon the expiration of the term; no notice required

What is a periodic tenancy?

Repetitive, ongoing estate measured by a set period of time (e.g., month-to-month lease) but with no predetermined termination date 

Term: automatically renews at the end of each period until one party gives a valid termination notice. SoF does not apply.

Creation: express agreement, implication, or operation of law

Termination: notice is required, due to automatica renewal.

What is a tenancy at will?

Term: A tenancy at will is a leasehold estate that does not have a specific term and continues until terminated by either the landlord or the tenant.

Creation: express agreement and implication.

What is a tenancy at sufferance?

Holdover Tenant -- the period of time after the expiration of a lease during which the tenant remains on the premises.

Created by the actions of the tenant alone.

What are the three types of waste?

Affirmative: voluntary waste

Permissive: negligence - Tenant has a duty to handle wear and tear.

Ameliorative: improvements

Landlord/Tenant: What is the difference between assignment v. sublease?

Assignment = complete transfer of tenant's remaining lease term, anything less = sublease

Assignee tenants have privity of estate with the landlord

Sublessee is not in privity with the landlord, not liable for rent or other leased covenants, but they are liable to the lessee.

Does the original tenant's privity of estate terminate upon a successful assignment by the tenant to an assignee?

YES, but not on sublease.

However, absent an agreement by the landlord releasing the original tenant from liability (i.e., a novation), the original tenant remains liable to the landlord for the entire duration of the lease.

What is attornment?

The tenant's knowledge of a new landlord.

Payment of rent to a new landlord = attornment.

What are the statute of frauds requirements in a land sale contract?

i. be in writing

ii. be signed by the party to be charged; and

iii. contact all of the essential terms (i.e., parties, property description, terms of price and payment).

What is a deed and what are the requirements?

Document that conveys a real property interest

Must be in writing, signed by the grantor, contain a description of the property, and identify the grantee; in addition the deed must contain words of transfer.

What is marketable title?

When is it given?

What about installment land K?

Title free from defects, part of a land sale contract, regardless of type of deed is created (absent contrary language).

Seller does not need to deliver until the closing

Not until delivery occurs

What are defects in title rendering title unmarketable?

i. Title acquired by adverse possession that has not been quieted (i.e., supported by judicial decree)

ii. Future interests wherein the holders of such interests have not agreed to the transfer;

iii. Private encumbrance (e.g., mortgage, covenant, option, or easement);

iv. Violation of a zoning ordinance; or

v. Significant physical defect (an encroachment on the land that is uncurable).

What are the remedies for unmarketable title?

1. A buyer may rescind and recover out-of-pocket costs and earnest money payments, 
2. Sue for breach
3. Bring action for specific performance with an abatement of the purchase price

Cannot obtain remedy until the date of closing.

What is the implied warranty of fitness or suitability?

(New Homes)

Replaces caveat emptor ("let the buyer beware).

Warranty of quality, workmanlike construction, performance, habitability, implied in a land sales contract for the purchase of a newly constructed residence.

Can be brought (usually) between 1-10 years

What damages are available for breach?

Damages: both buyer and seller can recover expectation damages based on the difference between the K price and the market value on the date of performance\

What is the doctrine of equitable conversion?

Under the doctrine, although the seller retains legal title to real property during the pendency of the land sales contract, equitable title passes to the buyer upon entering the K.

Seller effectively holds the property in trust for the buyer, and he has a duty to keep up the property.

Who (mostly) bears the risk of loss between a buyer and seller during the time between the execution of the K and the closing date?

Buyer

What is the effect of the Buyer's or Seller's death prior to the performance date of the contract?

Whose interest is treated as personal property, and whose is treated as real property?

Seller: personal property

Buyer: real property

What are the elements for adverse possession?

CHEAPO

Possession must be

continuous,

actual,

open and notorious,

hostile, and

exclusive.

Can an adverse possessor tack on his predecessor's time in order to satisfy the statutory period?

Yes, as long as there is privity between successive possessors

If a true owner is afflicted with a disability (e.g., insanity, infancy, imprisonment) does the statute of limitations run at the inception of the adverse possession?

NO

If a grantor keeps a deed, and intent to transfer is not presumed, how can we establish intent?

Parole evidence is admissible to establish intent to make a present transfer of the property interest.

RE: Notice Statutes: Does a bona fide purchaser need to record in order to prevail over a prior interest in a notice jurisdiction?

NO, but he must record to prevail against a subsequent purchaser

Are grantees who acquire title by property by gift, or devise protected by the recording act against prior claims?

NO, even those who fail to record their claims to the same property.

What rule protects grantees whose grantor is protected by the recording act?

Shelter Rule

What is inquiry notice?

RE: Constructive Notice: What is a tract index?

All properties in a tract index system are listed by location on a separate page that includes all conveyances and encumbrances

RE: Constructive Notice: What is a grantor-grantee index?

Each yearly index is usually alphabetized by the last names of the grantors and grantees.

Verification of the chain of title

i) Under a race statute, C wins, even though C records after A. In this situation, A’s recording is outside C’s chain of title, so it does not constitute “winning the race” for the purposes of a race statute. Also, because B’s interest in Blackacre “wins” over A’s, and C relies on B’s title, C wins.

ii) Under a notice statute, C wins even though C had notice. The shelter doctrine shelters C by making B’s title marketable, because B was a good?faith purchaser. Therefore, B passes his title to C, and C takes B’s status as a good-faith purchaser.

iii) In a race-notice jurisdiction, C wins because the shelter doctrine applies.

What is a wild deed?

A deed without a chain of title

When an instrument is recorded and indexed in the recording office, it may not be recorded in such a way as to give notice to subsequent purchasers (i.e., the deed may not be in the "chain of title").

What is title insurance?

Does a recording act protect a subsequent taker for value from a property interest acquired by operation of law (adverse possession, prescriptive easement)?

NO, generally such ownership arises automatically upon the expiration of the statutory period.

What six covenants does the grantor of a general warranty deed guarantee holding title to?

Present Covenants:

1. Covenant of Seisin
2. Covenant of Right to Convey
3. Covenant Against Cncumbrances

Future Covenants:

1. Quiet Enjoyment
2. Warranty
3. Further Assurances 

What does the present covenant of seisin warrant?

That the grantor owns the land as it is described in the deed. 

What does the present covenant of right to convey guarantee?

That the grantor has the right to transfer title

What does the present covenant against encumbers guarantee?

That the deed contains no undisclosed emcumberances

What does the future covenant of warranty guarantee? 

That the grantor will defend against a third party's claim for title.

What does the future covenant for further assurances guarantee?

That the grantor will do whatever is necessary to perfect title should it turn out to be defective, though this is not recognized by all states.

What is the after-acquired title doctrine?

When a person who purports to transfer real property that he does not own subsequently becomes the owner of that property, the doctrine provides that title to the property automatically vests in the transferee.

Explain Special warranty deed

What is the difference between a quitclaim deed and a warranty deed?

Quitclaim deed provides no covenants of title.

Common Form: Tax Deed, which is used by government authorities when selling properties seized for nonpayment of taxes. 

What is ademption?

A devise of real property may fail (or be adeemed) because the testator no longer owns the property upon death (i.e., property was sold, destroyed, or given away before death).

Can only occur with a specific devise like real property, not general like money.

Under common law, how can a devise of real property fail (lapse)?

Anti-lapse statute

The devise will lapse if the beneficiary under a will dies before the testator and no alternate beneficiary is named. 

What is the common law exoneration of liens doctrine?

What are the requirements for a valid trust?

Settlor: creates the trust

Trustee: holds the legal title to the property

Beneficiary: holds equitable title

Intent

Valid Purpose

Res or property

Beneficiaries that are identifiable

What is the doctrine of cy pres?

charitable trust

Redirects the trust to a similar charity or purpose if the charitable trust can no longer serve the purpose for which it was created.

What are the forms of restraint on alienation? 

Disabling restraint

Forfeiture Restraint

Promissory Restraint

What are prohibited restraints?

AN absolute restraint on alienation or a fee simple is void

Any restraint based on race, ethnicity, or religion is not enforceable

What are permissible restraints?

Restraints limited in time and purpose may be valid

Right of first refusal: gives the holder of the right the opportunity to purchase the property interest if sold

Lien Theory v. Title Theory

Majority and minority

Majority LIEN: The Mortgagor (borrower) is treated as the owner of real property, and the mortgagee (lender) is treated as the holder of a lien on that interest

Minority TITLE: Mortgagee treated as the owner of real property, possesses the right to regain ownership of the real property upon satisfaction of the obligation. 

What is an installment land contract (i.e., contract for deed)?

Contract where the seller retains title until the buyer makes the final payment under an installment payment plan.

What is a due on sale clause?

This clause provides that, upon the transfer of mortgaged property, the lender has the option to demand immediate payment of the full amount of the outstanding obligation, including interest, unless the lender given its written permission for the transfer.

If the transferee buyer takes the title "subject to" an existing mortgage obligation, then is the transferee-buyer personally liable upon default?

NO

If a deed is silent or ambiguous as to the transferee buyer's liability is the transferee-buyer considered to have taken the land subject to the mortgage obligation?

YES

Are the promissory note, and the mortgage that serves as security for the note typically transferred together? 

YES

What is the effect of transferring the mortgage without the note?

Jurisdictions are split, the note is principal evidence of the debt, and many states treat a transfer of mortgage alone as void.

Some states treat the note as automatically transferring with the mortgage.

What is the effect of transferring the note without the mortgage?

There is no separate written assignment of mortgage necessary. Therefore this is ok. It is assumed that the mortgage always follows the note.

What is the intermediate title theory, re: pre-foreclosure rights

The mortgagor retains legal title until default, and, upon the mortgagor's default, it vests legal title in the mortgagee. 

How are junior and senior interests determined?

first in time, first in right

Describe a purchase-money mortgage exception?

Purchase Money Mortage and priority? 

Seller's purchase money mortgage and third parties?

Priority among third party purchasers?

Mortgage used to finance the purchase of the mortgaged property and executed at the same time as sale

Priority over all earlier non-purchase money mortgages and liens whether or not recorded

A seller's purchase money mortgage has priority over those of third parties

The prior of third-party purchase money mortgages is determined chronologically, subject to any other application exception.

What is a future advance mortgage?

Mortgage given by a borrower in exchange for the right to receive money from the lender in the future.

Known as a line of credit.

Explain after-acquired property?

Mortgagor may grant a mortgagee rights to property that the mortgagor 

Are the rights of a senior interest holder generally affected by a foreclosure sale?

NO

What is the effect on a junior interest holder of a mortgage that is being foreclosed on?

Notice requirement?

Equitable Marshaling of Assets?

Interests are generally destroyed.

Junior interest must be given notice of the foreclosure and made a party to the foreclosure action. 

When a senior mortgage is foreclosed and the mortgage covers multiple properties, the holder of a junior mortgage on some but not all of these properties can petition the court to apply

How are the proceeds from a foreclosure sale applied?

(1,2,3,remainder)

First: costs associated with the sale

Second: balance and interest of the mortgage obligation being foreclosed

Third: the mortgage obligation to owed to any junior interest holders in the other of priority of their interests

Remainder: paid to debtor-mortgagor

What defenses is a mortgage subject to? (re: enforceability, same as the underlying obligation secured by the mortgage)

MAD FIFI4

Material Alteration

Duress

Fraud in Factum

Incapacity

Illegality

Infancy

Insolvency 

Re: Option K for real property: does the option K remove the ability of a grantor to revoke the option?

Yes

Re: Option K for real property: Can the holder of an option make an offer to the grantor of the option that otherwise would constitute a counteroffer without losing the the right to exercise the option?

Yes

Re: Option K for real property: does the mailbox rule apply to these option ks?

No, the holder's decision to exercise the option must be received by the grantor of the option within any time period specified in the K

Re: Option K for real property: does RAP apply to an option or right of first refusal granted to a current leasehold tenant?

No

Are the right of first refusal and option Ks an encumbrance that prevents the seller of property from providing unmarketable title?

YES

Is physical transfer of a deed required?

No, as this is not conclusive evidence of the grantor's intent.

First, Owen sells Blackacre to Allen, but Allen does not record.

Second Owen then sells Blackacre to Barry, who has no notice of the earlier conveyance to Allen.

Next A records. T

Then, Barry records.

Barry sues Allen to quiet title in Blackacre.

What is the result?

Race Statute: The first in time to record prevails. Allen wins

Notice Statute: regardless of who records first, those in good faith purchase without notice prevail. Barry wins

Race-Notice Jx: Barry is unable to prove that he had both no notice and recorded first. Because Allen recorded first, Allen wins.

First Owen sells an easement in Blackacre to Allen, but Allen does not record.

Second, Own sells Blackacre in fee simple absolute to Barry, who knows of the earlier conveyance to Allen.

Next Barry records.

Then, Allen records.

Barry sues Allen to quiet title to Blackacre.

What is the result?

Race Statute: Barry wins, and the easement is extinguished because Barry recorded first.

Notice Statute: Allen wins because Barry had notice of Allen's rights at the time of the purchase.

Race-Notice Jx: Allen prevails and can enforce the easement against Barry because Barry is unable t show that he both recorded first, and purchased without notice of Allen's prior claim.

Describe: estoppel by deed (after-acquired title)

A grantor who conveys an interest to land by warranty deed before actually owning it is estopped from later denying the effectiveness of her deed.  

Consequently, when the grantor does acquire ownership of the land, the after-acquired title is transferred automatically to the prior grantee.

What are the six general warranty deed guarantees for the six covenants of title (past & present)?

Present Covenants:

Covenant of seisin: grantor owns land described in deed

Covenant of the right to convey: grantor has right to transfer

Covenant against encumbrances: deed contains no undisclosed encumbrances

Future Covenants:

Quiet Enjoyment: Grantee's possession will not be interfered with by 3rd party's claim for title

Warranty Guarantees: guarantees that the grantor will defend against third party claims

Warranty of Further Assurances: Grantor will do whatever is necessary to perfect title should it turn out to be defective 

Recovery of damages: What can a buyer recover for the breach of covenant against encumbrances?

The lesser of the difference in value between title with and without the defect, or the cost of removing the encumbramce

Recovery of damages: What can a buyer recover for the breach of covenants of quiet enjoyment or warrant?

Grantor must refuse to defend the title

Recovery = lesser of the purchase price or the cost of defending the defective title

Recovery of damages: What can a buyer recover for the breach of covenants of seisin?

Right to convey, or further assurances is the lesser of the purchase price or the cost of perfecting title.

What does a special warranty deed contain?

The same covenants of title but it only warrants against defects arising during the time the grantor has title.

What does a quitclaim deed promise?

What are common forms of quitclaim deed?

Unlike a warranty deed, a quitclaim deed promises no covenants of title. 

Tax Deed

Does a grantee in a quitclaim deed (or a grant deed or warranty deed) receive better, worse or the same title as the grantor?

No better title than what the grantor possessed. 

What type of devise is the ONLY kind that ademption may occur?

general or specific?

Specific 

By will, Alice devises her car to Barry, Blackacre to Carl, and the remainder of her property (the residuary estate) to Diane. Alice does not name any alternate beneficiaries.

If Carl dies before Alice and the devise does not qualify for protection under the anti-lapse statute, what happens to Alice's estate?

Blackacre becomes part of the residuary estate and passes to Diane, along with all of Alice's property other than the car which does to Barry.

If Carl is related to Alice such that the anti-lapse suit applies, then Blackacre passes to Carl's descendants

Under the common-law exoneration of liens doctrine, if a testator makes a specific devise of real property that is subject to an encumbrance (like a mortgage lien) then what is the devisee entitled to?

What about in states without the doctrine?

To have the land "exonerated" by payment of the encumbrance from the remaining assets in the testator's estate

In states where this doctrine is abolished: the property passes subject to the encumbrance unless the will specifically require payment of the encumbrance.

What happens when a devise is ABATED or reduced?

What is the order of abatement?

i. Property not disposed of by will

ii. Residuary devises;

iii. General devises; and

iv. Specific devises

What is a specific devise?

A devise of property that an be distinguished with reasonable accuracy from other property

" I give my diamond ring to Alice"

What is a general devise?

Devise of personal property that testator intends to be satisfied from the general assets of his estate

"I give $100 to Alice"

What is a demonstrative devise?

General devise to be paid from a particular source

"I give $100 from my first federal bank account to Alice"

Pro Rata Abatement

In her will, a testator made a general devise of $10,000 to her daughter and a general devise of $20,000 to her son. At the time of her death, the testator's estate consisted of $21,000 in case.

What is the execution?

The devises exceed the estate by $9000 ([$10,000 + $20,000] - $21,000).

The daughter's devise is reduced by $3000 ($9000 x [$10,000/$30,000]) to $7000 ($10,000-$3000)

The son's devise is reduced by $6000 ($9000 x [$20,000/$30,000]) to $14,000 ($20,000-$6000)

What is a forfeiture restraint?

Effects the loss of property if the interest owner attempts to transfer his interest

Can be valid on Life estate

What is a promissory restraint?

Promise by the property interest holder not to transfer the property interest

Enforceable by an injunction against the transferor/promisor to prevent the transfer or by a suit seeking damages from the transferor/promisor for having violated the promise

Can be valid on life estate

What are the easements?

Easements appurtenant: tied to the land, benefits of an easement must correspond directly to the use and enjoyment of the possessor of the dominant estate

Easement in gross: personal to the holder, granted to a particular person (oppose to the land)

Affirmative Easements: most easements are affirmative, giving the holder the right to make use of another's property 

Negative Easements: Restrictive covenant, prevents another from doing something, or using the land in a particular way in order to benefit the holder of the easement.

Express Easements: Creation: Grant, Reservation?

Grant: arises when it is affirmatively created by the parties in a writing that is in compliance with the Statute of Frauds

Reservation: Grantor conveys land but reserves an easement right in that land for his own use and benefit (not a third party)

Easements by Necessity

the landlocked property, virtually useless without the easement.

Both dominant and serviant interests would have had to be under common ownership in the past.

unlike easement by implication: Need not be a showing of prior use

Easement by implication

If an easement was previously used on the servient estate by an earlier owner, then the court may find that the parties intended the easement to continue if the prior use was continuous, apparent (open and obvious), and reasonably necessary to the dominant land's use and enjoyment.

Unlike Easement by necessity: which requires strict necessity.

Easement by Perscription

COAH

Similar to adverse possession.

Continuous, actual, open, and hostile use for a specific period

UNLIKE adverse possession, the use need not be exclusive (such as a public easement to access a beach)

Scope of an easement is limited to the nature and extent of the adverse

Easement by estoppel 

 Good-faith, reasonable, detrimental reliance on permission by a serviant estate holder may create an easement by estoppel. 

Does an easement appurtenant transfer automatically with the land with which it relates?

yes, both benefit and burden

How are easements created?

PING

Prescription: 

Implication: if division, implied from existing use if apparent and reasonably necessary to dominant land's use/enjoyment

Necessity: division creates landlock

Grant: If greater than one year, must be in writing

How are easements terminated?

END CRAMP

Estoppel: servient landlord materially changes position in reasonable reliance that easement won't be enforced

Necessity
Destruction of servient land:

Condemnation:

Release: (in writing) 

Abandonment: physical action by holding expressing intent to never use again

Merger: if separated again later doesnt automatically revive

Perscription: servient owner interferes

What is a license?

Privilege to enter land for specific purpose

informal and freely revocable, unless estoppel -- licensee interested substantial labor in reasonable reliance on continuation

What is a profit?

Permission to enter land and take soil, same rules as easements

What is a profit a pendre?

nonpossessory right to enter another's land to remove specific natural resources (such as oil, gas, minerals, timber, or game.

What is a covenant?

contractual promise to do or not do something on land

What are the requirements for a covenant's burdens to run with the land?

WITHHVN

Writing (by original parties)

Intent (by original parties to run)

Touch/Concern 

Horizontal and Vertical Privity 

Notice (Actual, Record, or Inquiry)

What are the requirements for a covenant's benefits to run with the land?

WITV

Writing;

Intent;

Touch/Concern;

Vertical Privity

Wehn do negative covenants run with the land?

if they restrict the owner's use or enjoyment of the land (e.g., a covenant not to use the property for vacation rentals).

When do affirmative covenants run with the land?

If they require the owner to do something related to use and enjoyment of the land (e.g., a covenant to maintain a fence.

Is a subsequent purchaser without notice of a burdening covenant bound by it?

No

Does the requirement for a benefit or a burden to run with the land require horizontal privity?

Burden only

What is horizontal privity?

A shared property interest apart from the covenant itself.

landlord & tenant

grantor & grantee

debtor & creditor

What are equitable servitude?

Covenants about land use that are enforced at equity by injunction

What are the requirements for the creation of an equitable servitude?

WITNES

Writing

Intent

Touch/Concern

Notice

Equitable Servitude

What is the majority rule for an implied reciprocal servitude? (planned subdivision)

What are defenses?

Requirements: General Scheme by subdivider when sale began and notice

Defenses: Most USED changed circumstances. Sometimes latches, and unclean hands

What is the riparian rights doctrine?

Water belongs to landowners (riparians) bordering water courses

What is the prior appropriation doctrine?

Water initially belongs to the state

Right to divert and make beneficial use can be acquired by individual

Rights determined by priority of beneficial use

First in time first in right generally.

What are the requirements for a zoning variance?

1. undue hardship

2. variance wont decrease neighboring property value

Determined via administrative action before a zoning board.

What is the lateral support doctrine?

A landowner has a right to lateral support from adjoining land.

Adjoining land in natural state: Strict Liability 

Can show land with would have collapsed in natural state: Strict Liability

Adjoining Land has been improved: negligence.

Enforceability of Liquidated damages clause

The touchstone for enforceability is that the amount is reasonable. 

Easement by Estoppel

Created through good-faith, reasonable, detrimental reliance on permission by a servient estate holder

Implied Easement

Quasi-easement exists when the original owner owned both apartments in the duplex, because of his use of Unit A to access Unit B was continuous, apparent, and reasonably necessary to the use and enjoyment of Unit B.

Scope is determined by prior use, and becomes implied when the units are sold.

No Cat restriction in condos, is that ok?