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Real Property - CA Bar Exam Outline
CavaLaw

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LAND ACQUISITION

-- ISSUES --



Many issues in real property center around the acquisition of real property or an interest in real proepty. Typically property is acquired by adverse possession or by an intervivos transfer, such as through a land sale contract or by granting a deed, or by a devise in a will.


LAND ACQUISITION

-- ADVERSE POSSESSION ---

DEFINED



Adverse possession allows one who has wrongfully entered a property to obtain possession  of that property when there has been actual possession, which is open and notorious, and the possession is hostile continuously for the statutory period.


LAND ACQUISITION

-- ADVERSE POSSESSION --

REQUIREMENTS

ACTUAL POSSESSION


The claimat must actually have exclusive use of the property; which means he must physically occupy the premises.


LAND ACQUISITION

-- ADVERSE POSSESSION --

REQUIREMENTS

ACTUAL POSSESSION

Exclusive use



The true owner must be excluded from the premises and the property may not be open to the public.


LAND ACQUISITION

-- ADVERSE POSSESSION ---

REQUIREMENTS

ACTUAL POSSESSION

Partial Possession



A reasonable percentage of the property must be actually used. A claimant may only claim possession of the portion of the property actually used. (e.g., if a claimant occupied 1 acre of 200-acre parcel, he may only claim adverse possession of the 1 acre.)


LAND ACQUISITION

-- ADVERSE POSSESSION --

REQUIREMENTS

ACTUAL POSSESSION

Tenant Possession



The claimant may lease the premises to a tenant to satisfy the actual possession element.


LAND ACQUISITION

-- ADVERSE POSSESSION --

REQUIREMENTS

OPEN AND NOTORIOUS AND VISIBLE


The claimant must possess and use the property in a way that a typical owner of similar property would use the property. The use must be sufficiently open to put the true owner on notice of the trespass by the adverse possessor. (e.g., If a typical owner would only use the land in the summer months, the adverse possessor may only use the land seasonally also.)


LAND ACQUISITION

-- ADVERSE POSSESSION --

REQUIREMENTS

HOSTILE POSSESSION


Possession of the land must be without the owner's consent.


LAND ACQUISITION

-- ADVERSE POSSESSION --

REQUIREMENTS

HOSTILE POSSESSION

Permissive



Hostile possession is simply not permissive; it does not mean that the possession must be done in a hostile manner.


LAND ACQUISITION

-- ADVERSE POSSESSION ---

REQUIREMENTS

HOSTILE POSSESSION

Boundary Disputes



Wher one property owner occupies land, mistakenly thinking it is his own but it actually belongs to the adjacent property owner, this possession will be deemed hostile (e.g., building built over property line.)


LAND ACQUISITION

-- ADVERSE POSSESSION --

REQUIREMENTS

HOSTILE POSSESSION

Ouster of a co-tenant



Ouster of a co-tenant is required to find a hostile possession with concurrent property owners since all co-tenants have equal right to possession of the property.

a. Ouster occurs when a co-tenant claims an exclusive right to possession and refuses occupancy to his co-tenant.


LAND ACQUISITION

-- ADVERSE POSSESSION --

REQUIREMENTS

CONTINUOUS USE FOR STATUTORY PERIOD

Statutory Period



At common law, the statutory period is 20 years; it varies among the states but is typically at least 15 years.


LAND ACQUISITION

-- ADVERSE POSSESSION --

REQUIREMENTS

CONTINUOUS USE FOR STATUTORY PERIOD

Continuous use



Continuous possession means that the owner may not reenter to regain possession during the statutory time. If he doesn, the adverse possessor's time for possession starts over.


LAND ACQUISITION

-- ADVERSE POSSESSION --

REQUIREMENTS

CONTINUOUS USE FOR THE STATUTORY PERIOD

Seasonal Use



Seasonal use of a property may still satisfy the continuous possession element if this is the way a typical owner of similar property would use the land. The intermittent activities must be of the sort only done by the true owners (e.g., Erecting a small cabin to use during hunting season may be typical seasonal use, but simply using the property to hunt would not be since nonowners would do the same.



LAND ACQUISITION

-- ADVERSE POSSESSION --

REQUIREMENT

CONTINUOUS USE FOR THE STATUTORY PERIOD

Tacking



One adverse possessor may tack his time with the time of another adverse possessor to meet the required statutory period for adverse possession if the two adverse possessors are in privity (e.g., adverse possessor leases the premises to another and acts as landlord.)


LAND ACQUISITION

-- ADVERSE POSSESSION --

EFFECT



Adverse possesion does not convey marketable title. However, the title can be perfected and made marketable by means of a judicial action to quiet title.


LAND ACQUISITION

-- ADVERSE POSSESSION --

FACT TRIGGERS



- Attempted transfer of property that is ineffective and the purported new owner acts like an owner (K fails to meet SOF, deed not properly delivered, etc.)
- Fact pattern includes events occurring 15 to 20 years in the past.
- Seasonal use of a property, such as a vacation home or hunting cabin.
- Building is placed over the property line and onto neighbor's land.


LAND ACQUISITION

-- LAND SALE CONTRACT --

GENERALLY



The K for a conveyance of an interest in real estate typically governs the agreement until the time of closing, at which time the deed becomes the operative document governing the land transfer.


LAND ACQUISITION

-- LAND SALE K --

CONTRACT LAW GOVERNS

SOF REQUIREMENTS


The SOF applies:
1. SOF requirements:
    a. The K must be in writing;
    b. Name the parites;
    c. Signed by the party to be bound;
    d. Sufficiently describe the land; and
    e. State some consideration (purchase price).


LAND ACQUISITION

-- LAND SALE K --

CONTRACT LAW GOVERNS

SOF APPLIES

Part performance exceptions to the SOF



A. Possession plus payment: Buyer has possession of the land and paid all or part of the purchase price.
B. Substantial improvements are made to the premises.
C. Conveyance made by the seller.


LAND ACQUISITION

-- LAND SALE K --

MARKETABLE TITLE



There is an implied promise in every land sale K that the seller covenants to transfer marketable title at the time of closing. Marketable title is title free from reasonable doubt about the seller's ability to convey what he purports to convey.


LAND ACQUISITION

-- LAND SALE K --

MARKETABLE TITLE

FACT TRIGGERS


- Encumbrances, such as an outstanding mortgage or lien (but the seller has until escrow closes to pay it off).
- Record chain of title indicating the seller does not have a full interest in the property to convey.
- An easement that reduces "full enjoyment" of the premises.
- Use restrictions, such as real covenants.


LAND ACQUISITION

-- LAND SALE K --

EQUITABLE CONVERSION



The doctrine of equitable conversion provides that once the K is signed, the buyer is deemed the owner of real property, even though closing has not yet occurred. If the property is destroyed prior to closing, the risk of that loss is imposed on the buyer of the property. Some states have statutes that provide for the opposite result.


LAND ACQUISITION

-- LAND SALE K --

REMEDY



The nonbreaching party to a land sale contract can sue for damages or specific performance. Specific performance is usually the preferred remedy because land is unique.


LAND ACQUISITION

-- LAND SALE K --

REMEDY

DAMAGES


Typically, damages are calculated as the difference between the market price and the K price.


LAND ACQUISITION

-- LAND SALE K --

REMEDY

SPECIFIC PERFORMANCE


SP is a permanent injunction in K where the court orders the D to perform on the K as promised.


LAND ACQUISITION

-- LAND SALE K --

REMEDY

SPECIFIC PERFORMANCE

Requirements



1. K is valid.
2. K conditions imposed on the P are satisfied.
3. Inadequate legal remedy: Damages can be inadequate because they are too speculative to calculate with certainty, the D is insolvent, there is potential for a multiplicity of suits, or because property is unique so money damages are inadequate to compensate for the loss of the property. (Real property is ALWAYS unique.)
4. Mutuality of performance: Both parties to the K must be eligible to have their performance under the K ordered by the court.
5. Feasibility of enforcement: The injunction cannot be too difficult for the court to enforce.
6. No defenses, such as laches, unclean hands, or any defenses to the underlying K (e.g., lack of consideration, SOF, sale to a bona fide purchaser, etc.)


LAND ACQUISITION

-- LAND SALE K --

REMEDY

EXAM TIP


Use the mnemonic Chocolate Cake Is My Favorie Dessert to memorize the 6 essential elements of specific performance: valid Contract, contract Conditions satisfied, Inadequate legal remedy, Mutuality of performance, Feasibility of enforcement, and no Defenses.


SECURITY INTERESTS

-- MORTGAGE --



Real property is often encumbered by a mortgage.

A mortgage is a financing arrangement that conveys a security interest in land where the parties intend the land to be collateral for the repayment of a monetary obligation. The buyer and/or borrower is the mortgagor. The lender is the mortgagee.


SECURITY INTERESTS

-- MORTGAGE --

WRITING REQUIRED



1. SOF: A mortgage must typically be in writing and satisfy the SOF.
2. Exception to SOF. An equitable mortgage can occur. (e.g., A buyer delivers a deed to the mortgagee rather than signing a note or mortgage deed. Parol evidence is allowable to show intent of the parties.)


SECURITY INTERESTS

-- MORTGAGE --

RIGHTS OF THE PARTIES



Until a foreclosure occurs, if ever, the buyer-mortgagor has right to possession of the property and title; the credit-mortgagee has a lien, which grants the right to look to the land in the event of default. Mortgages are transferable.


SECURITY INTERESTS

-- MORTGAGE --

FORECLOSURE



Foreclosure is a process by which the mortgagee may reach the land in satisfaction of debt if the mortgagor is in default.


SECURITY INTERESTS

-- MORTGAGE --

FORECLOSURE

JUDICIAL FORECLOSURE


A mortgagee must foreclose by proper judicial proceeding.


SECURITY INTERESTS

-- MORTGAGE --

FORECLOSURE

PRIORITY OF LOANS


The land is sold and proceeds go to satisfy the debt(s) secured by the property. Any debts secured by the property are paid in descending order of priority (usually chronologically). Each morgagee/lien holder is entitled to payment in full before a lower-ranking creditor receives any payment.
  a. Purchase money mortgage(PMM) is a mortgage given to secure a loan that enables the debtor to originaally purchase the property. A PMM receives priority over non-PMM mortgages, but a PMM may not get a deficiency judgment against the debtor.


SECURITY INTERESTS

-- MORTGAGE --

FORECLOSURE

ANTIDEFICIENCY STATUTES


Antideficiency statutes limit a lender to receiving no more than the value of the loan.  Any excess remaining is returned to the buyer from the proceeds of a foreclosure sale after paying off all debts.


SECURITY INTERESTS

-- MORTGAGE --

FORECLOSURE

DEFICIENCY JUDGMENT


Deficiency judgment occurs when the property is worth less than the amount owed on the outstanding loan(s). A lender can only sue the debtor personally for the difference if:
a. There was a judicial foreclosure; and
b. The loan was not a "purchase money mortgage."


SECURITY INTERESTS

-- MORTGAGE --

REDEMPTION



When a mortgage is paid off, the property is "redeemed" from the mortgage.


SECURITY INTERESTS

-- DEED OF TRUST --



A deed of trust is similar to a mortgage, except the debtor is the trustor and the deed of trust is given to a third-party trustee.


SECURITY INTERESTS

-- INSTALLMENT K --



A buyer makes a down payment and pays off the balance in installments. The difference between this and a mortgage is that the buyer does not receive a deed until the land is paid off, and the foreclosure process is simplified. Typically, if the buyer is in default, the seller gets back the property and gets to keep the installment payments.


SECURITY INTERESTS

-- CONVEYANCE BY DEED --



A deed is a document that serves to pass legal title from the grantor to the grantee when it is lawfully executed and properly delivered.


SECURITY INTERESTS

-- CONVEYANCE BY DEED --

DEED REQUIREMENTS



Much like a land sale K, a deed must meet the following formalitites in order to be lawfully executed (with the big difference being that consideration is not required for a deed):
a. Identification of the parties.
b. Signature of the grantor, which is witnessed or notarized.
c. Adequate description of the property.
d. No consideration is required (it may be an intervivos gift).


SECURITY INTERESTS

-- CONVEYANCE BY DEED --

THREE TYPES OF DEEDS

QUITCLAIM DEED


A quitclaim deed conveys whatever interest the grantor actually has in the property but contains no covenants of title.


SECURITY INTERESTS

-- CONVEYANCE BY DEED --

THREE TYPES OF DEEDS

GENERAL WARRANT DEED


Warrants against all defects in title and contains six covenants for title. Three of the covenants are present and three are future covenants.


SECURITY INTERESTS

-- CONVEYANCE BY DEED --

THREE TYPES OF DEEDS

GENERAL WARRANTY DEED
 
Present Covenants



Present covenants are breach at the time of the sale (when deed is deliverd), if breached at all.
a. Seisin: Grantor warrants he owns what he purports to own.
b. Right to convey: Grantor warrants he has the power to make the conveyance.
c. Against encumbrances:Grantor warrants there are no mortgages, liens, easements, or use restrictions on the land.


SECURITY INTERESTS

-- CONVEYANCE BY DEED --

THREE TYPES OF DEEDS

GENERAL WARRANTY DEED

Future covenants



Future covenants run with the land, are continuous, and are breached, if ever, at the time the grantee is disturbed in possession.

a. Warranty of title: Grantor promises to defend should there by any lawful claims of title asserted by others.
b. Quiet enjoyment: Grantor promises grantee will not be disturbed in possession by any third parties' lawyful claims of title.
c. Further assurances: Grantor will do whatever future acts are reasonably necessary to perfect title.

TIP: Look for a warranty deed issue where there is an undisclosed easement.


SECURITY INTERESTS

-- CONVEYANCE BY DEED --

THREE TYPES OF DEEDS

STATUTORY SPECIAL WARRANTY




Some states enforce promises by statute where the grantor promises (on behalf of himself only) that he hasn't conveyed the property to others and that the estate is free from encumbrances.


SECURITY INTERESTS

-- CONVEYANCE BY DEED --

DELIVERY OF DEED



A deed must be property delivered and accepted to have effect.


SECURITY INTERESTS

-- CONVEYANCE BY DEED --

DELIVERY OF DEED

DELIVERY REQUIREMENTS


1. There must be a physical transfer of the deed by the grantor to the grantee or a third party; and
2. Words or conduct indicating the grantor's intent to make a present transfer of the deed. The following create a strong presumption of present intent to transfer:
  a. Recording the deed.
  b. Grantor giving the deed to the grantee.
3. Acceptance of the deed by the grantee must also occur. Rejection of the deed by the grantee defeats delivery.


SECURITY INTERESTS

-- CONVEYANCE BY DEED --

DELIVERY OF DEED

TITLE PASSING


Tite passes immediately to the grantee upon propery delivery, thus it is not revocable.


SECURITY INTERESTS

-- CONVEYANCE BY DEED --

MERGER DOCTRINE



Once the property closes, the deed, rather than the underlying land sale contract, becomes the operative document governing the transaction. Any obligation imposed in the K is deemed discharged at closing unless the obligation is repeated in the deed.


SECURITY INTERESTS

-- DEVISE BY WILL --

ADEMPTION



Ademption occurs where a testator has devised a specific property to a specific party under his will, but that specific property is no longer a part of the estate at the time of testator's death. The general rule is that the gift is "adeemed," in other words fails, and the legatee gets nothing.


SECURITY INTERESTS

-- DEVISE BY WILL --

EXONERATION



Exoneration is the general rule that when a person receives a bequest of specific property, and that property is subject to a lien or mortgage, the encumbrance will be paid off with the estate's personal property, and the recipient receives the property "free and clear" of the mortgage, unless the testator indicated a contrary intent.


SECURITY INTERESTS

-- DEVISE BY WILL --

LAPSE AND ANTILAPSE



The common law doctrine of lapse provides that if a beneficiary named in a will predeceases the testator, the bequest fails. Most states have antilapse statutes that allow the predeceased beneficiary's heirs to take, especially if they are kin to the testator.


SECURITY INTERESTS

-- DEVISE BY WILL --

ISSUE SPOTTING TIP



The intersection of wills and real property can provide the basis for a crossover question.


SECURITY INTERESTS

-- RECORDING ACTS --



Recording acts function to provide a purchaser of land with a mechanism to determine whether there is an earlier transaction regarding the property that is inconsistent with his own transaction. The recording acts provide a buyer with a way to ensure he is getting good title.


SECURITY INTERESTS

-- RECORDING ACTS --

COMMON LAW RULE



Without a recording act in place, the common law rule of "first in time, first in right" applies.


SECURITY INTERESTS

-- RECORDING ACTS --

THREE TYPES OF RECORDING ACTS

PURE RACE STATUTES


The first to record wins. This statute rewards the winner of the race to the recorder's office. (Not commonly used either on the bar exam or in real life.)


SECURITY INTERESTS

-- RECORDING ACTS ---

THREE TYPES OF RECORDING ACTS

PURE NOTICE STATUTES


A subsequent bona fide purchaser (BFP) prevails over a grantee that didn't record.
  a. Language example: "No conveyance or mortgage of real property shall be good against subsequent purchasers for value and withot notice unless the same be recorded according to law."


SECURITY INTERESTS

-- RECORDING ACTS --

THREE TYPES OF RECORDING ACTS

RACE NOTICE STATUTES


A subsequent BFP that records first prevails over a grantee that didn't record first.
  a. Language example: "No conveyance or mortgage of real property shall be good against subsequent purchasers for value and without notice, who shall first record."


SECURITY INTERESTS

-- RECORDING ACTS --

PROTECT BONA FIDE PURCHASERS & MORTGAGORS



Recording acts protect BFPs and mortgagors.

A BFP is one who takes for value and is without notice of the prior interest.
  1. Recording acts don't protect donees because a donee doesn't take "for value." However, the court won't look into the adequacy of the consideration; so long as it is more than nominal, it will be deemed "for value."
  2. Notice can be provided three ways: Notice can occur by actual, record (constructive), or even inquiry notice.


SECURITY INTERESTS

-- RECORDING ACTS --

PROTECT BFP & MORTGAGORS

ONLY PROTECT SUBSEQUENT GRANTEES



The recording acts only protect subsequent grantees, never the first grantee. This is because the common law rule of "first in time, first in right" will apply, unless a recording act functions to allow the second grantee to take over the first grantee.


SECURITY INTERESTS

-- RECORDING ACTS --

APPLICATION



Recording acts apply to every instrument by which an interest in land can be created or modified or can be recorded, including conveyances, mortgages, life estates, restrictive covenants, easements, etc.


SECURITY INTERESTS

-- RECORDING ACTS --

EXAM TIP



The examiners may not tell you which type of recording act statute governs. Rather, they may provide statute language and expect you to determine which type of statute it is. Analyze the language and look for key words: "records first" likely means a race statute; "good faith" and "for value" likely means a notice statute; and if both "records first" and "good faith" and/or "for value" are included in the statute, then it is likely a race-notice statute.


SECURITY INTERESTS

-- RECORDING ACTS --

THREE TYPES OF NOTICE

ACTUAL NOTICE


Actual notice occurs when, prior to the time of closing, the buyer has actual subjective knowledge of a prior, unrecorded interest.


SECURITY INTERESTS

-- RECORDING ACTS --

THREE TYPES OF NOTICE

RECORD (CONSTRUCTIVE) NOTICE


Record (constructive) notice occurs when the prior interest was properly recorded within the chain of title. Where the prior interest is properly recorded in the grantor-grantee indexes, such that one searching the indexes would find it, notice is imputed.
  1. Exception - "wild deeds": A wild deed is one that is recorded, but not in such a way that a reasonable search of the grantor-grantee index would disclose it. Wild deeds do not provide constructive notice.


SECURITY INTERESTS

-- RECORDING ACTS --

THREE TYPES OF NOTICE

INQUIRY NOTICE


Inquiry notice occurs where the purchaser of a property is in possession of facts that would lead a reasonable person to make further inquiry (e.g., possession of the premises by one who is not the record owner, or visible evidence of the existence of an easement such as a well-worn path).


SECURITY INTERESTS

-- RECORDING ACTS --

THREE TYPES OF NOTICE

ISSUE SPOTTING TIP


The issue of "notice" can arise in several ways:
- Recordings acts
- Sale to a BFP as a defense to an easement (especially inquiry notice).
- Equitable servitudes (including implied reciprocal servitudes).
- Real covenants (for burden to run with the land).


SECURITY INTERESTS

-- RECORDING ACTS --

CHAIN OF TITLE

ESTOPPEL BY DEED


If one purports to convey an interst in realty that he does not own, but he subsequently obtains an interest in that realty, he cannot deny the validity of that conveyance and the estate will automatically transfer to the grantee. Estoppel by deed does not apply to a transfer by quitclaim deed.


SECURITY INTERESTS

-- RECORDING ACTS --

CHAIN OF TITLE

SHELTER DOCTRINE


One who takes from a BFP will "stand in the shoes" of the BFP and prevail against any entity against which the transferor-BFP would have prevailed in his own action.


ESTATES IN LAND

-- FREEHOLD ESTATES --



Freehold estates offer a present possessory interest in the estate.


ESTATES IN LAND

-- FREEHOLD ESTATES --

FEE SIMPLE ABSOLUTE



Fee simple absolute conveys absolute ownership of potentially infinite duration. It is the most unrestricted and longest estate.


ESTATES IN LAND

-- FREEHOLD ESTATES --

FEE TAIL



Fee tail allows an owner of land to ensure that the property remains within the family. It lasts only as long as there are lineal blood descendants of the grantee. Modernly, it is virtually abolished.


ESTATES IN LAND

-- FREEHOLD ESTATES --

FEE SIMPLE DEFEASIBLE



FSD allows a property to be held or conveyed to another; however the property is subject to a stated limitation. There are three types: fee simple determinable, fee simple subject to condition subsequent, and fee simple subject to an executory limitation.


ESTATES IN LAND

-- FREEHOLD ESTATES --

FEE SIMPLE DEFEASIBLE

FEE SIMPLE DETERMINABLE


Fee simple determinable automatically terminates at the occurrence of a specified event. If the specified event occurs, the property reverts back to grantor.
1. Possibility of reverter is the future interest the grantor retains.
2. Created by words of duration such as "so long as," "during," "while," "until," or "unless."


ESTATES IN LAND

-- FREEHOLD ESTATES --

FEE SIMPLE DEFEASIBLE

FEE SIMPLE SUBJECT TO CONDITION SUBSEQUENT


Fee simple subject to condition subsequent has the potential to terminate an estate at the occurrence of a stated event, but the termination is not automatic.
1. Right of reentry is the future interest the grantor retains, but it is not automatic and must be exercised to have effect.
2. Created by words that carve out a right of reentry in the grantor and includes conditional language such as "but it," "provided that," or "upon the condition that" to indentify the conditional event.


ESTATES IN LAND

-- FREEHOLD ESTATES --

FEE SIMPLE DEFEASIBLE

FEE SIMPLE SUBJECT TO AN EXECUTORY LIMITATION


Fee simple subject to an executory limitation automatically terminates a preceding estate at the occurrence of a stated event, but the estate then passes to a third person rather then reverting to the grantor.
  1. Executory interest is the future interest the third party holds.


ESTATES IN LAND

-- FREEHOLD ESTATES --

LIFE ESTATE



Life estate is an interest that lasts for the lifetime of a person.


ESTATES IN LAND

-- FREEHOLD ESTATES --

LIFE ESTATE

PER AUTRE VIE


A life estate per autre vie is similare to a life estate but lasts for the lifetime of an identified third party.


ESTATES IN LAND

-- FREEHOLD ESTATES --

LIFE ESTATE

DEFEASIBLE


A life estate may be defeasible like a fee simple.


ESTATES IN LAND

-- FREEHOLD ESTATES --

LIFE ESTATE

CONVEYABLE


A life estate holder may convey his interst, but not an estate greater than what is held.


ESTATES IN LAND

-- FREEHOLD ESTATES --

LIFE ESTATE

WASTE


A life tenant has a duty not to commit waste on the property.


ESTATES IN LAND

-- FUTURE INTERESTS --

POSSIBILITY OF REVERTER



Possibility of reverter follows a fee simple determinable.


ESTATES IN LAND

-- FUTURE INTERESTS --

RIGHT OF REENTRY



Right of reentry follows a simple subject to a condition subsequent.


ESTATES IN LAND

-- FUTURE INTERESTS --

REVERSION



Reversion is created when the holder of an estate transferes to another something LESS than the entire estate.


ESTATES IN LAND

-- FUTURE INTERESTS --

REMAINDER



Remainder is a future interst that can only become possessory upon the expiration of a prior possessory estate created by the same instrument.  A remainder NEVER follows a defeasible fee.


ESTATES IN LAND

-- FUTURE INTERESTS --

REMAINDER

VESTED REMAINDER


A vested remainder is one created in an unascertained person, or one that is subject to a condition precedent.


ESTATES IN LAND

-- FUTURE INTERESTS --

REMAINDER

CONTINGENT REMAINDER


Contingent remainder is one created in an unascertained person or one that is subject to a condition precedent, or both.


ESTATES IN LAND

-- FUTURE INTERESTS --

REMAINDER

ALTERNATIVE CONTIGENT REMAINDER


Alternative contingent remainder occurs where both contingent parties have the capacity to take over and it pivots on the same condition (e.g., to A for life, then to B and his heirs if B marries C, otherwise to D).


ESTATES IN LAND

-- FUTURE INTERESTS --

EXECUTORY INTEREST



Executory interest follows a fee simple subject to an executory limitation. There are two types:
a. Shifting executory interest always follows a defeasible fee and cuts short the prior interest.
b. Springing executory interest becomes possessory at some point in the future, without cutting short a prior interest.


ESTATES IN LAND

-- TECHNICAL RULES --

ABSOLUTE RESTRAINTS ON ALIENATION



Absolute restraints on alienation are void, such as a condition that a property may never be sold. However, reasonable restraints on alienation will be upheld, such as a condition that a property only be used for a certain purpose.


ESTATES IN LAND

-- TECHNICAL RULES --

RULE OF DESTRUCTIBILITY OF CONTINGENT REMAINDERS



1. At common law, a contingent remainder was destroyed if it was still contingent at the time the preceding estate ended.
2. Modernly, the rule is mostly abolished, so the remainderman's interest would be converted to a springing executory interest.


ESTATES IN LAND

-- TECHNICAL RULES --

RULE AGAINST PERPETUITIES (RAP)

GENERAL


RAP provides that no interest is good unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest. RAP is easier to work with once the interests to which it can be applied are identified.


ESTATES IN LAND

-- TECHNICAL RULES --

RAP

APPLICATION


RAP applies to:
1. Contingent remainders
2. Executory interests
3. Options "in gross" or right of first refusal to purchase land.


ESTATES IN LAND

-- TECHNICAL RULES --

RAP

DOES NOT APPLY


RAP does not apply to certain types of interest because it is not possible for them to violate RAP.
1. Vested remainders (vest at creation)
2. Reversion (vests at creation)
3. Possibility of reverter (vests at creation)
4. Right of reentry (vests at creation)


ESTATES IN LAND

-- TECHNICAL RULES --

RAP

FIVE STEPS TO ASSESS RAP


1. Classify the future interests to determine if RAP applies.
2. Identify the measuring life.
3. Identify the triggering event (when an interest must vest or fail)
4. Analyze the possibilities of what could possibly happen (postpone the triggering event 21 years after the lives in being are dead).
5. Reclassify the interest


ESTATES IN LAND

-- TECHNICAL RULES --

RAP

EXAM TIP


Estates in land are very infrequently tested on the essay portion of the bar exam, though they are tested in detail on the MBE.


CONCURRENT ESTATES

-- THREE TYPES --



1. Joint tenancy
2. Tenancy in common
3. Tenancy by the entirety


CONCURRENT ESTATES

-- JOINT TENANCY --

DEFINED



Joint tenancy is when two or more people hold a single, unified interest in a property with a right to survivorship.


CONCURRENT ESTATES

-- JOINT TENANCY --

ATTRIBUTES

AUTOMATICE RIGHT TO SURVIVORSHIP


At the death of one joint tenant, the remaining joint tenant automatically becomes the owner of the deceased joint tenant's interest.


CONCURRENT ESTATES

-- JOINT TENANCY --

ATRRIBUTES

EQUAL RIGHT TO OCCUPY


Each joint tenant has an equal right to occupy the entire premises.


CONCURRENT ESTATES

-- JOINT TENANCY --

ATTRIBUTES

EQUAL SHARES


Each joint tenant must own the property in equal shares with the other joint tenants (e.g., two parties each with 1/2 interest, or three parties with 1/3 interest).


CONCURRENT ESTATES

-- JOINT TENANCY --

ATTRIBUTES

CL PRESUMPTION


At common law, a joint tenancy was presumed, but today a tenancy in common is presumed unless the right of survivorship is clearly expressed.


CONCURRENT ESTATES

-- JOINT TENANCY --

CREATION

FOUR UNITIES


1. Time: Interest created at the same time.
2. Title: Parties take in the same title.
3. Interest: Identical equal interests.
4. Possession: Same right to possession of the premises.
5. And the express right of survivorship.


CONCURRENT ESTATES

-- JOINT TENANCY --

SEVERANCE



Unliateral action by one joint tenant ma sever the joint tenancy.


CONCURRENT ESTATES

-- JOINT TENANCY --

SEVERANCE

CONVEYANCE


A conveyance (sale or inter vivos transfer) made by one joint tenant will serve to sever a joint tenancy.

1. Severance with two joint tenants: The remaining joint tenant will hold the property with the new owner as tenants in common.
2. Severance with three or more joint tenants. The new owner will take his portion as a tenant in common to the remaining joint tenants, but the remaining joint tenants will continue to have a joint tenancy with each other only. (e.g., Three joint tenants - A, B, and C - each have a 1/3 interest. A sells his interest to D. D holds a 1/3 interest as a tenant in common to B and C.  B and C continue to have a joint tenancy with each other.)


CONCURRENT ESTATES

-- JOINT TENANCY --

SEVERANCE

WILL


A joint tenancy cannot be devised by will. Any attempt is void because the decedent's interest is extinguished at death since his interest automatically transfers to the surviving joint tenant.


CONCURRENT ESTATES

-- JOINT TENANCY --

SEVERANCE

MORTGAGE


One joint tenant may not encumber the interest of the other joint tenant. The effect of one joint tenant obtaining a mortgage is dependent on whether the jurisdiction adopts the lien theory or title theory approach.


CONCURRENT ESTATES

-- JOINT TENANCY --

SEVERANCE

MORTGAGE

Lien Theory



Majority Rule: The execution of a mortgage by one joint tenant does not sever the joint tenancy.


CONCURRENT ESTATES

-- JOINT TENANCY --

SEVERANCE

MORTGAGE

Title Theory



Minority Rule: The execustion of a mortgage by one joint tenant on his share will sever the joint tenancy as to his share ONLY.


CONCURRENT ESTATES

-- JOINT TENANCY --

SEVERANCE

FOR BOTH THEORIES


The joint tenancy is severed if the mortgage is actually foreclosed and the property is sold.


CONCURRENT ESTATES

-- JOINT TENANCTY --

SEVERANCE

LEASE


The courts are split as to whether issuing a lease severs a joint tenancy.


CONCURRENT ESTATES

-- TENANCY IN COMMON --




TIC is a concurrent estate where two or more own a property with no right of survivorship.

1. No right of survivorship.
2. Equal right to occupy: Each co-tenant has a joint right to possession of the whole property and owns an interest in the property jointly with another.
3. Nonequal shares acceptable. Co-tenants may hold dirrenet proportionate interests. (e.g., A owns 1/3 interest and B owns 2/3 interest).
4. Co-tenant may sell, will, or gift his interest. The new grantee will step in the shoes of the grantor.
5. At common law, a joint tenancy was presumed, but modernly a tenancy in common is presumed where there are multiple owners.


CONCURRENT ESTATES

-- TENANCY BY THE ENTIRETY --



Tenancy by the entirety is similar to a joint tenancy, but only between a husband and wife.

1. Recognized in 21 states, but NOT in CA.
2. Neither tenant can unilaterally convey their share or encumber the entire property or break the right of survivorship.
3. Created ONLY in a husband & wife with the right of survivorship. In states recognizing tenancy by the entirety, it is presumed in any conveyance to a husband and wife unless otherwise stated.
4. Severance: May only be severed by divorce, death, mutual agreement, or execution by a joint creditor of both parties.


CONCURRENT ESTATES

-- CO-TENANCY GENERAL RULES --

POSSESSION AND USE

RIGHT TO THE WHOLE


Possession and use of the property by one co-tenant:
  a. Each co-tenant has the right to possess the whole property, but no co-tenant has the right to exclusively possess any part of the property. 
 


CONCURRENT ESTATES

-- CO-TENANCY GENERAL RULES --

POSSESSION AND USE

DUTY TO ACCOUNT


There is no duty to account for profits and losses.  A co-tenant in possession has NO duty to account to another co-tenant for the:
1. Rental value of his own occupancy of the premises, or
2. Any profits retained from his use of the land.
  a. Except, any net profits received from exploitation of the land, such as mining, and any rents collected from third parties must be shared.


CONCURRENT ESTATES

-- CO-TENANCY GENERAL RULES --

POSSESSION AND USE

OUSTER


If a co-tenant has refused occupancy to his co-tenant and claims an exclusive right to possession, this constitutes an ouster.

1. The co-tenant must accout to his ousted co-tenant for the fair rental value of the premises.
2. An ousted co-tenant may also bring an action to regain possession.


CONCURRENT ESTATES

-- CO-TENANCY GENERAL RULES --

ACCOUNTING



Accounting of payments made and recieved on behalf of the jointly owned property.


CONCURRENT ESTATES

-- CO-TENANCY GENERAL RULES --

ACCOUNTING

PAYMENTS-MADE GENERAL RULE

Taxes & Mortgage Interest



Co-tenants are responsible for their proportionate share of carrying costs, such as taxes and mortgage interest payments.


CONCURRENT ESTATES

-- CO-TENANCY GENERAL RULES --

ACCOUNTING

PAYMENTS-MADE GENERAL RULE

Payments made in excess of share



Where a co-tenant has made payments on behalf of the property for taxes, repairs, or mortgage payments that are in excess of his pro rata share, he may seek contribution, but there is no automatic right to collect the pro-rata share from his co-tenant. The co-tenant may deduct these payments from rents received, or seek reimbursement "off the top" if the property is sold.


CONCURRENT ESTATES

-- CO-TENANCY GENERAL RULES --

ACCOUNTING

PAYMENTS-MADE GENERAL RULE

Improvements



Co-tenants have no right to reimbursement for improvements


CONCURRENT ESTATES

-- CO-TENANCY GENERAL RULES --

ACCOUNTING

PAYMENTS-RECEIVED GENERAL RULE


Co-tenants must share net rents received from third parties, or net profits received from the exploitation of the land itself.


CONCURRENT ESTATES

-- CO-TENANCY GENERAL RULES --

ACCOUNTING

DUTY OF FAIR DEALING


There is a general duty of fair dealing between all co-tenants.


CONCURRENT ESTATES

-- CO-TENANCY GENERAL RULE --

PARTITION



This occurs when, through voluntary agreement or judicial action if in best interest of all parties, the property is divided, or ordered sold and the proceeds distributed.

a. Accounting: Each party has a right to have an accounting and be reimbursed for taxes or repairs paid in excess of his proportionate share.
b. Partition is not available to a tenancy by the entireties, only joint tenant or tenants in common.


CONCURRENT ESTATES

-- CO-TENANCY GENERAL RULE --

ENCUMBRANCE



A co-tenant may encumber his own share of the property with a loan or judgment lien, but may not encumber the share of his co-tenant.


LANDLORD & TENANT

-- CREATION --



A tenancy is created when an owner of land conveys to another a lesser interest in a property.  In addition to a life estate, there are several types of tenancy.


LANDLORD & TENANT

-- TYPES OF TENANCIES --

TENANCY FOR YEARS



A tenancy for years refers to a lease for a fixed period of time. It refers to any fixed time period such as one day, two months, one year, five years, etc.

SOF writing is required for terms greater than one year.

Automatic termination: No notice is required to terminate because a term of years automatically terminates on the end date of the time period.


LANDLORD & TENANT

-- TYPES OF TENANCIES --

PERIODIC TENANCY



Automatically continues from one period to the next, unless one of the parties terminates the lease by giving notice of termination (e.g., leases running month-to-month, year-to-year, etc).

a. Can be created by implication if the lease includes a start date, but there is no stated end date.
b. Written notice is required to terminate a periodic tenancy since the tenancy is automatically renewed in the absence of notice of termination. At common law, notice must be in accordance with the length of time period, except that if the lease is one year or longer, only six months' notice is required.
c. A holdover tenant is one whose lease has terminated, but who remains in the premises and tenders rent, which the landlord accepts. A holdover tenant is considered to have a periodic tenancy with the time period for the tenancy being the time period of the previously expired lease.


LANDLORD & TENANT

-- TYPES OF TENANCIES

TENANCY AT WILL



Tenancy at will is a tenancy for no fixed period of time, which can be terminated at any time.
 
a. Can be created by implication where the tenant takes possession with permission, but there is no specified start date or time period identified for paying rent.
b. Can be terminated at any time by either party.


LANDLORD & TENANT

-- TYPES OF TENANCIES --

TENANCY AT SUFFERENCE



Tenancy at sufference is created when a tenant wrongfully holds over past the expiration of a valid lease.
a. Landlord election: When a tenant holds over, the landlord has the option to evict the tenant or hold him over to another term as a tenant with a periodic tenancy.


LANDLORD & TENANT

-- COMMON AREAS OF DISPUTE --

DUTY TO PAY RENT



The tenant has the duty to pay rent in the amount agreed to.


LANDLORD & TENANT

-- COMMON AREAS OF DISPUTE --

DUTY TO PAY RENT

DEFENSES


A. Failure to deliver possession of the premises.
B. Breach of the covenant of quiet enjoyment.
C. Constructive eviction.
D. Destruction of the premises through no fault of the landlord, or the tenant. At common law the tenant had to continue paying rent, but modernly many states allow the T to terminate the lease.
E. Potential K defenses, such as frustration of purpose.
F. Surrender of the premises by the tenant, which the L accepts.
G. Re-lettting of the property after an abandonment done on behalf of the T. If the new T's rent is less, the old T will owe the difference, so long as he was properly notified.


LANDLORD & TENANT

-- COMMON AREAS OF DISPUTE --

POSSESSION OF THE PREMISES

HOLDOVER TENANT


1. At common law, A L could use reasonable force to remove holdover T and reclaim the property.

2. Modernly, a L must not engage in self-help, such as manually removing the T.


LANDLORD & TENANT

-- COMMON AREAS OF DISPUTE --

POSSESSION OF THE PREMISES

EVICTION


A L may typically terminate a lease for a material breach. A L must evict through the courts or continue the rental relationship, give notice, and sue for damages.


LANDLORD & TENANT

-- COMMON AREAS OF DISPUTE --

POSSESSION OF THE PREMISES

ABANDONMENT


If a T abandons the premises the L at his option may:
1. Accept the surrender and terminate the lease; or
2. Re-let on behlaf of the T (T must be notified); or
3. Leave the premises vacant and sue for rent as it becomes due.
  a. Traditionally, there was no duty to mitigate.
  b. Modernly, there is a duty to mitigate imposed by many courts on the L.


LANDLORD & TENANT

-- COMMON AREAS OF DISPUTE --

CONDITION OF RENTAL PREMISES

COMMON LAW


Tenant takes premises "as is" and L has no duty to make the premises fit or habitable.


LANDLORD & TENANT

-- COMMON AREAS OF DISPUTE --

CONDITION OR RENTAL PREMISES

MODERN VIEW


The L must maintain all common areas, fix latent defects of which the L has knowledge, and, if the L chooses to make repairs, he must do so nonnegligently.



LANDLORD & TENANT

-- COMMON AREAS OF DISPUTE --

CONDITIONS OF RENTAL PREMISES

MODERN VIEW

Constructive eviction



Constructive eviction is treated as an eviction.
  a. Applies to residential and commercial leases.
  b. Requires that
    
i. The premises are virtually uninhabitable for their intendedd use because of a substantial interference with the property use and enjoyment;
     ii. Notice is given to the L by the T.
     iii. The L fails to meaningfully respond; and this
     iv. Causes the T to actually move out within a reasonable time.


LANDLORD & TENANT

-- COMMON AREAS OF DISPUTE --

CONDITIONS OF RENTAL PREMISES

MODERN VIEW

Actual Partial Eviction



a. L makes it physically impossible for the T to occupy some portion of the premises.

b. T may withhold the entire rent and does not have to move out.


LANDLORD & TENANT

-- COMMON AREAS OF DISPUTE --

CONDITIONS OF RENTAL PREMISES

MODERN VIEW

Implied Covenant of Quiet Enjoyment



Implied in every lease. The L warrants that he, or anyone acting for him will not interfere with T's use and enjoyment of the premises.  (May include acts of other T, but won't include the acts of strangers.)


LANDLORD & TENANT

-- COMMON AREAS OF DISPUTE --

CONDITION OF RENTAL PREMISES

MODERN VIEW

Implied Warranty of habitability



Implied warranty of habitability applies to residential leases only and requires that the premises must be fit for human habitation. Where the premises are not habitable, the T has the option to:

a. Terminate the lease and move out; or
b. Make repairs and deduct from the cost from the rent; or
c. Pay reduced rent, remain on the premises, and sue for damages.


LANDLORD & TENANT

-- COMMON AREAS OF DISPUTE --

CONDITION OF RENTAL PREMISES

MODERN VIEW

Retaliatory eviction is barred.



A T may not be evicted, have a periodic lease terminated, or have a tenancy for years not renewed because the T has asserted that the premises are not habitable.


LANDORD & TENANT

-- COMMON AREAS OF DISPUTE --

CONDITION OF RENTAL PREMISES

ISSUE SPOTTING TIPS


Look for the issues cluster of the condition of the rental premises, implied warranty of habitability, implied covenant of quiet enjoyment, constructive eviction, and possibly retaliatory eviction. Often, if one issue is present they all will be.


LANDLORD & TENANT

-- COMMON AREAS OF DISPUTE --

CONDITION OF RENTAL PREMISES

MODERN VIEW

Tort Liability of L & T



a. L must
  i. Maintain all common areas,
  ii. Fix any latent defects of which the L had knowledge, and
  iii. Any repairs assumed must be made nonnegligently,
  iv. There is a duty to inspect for defects if the premises are held open to the public.

b. T is treated like an owner for purposes of tort liabilityto third parties who come on the property.


LANDLORD & TENANT

-- DOCTRINE OF WASTE --

GENERAL



A T (applies to a life T under a life estate or a regular rental T) must prevent waste and cannot damage leased premises without effecting repair.


LANDLORD & TENANT

-- DOCTRINE OF WASTE --

THREE TYPES

VOLUNTARY WASTE


Voluntary waste occurs when a T engages in conduct, intentionally or negligently, that causes a decrease in the value of the premises.


LANDLORD & TENANT

-- DOCTRINE OF WASTE --

THREE TYPES

PERMISSIVE WASTE


Permissive waste occurs when a T neglects the property and it falls into disrepair.


LANDLORD & TENANT

-- DOCTRINE OF WASTE --

THREE TYPES

AMELIORATIVE WASTE


Ameliorative waste occurs when a T makes alterations to the property that actually increase the value of the premises. The T must restore the premises to the original condition.


LANDLORD & TENANT

-- FIXTURES --

DEFINITION



Fixtures are items that were once moveable chattel but that have become so attached to the premises they are deemed fixtures and considered part of the real estate. The following factors are considered to determine if an item is a fixture:

a. The item is firmly imbedded in the real estate.
b.  The item is peculiarly adapted or fitted to the real estate.
c. Removal of the iten would destroy the chattel or cause damage to the real estate.


LANDLORD & TENANT

-- FIXTURES --

TRADE FIXTURES



Trade fixtures are those affixed to the real estate by a commercial T for use in business. There is a strong presumption that trade fixtures are removable. The T is responsible for repairing any damage resulting from its removal.


LANDLORD & TENANT

-- FIXTURES --

ISSUE SPOTTING TIP



Look for the issues cluster of waste and fixtures since they are usually both present if one is. Note that the issue of waste can also arise in relation to the conduct of a life tenant.


LANDLORD & TENANT

-- ASSIGNMENTS & SUBLEASES --

GENERAL RULE



An interest in a lease is transferable unless the parties agree otherwise. Prohibitions against assignment and/or subleasing are enforceable.


LANDLORD & TENANT

-- ASSIGNMENTS & SUBLEASES --

ASSIGNMENT



Assignment is the transfer of the entire interest remaining on the lease term.

a. New tenant is personally liable to L for the rent because there is a privity of estate.

b. Old T is also liable to the L for the rent, unless the L specifically releases the old T by a novation because there is a privity of K.


LANDLORD & TENANT

-- ASSIGNMENTS & SUBLEASES __

SUBLEASE



Sublease is the transfer of anything less than the entire interest remaining on the lease term.

a. New T is not personally liable to the L for the rent because a sublease does not provide privity of estate.

b. Old T is liable to the L for the rent because there is privity of K.


LAND USE ISSUES

-- EASEMENTS --

DEFINITION



An easement is the right to use the land of another.
Easements are nonpossesory property interests.


LAND USE ISSUES

-- EASEMENTS --

AFFIRMATIVE



Affirmative easements entitle the holder to do something on another's land (e.g., use a driveway).


LAND USE ISSUES

-- EASEMENTS --

NEGATIVE



Negative easements prevent the landowner from doing something on his own land. These are not common (e.g., owner cannot develop land in a way that blocks the neighbor's view.)


LAND USE ISSUES

-- EASEMENTS --

TWO TYPES

APPURTENANT


Appurtenant easement is an easement that benefirs a particular parcel of land and only occurs when the easement benefit is tied to a particular piece of land. There are two estates created by an appurtenant easement:

1. Dominant estate is the benedited parcel - in other words the holder of the easement.

2. Servient estate is the burdened parcel- in other words the parcel providing the benefit to the dominant estate.


LAND USE ISSUES

-- EASEMENTS --

TWO TYPES

EASEMENT IN GROSS


Easement in gross is an easement whose benefit is provided to an individual and is not tied to a particular piece of land.


LAND USE ISSUES

-- EASEMENTS --

CREATION

EXPRESS


Express creation in writing in a deed or will.

1. The SOF writing requirements apply.
2. Reservation in grantor is a type of express easement where the grantor passes title to the land but reserves for himself the right to continue to use the land for some purpose. Typically this is included in the grant or deed.


LAND USE ISSUES

-- EASEMENTS --

CREATION

IMPLICATION


Created by implication has the following requirements.
1. Land was originally one parcel with common ownership.
2. The land is severed into more than one parcel.
3. The use of the property existed prior to the severance.
4. The easement is reasonably necessary to the dominant land's use and enjoyment of the property.


LAND USE ISSUES

-- EASEMENTS --

CREATION

NECESSITY


Easement by necessity has the following requirements:
1. Common ownership of the dominant and servient parcels.
2. Easement is strictly necessary. The necessity must exist at the time of the conveyance (e.g., landlocked parcel).
3. Prior use is not required.


LAND USE ISSUES

-- EASEMENTS --

CREATION

PRESCRIPTION


Easement by prescription is one obtained using the same principles as adverse possession. Requirements:

1. Actual use: The claimant must have actual use of the property that is adverse to the servient parcel. Unlike adverse possession, it need not be exclusive use.
2. Open, notorious, and visible use of the property.
3. Hostile use, which is without the owner's consent.
4. Continuous use, which is without the owner's consent.
5. Continuous use for the given statutory period. Tacking is allowed to satisfy the statutory period.


LAND USE ISSUES

-- EASEMENTS --

CREATION

 ESTOPPEL


Easement by estoppel can occur where the servient parcel allows use of the property such that it is reasonable that the user will substantially change his position in reliance on the belief that the permission will not be revoked.


LAND USE ISSUES

-- EASEMENTS --

SCOPE

PRESENT & FUTURE NEEDS


Courts assume the easement intends to meet both present and future needs of the dominant parcel due to normal, foreseeable development of the dominant estate. (e.g., An easement may be widened to accomodate wider cars.)


LAND USE ISSUES

-- EASEMENTS --

SCOPE

EXCESSIVE USE


Increased use that unreasonably interferes with the use of the servient estate is not permitted.


LAND USE ISSUES

-- EASEMENTS --

SCOPE

REMEDY


Remedy for excessive use or misuse is an injunctin and/or damages, but the easement will not be terminated.


LAND USE ISSUES

-- EASEMENTS --

MAINTENACE AND REPAIR OF EASEMENTS



a. The servient owner is not required to repair and maintain the easement.

b. The dominant owner has an implied right to repair and maintain the easement.


LAND USE ISSUES

-- EASEMENTS --

TRANSFER

SERVIENT (BURDEN) ESTATE TRANSFER


An easement runs (passes) with the land and transfers to the new owner of a servient estate except if the purchaser of the servient is a BFP who took for value with no notice. [Note: INquiry notice may be an issue.]


LAND USE ISSUES

-- EASEMENTS --

TRANSFER

DOMINANT




Whether the benefit runs with the land depends on whether the easement is appurtenant or in gross.

a. Appurtenant easements normally run (pass) automatically with the transfer of the dominant (benefited) estate.

b. In gross easements
  i. Common law rule is that easements in gross are not transferable.
  ii. Modernly, commercial easements in gross are transferable.


LAND USE ISSUES

-- EASEMENTS --

TERMINATION

ESTOPPEL


The servient owner materially changes position in reasonable reliance on the easement holder's assurances that the easement will no longer be enforced.


LAND USE ISSUES

-- EASEMENTS --

TERMINATION

NECESSITY


Easement by necessity ends when the necessity ends.


LAND USE ISSUES

-- EASEMENTS --

TERMINATION

DESTRUCTION


Destruction of servient land, so long as it is not willful destruction by the owner.


LAND USE ISSUES

-- EASEMENTS --

TERMINATION

CONDEMNATION


Condemnation of the servient estate by eminent domain.


LAND USE ISSUES

-- EASEMENTS ---

TERMINATION

RELEASE


Release in writing by easement holder to servient estate.


LAND USE ISSUES

-- EASEMENTS --

TERMINATION

ABANDONMENT


Abandonment action: The easement holder demonstrates by physical action the intent to never use the easement again.  Words alone or mere nonuse will not be sufficient to constitute abandonment.


LAND USE ISSUES

-- EASEMENTS --

TERMINATION

MERGER DOCTRINE


The easement is extinguished when the title to both the dominant and servient parcels become vested in same person.


LAND USE ISSUES

-- EASEMENTS --

TERMINATION

PRESCRIPTION


An easement can be terminated by employing the principals of prescription where there is an adverse, continuous interruption of the easement for the statutory period.


LAND USE ISSUES

-- REAL COVENANTS --

DEFINITION



Real covenants are written promises between two parties that meet certain technical reqruiements, such that the promises "run with the land", meaning they are binding on future purchasers/holder of the land. The requirements are different depending on whether the benefit or burden of the covenant is running with the land (e.g., build single-family dwellings on the land only). The remedy for a breach of covenant is money damages.


LAND USE ISSUES

-- REAL COVENANTS --

BURDEN TO RUN WITH THE LAND REQUIREMENTS



Burden to "run with land" requirements:

a. Writing required between original parties/owners.
b. Intent that the promise apply to successors to the property.
c. Must "touch and concern" the land. For the srevient parcel, this means the promise restricts the use of the servient parcel in some way, thus decreasing the use or enjoyment, or requires the servient parcel to do something.
d. Horizontal and vertical privity is required for the burden to run.
  i. Horizontal privity refers to the privity between the original promising parties. They must have shared some interest in the land apart from the covenant itself (e.g., developer/purchaser, landlord/tenant).
   ii. Vertical privity requires that the successor now is the holder of the entire interest that the party making the covenant had (e.g., grantor/grantee, landlord/tenant, buyer/seller, mortgagor/mortgagee, assignor/assignee of lease).
e. Notice is required and can be actual, constructive (record), or inquiry notice.


LAND USE ISSUES

-- REAL COVENANTS --

BENEFIT TO "RUN WITH THE LAND" REQUIREMENTS



a. Writing required between original parties/owners.
b. Intent that the promise apply to successors to the property.
c. Must "touch and concern" the land. For the dominant parcel, this means the promise benefits the dominant parcel by increasing the use or enjoyment of the property.
d. Vertical privity is required, meaning the successor now is the holder of the entire interest that the party making the covenant had (e.g., grantor/grantee, landlord/tenant, or mortgagor/mortagee).
e. No horizontal privity or notice is required.


LAND USE ISSUES

-- REAL COVENANTS --

TERMINATION OR MODIFICATION



Termination or modification of covenants is allowed in the following circumstances:

a. Agreement of all parties in a sufficient writing.
b. Abandonment action: The covenant holder demonstrates by physcial action the intent  to abandon the covenant. Words alone or mere nonuse will not be sufficient to constitute abandonment.
c. Changed conditions Conditions have changed so significantly that the purpose of the covenant is impossible to accomplish.


LAND USE ISSUES

-- EQUITABLE SERVITUDES --

DEFINTION



Equitable servitudes (also called significant covenants) are restrictions on how land may be used. Equitable servitudes are similar to real covenants, but have no privity requirements. (e.g., property may be used for residential purposes only, or painted a particular shade of beige.) The remedy for breach of an equitable servitude is an injunction in equity.


LAND USE ISSUES

-- EQUITABLE SERVITUDES --

RUN WITH THE LAND



Equitable servitudes will "run with the land" and bind successors if:

a. Writing is typically required.
b. Intent that the promise apply to successors to the property.
c. Must "touch and concern" the land.
  1. Dominant parcel: the promise benefits the dominant parcel by increasing the use or enjoyment of the property. 
  2. Servient parcel: The promise restricts the use of the servient parcel in some way thus decresing the use or enjoyment, or requires the servient parcel to do something.
d. Notice is required and can be actual, constructive (record) or inquiry notice.
e. No horizontal or vertical privity is required. (e.g., Neighbors can have an enforceable equitable servitude.)


LAND USE ISSUES

-- EQUITABLE SERVITUDES --

MNEMONIC AND FACT TRIGGERS



Mnemonic: When Injunction is The Certain Need to remember the requirements for an equitable servitude to run with the land. WITN.

Fact Triggers:

- Prohibition against opening a store or restaurant or competing business within a specified area, such as within five miles.
- Prohibition against allowing another similar store to lease in the same shopping center.
- CCR's of a condo prohibiting certain conduct, such as an artist loft community only allowing on-premises sale of art made "in house"
- Covenant in an apartment lease, such as not to disturb other tenants.
- Subdivision owners must pay annual fee to one security company.


LAND USE ISSUES

-- EQUITABLE SERVITUDES --

IMPLIED RECIPROCAL SERVITUDE



Courts can imply a reciprocal equitable servitude if the original owner intended a "common plan or scheme" and the purchaser has notice of the scheme. The remedy for a breach is an injunction in equity.


LAND USE ISSUES

-- EQUITABLE SERVITUDES --

IMPLIED RECIPROCAL SERVITUDE

COMMON SCHEME OR PLAN


The common plan or scheme can be evidenced by a recorded plat, or a general pattern of restrictions, or an oral representation to early buyers (e.g., a new housing development where a K with a company regarding the provision of security services has been recorded.)


LAND USE ISSUES

-- EQUITABLE SERVITUDES --

IMPLIED RECIPROCAL SERVITUDE

NOTICE IS REQUIRED


Notice is required and can be actual, constructive (record), or inquiry notice. Inquiry notice can be provided by a visual inspection of the neighborhood that gives the appearance of conforming to certain standards.


LAND USE ISSUES

-- EQUITABLE SERVITUDES --

IMPLIED RECIPROCAL SERVITUDE

SOF


NO SOF writing is required.


LAND USE ISSUES

-- EQUITABLE SERVITUDES --

TERMINATION OR MODIFICATION



Termination or modification of equitable servitudes is allowed in the following circumstances:
a. Agreement of all parties in a sufficient writing.
b. Abandonment action: The equitable servitude holder demonstrates by physical action the intent to abandon the servitude. Words alone or mere nonuse will not be sufficient to constitute abandonment.
c. Changed conditions: Conditions that have changed so significantly that the purpose of the equitable servitude is impossible to accomplish.


LAND USE ISSUES

-- EQUITABLE SERVITUDES --

EXAM TIP



Real covenants and equitable servitudes are very similar. In an exam it is typically acceptable to analyze one of the other since the elements are mostly similar. However, it's best to note the differences, too, such as the remedy allowed under each.


LAND USE ISSUES

-- PROFIT --

DEFINITION



Profit (profit a prendre) entitles its holder to the right to enter the servient estate land and remove soil or a product of the land itself. A profit is similar to an easement (e.g., mining minerals, drilling for oil, removing timber, hunting, or fishing.)


LAND USE ISSUES

-- LICENSE --

DEFINITION



License is the mere right to use the licensor's land for some specific purpose, and it is revocable at the will of the licensor.

1. DIfference from easement: A license may be freely revoked.
2. Oral agreements produce a license, not an easement. However, it is possible the oral license created an easement by estoppel with detrimental reliance.


LAND USE ISSUES

-- WATER RIGHTS --

DRAINAGE OF SURFACE WATERS



A. Use of surface waters: An owner may use all he wants.

B. Getting rid of surface water has three different approaches:
  1. Common enemy: Owner may cast water onto neighbor's land.
  2. Civil Law rule: Owner has strict liability for interfering with natural flow.
  3. Reasonable use doctrine allows owner to act reasonably.


LAND USE ISSUES

-- WATER RIGHTS --

RIPARIAN RIGHTS



Waterfront streams and lakes that abut property)

a. Common law: Each riparian owner may use only as much water as he may put to beneficial use.

b. Prior appropriation doctrine: Used by some states, including CA. An owner (need not be riparian) must obtain a permit to use the water and priority of use is determined by permit date.


LAND USE ISSUES

-- WATER RIGHTS --

GROUND WATER



An owner may make reasonable use of ground water drawn from his property.


LAND USE ISSUES

-- RIGHT TO LATERAL AND SUBJACENT SUPPORT --



Every landowner has a right to receive necessary physical support from adjacent soil (lateral support) and underlying soil (subjacent support).

1. Lateral support: The right to lateral support (adjacent property) is absolute. An adjacent property owner using due care will still be liable.

2. Subjacent support arises when something is removed from below the surface of the land. The owner of the surface land has a right to not have the surface subside.