New Terms

Alienation -- the transfer of property or possession of lands from one person to another
Prescription -- acquisition of a personal right to use a way, waterway, by reason of
continuous usage. A manner of acquiring ownership of property by the effect of
time
Escheat -- a reversion of property to the state in consequence of a want of any individual
competent to inherit it.
Forfeiture -- a divestiture of specific property without compensation, imposes a loss by
the taking away of a preexisting valid right without compensation.
Occupancy -- taking possession of property and use of the same; said of tenant's use of
leased premises
Fee-simple -- "fee simple" standing alone create an absolute estate in devisee. Fee
Simple Absolute is an estate limited absolutely to a person and his or her heirs
and assigns forever without limitation.
Fee Simple Defeasible -- type of fee grant that ends upon the occurrence of an event (like
marrying or something).
Avulsion -- a sudden or perceptible loss or addition to land by the action of water, or a
sudden change in the bed or course of a stream. The removal of a considerable
quantity of soil of one woman's land and its deposit to another's, by water,
suddenly, or avulsively.
Replevin -- an action whereby the owner or person entitled to repossession of goods or
chattels may recover those goods or chattels from one who has wrongfully taken
(or detained) such goods or chattels.
Riparian -- waterside, related to the bank of a river or stream. Riparian land is the land
situated by the riverside conferring access and usage rights to the possessor of the
land.
Locus in Quo -- place in which (the object was found).
Trover -- recovery of damages against the wrongful detention and conversion of one's
goods by another.
Treasure Trove -- Doctrinal exception to embedded in soil/private place doctrines. Had
to be bouillon, roman coins. Doctrine of antiquity. Finder always prevailed.
Some states reject this doctrine (as there are no Roman coins or ancient artifacts
in this country) others change it around.
Bona Vacantia -- personal property whose title has reverted to the state in absence of any
competent heirs. Similar to escheat. "Vacant goods."
Requisition -- government seizure of property.
Affixation -- goods which are fixtures in a property, title transfers with title to property
(like toilets, sinks, etc.). Once items become affixed they are rightfully possessed
by the owner of the property.
Formedon -- a writ of right for claiming entailed property held by another
Quiet Title -- proceeding to establish P's title to land by compelling the adverse claimant
to establish claim or forever be estopped.
Disseisin -- the act of wrongfully depriving someone of the freehold possession of
property.
Privity -- mutuality of interest (buyer/seller, grantor/grantee, devisor/devisee)
Tacking -- join consecutive periods of possession by different persons to treat as one
 continuous possession.
Muniment -- document which evidences rights or privileges of a person, family (deed)
Boundaries by Acquiescence -- permanently fixing boundaries by agreement (between
neighbors).
Purchaser -- gives value to an object
Bona fide -- good faith
Voidable title -- valid until annulled. Capable of being declared void. Becomes good
when transferred to a BFP
Estoppel in pais/Equitable estoppel -- a doctrine created by equity courts whereupon if X
is making representations or misrepresentations and Y relies upon them to their
detriment, then X is estopped from denying or reneging on those representations.
Bailor -- owner or person with possessory right of property who entrusts the property to
another
Bailee -- the party to whom personal property is delivered.
Licensor -- one who authorizes entrance upon the land (gives a grant of license).
Licensee -- a person who has a privilege to enter upon land arising from the permission or
consent of the possessor of land.
License -- A personal privilege to do some particular act or series of acts on land without
possessing any estate or interest therein.
Conversion -- An unauthorized assumption and exercise of the right of ownership over
goods or personal chattels belonging to another, to the alteration of their
condition.
Tolling -- manner by which the clock is stopped (paused) on the statute of limitations
Statute of Limitations -- cuts off rights to sue as a plaintiff but not right to assert your
rights defensively. Can still bargain with a debt from a barred action. Some say
can still self-help.
Mesne -- intermediate
Intestate -- without will
Moiety: a 1/2 or portion of something
Hypothecation: pledging of something as security w/o delivery of title or possession
Redemption: reclaiming or regaining possession by paying a specific price
Deed poll -- general deed only signed by grantor, followed by a purchase contract.
Deed Indenture -- deed signed between grantor and grantee
Savings Clause: a clause at the end of a lease or deed which reads: "if anything in the
above is found invalid, it shall be struck out with the remainder left in tact."
Et vir/et ux -- husband/wife
Writ of fi. fa. -- ct. order which allows the sheriff to come in and hand over possession to
a creditor.
Socage tenure: free tenure, not involving a personal service (like praying or military) but
instead a payment of money.
Seignory -- the retained right to receive services (after the feudal landlord has transferred
possession to the tenant in demesne (possession).
Allodial -- land that is free of feudal services and incidents. Not subject to escheat, no
overlord.
Precatory:
Detinue: recovery of personal property from someone who came into possession of them
lawfully, but no longer with right (like if I loan A my book and then she refuses to give it
back. (vs. replevin -- which is for unlawful possession /trover -- damages not spec. perf.)
Fine: a collusive method of disentailing, similar to the common recovery, wherein A
covenants to transfer to B, then defaults, and A and B compromise, court approves it and
fee simple in B. B then transfers back to A. (Similar to straw conveyance).
Cestui que vie: the name for the measuring life of a life estate pur autre vie.
Special occupants: these are the inheritors of a life estate pur autre vie when the grantee
dies before the measuring life..
FINDING
Owner of property prevails over finder when:
Natural Object, Placed by Nature, Embedded in Soil. Owner of fee simple becomes
owner of nature as it enters his property. Example: Goddard v. .Winchell.
As with leaves that blow onto property, rocks that roll, a meteorite that falls and embeds
itself in the soil of O, belongs to O.
Lost Property: Generally, the finder of lost property will prevail as the possessor
against all but the true owner. Example: Armory v. Delamirie. There are, however,
exceptions:
Item found is in private place. Owner of place of finding can prevail over finder if
place is private place. Owner of private property has constructive possession of all
inside. Example: South Staffordshire Water v. Sharman where owner of property invites
(and can restrict) the presence of others, right of possession of gold rings found in soil
goes to the owner of the property.
Finder is in the service or agency of the Owner. If a woman finds a thing as the
servant or agent of another, she finds it not for herself but for that other. Example: South
Straffordshire Water v. Sharman where workers on private property find rings under soil,
owner of property, not finders, is entitled to possession.
Mislaid Property: .
Item is in a public place, intentionally placed. It is logically assumed that when a bag
is left (forgotten on a table, not lost on the ground) it is more likely for the true owner to
recall his steps to the l.i.q. and so right goes to the owner of the l.i.q. Example: McAvoy
v. Medina here handbag left on counter in barbershop is mislaid property and goes to the
owner of the l.i.q..
When the Property is Mislaid: In general, mislaid property goes to the owner of the
l.i.q. Whereas lost property may be retained by the finder, in some instances. Jury to
decide when enough time has passed to make mislaid property "lost" property. Example:
Schley v. Couch where a 4 year old glass jar full of money, buried in the soil discovered
by construction worker is not "lost" property but rather mislaid as passage of time is only
4 years and owner of property prevails.
Finder Prevails over the Owner of L.i.Q. when:
Lost Item is Found in a Public Place. A finder (non-trespasser) of an object prevails
over the owner of the property upon which floor the object is found if the property is
public in nature. Example: Bridges v. Hawkesworth where the finder of a bundle of
money on the floor in a shop prevails over the owner of the shop.
When the Finder is a Tenant (Owner not in Possession of Property). In landlord
tenant relationships, when there is something not attached (affixed), then the owner of the
"locus in quo" (he who has constructive possession) is the tenant. Owner has no
constructive possession of unaffixed items of which he is unaware. Example: Hannah v.
Peel holding that where owner does not occupy the house, title to brooch found in a
crevice of the window treatment by the tenant goes to the tenant.
Title By Occupancy:
When the property is abandoned (shipwreck). Where personal property has been
abandoned, title will rest with the first person to take possession (as opposed to the first
finder). Possession means control over the object or an immediate intent and means to
take control. Example: Eads v. Brazelton where affixing a buoy without showing the
means to actually possess the property is not enough to win title by occupancy.
Finder's Right over True Owner/ Affixation:
When finder, knowing no true owner, affixes property to his own. Unless the affixor
knows who the true owner is, once property is affixed, the rights of the true owner are cut
off. Example: Hypo in class. Find toilet which probably fell off a truck. Install it. Once
water is running through it, it is affixed and I have right over the truck driver should he
return.

BAILMENTS:

Bailment for hire by implication/expectation of parties. The expectations of the

parties and their conduct can cause differing legal relationships to arise. Example: Allen
v. Hyatt-Regency Nashville Hotel where though parking receipt said otherwise, a
commercial, enclosed, monitored and attended garage gives rise to the expectation of a
bailment (and assumed control over the property) and a duty of reasonable care.

Varying Duties of Care

Traditional concepts. A bailment for the benefit of the bailee (i.e. pay a fee) gave rise to
an extraordinary duty of care/strict liability. Bailments for mutual benefit to an average
duty of care. Bailments for sole benefit of bailor to liability only for gross negligence
(watering someone's plants for free).

Prima Facie Case/Prevailing Common Law: In all actions by a bailor against a bailee
for loss or damage to personal property, proof by the bailor that the property was not
delivered or delivered in worse condition shall constitute prima facie evidence that the
bailee was negligent, provided the loss or damage was not due to the inherent nature of
the property itself. If bailee offers evidence to the contrary, then the burden shifts to the
bailor to show actual negligence.

Voluntary Bailee/Involuntary Bailee: The involuntary bailee, as long as his lack of

volition continues, is not under the slightest duty of care for or guard of the subject of the
bailment, and cannot be held for even gross negligence. As soon as involuntary bailee
exercises any dominion over the bailed thing, he becomes responsible for a reasonable
duty of care, as a voluntary bailee. Example: Cowen v. Pressprich where a broker who
is delivered bonds not belonging to him then turns them over to another is held to be a
bailee and liable for their conversion.
BONA FIDE PURCHASER
Generally. The BFP cuts off rights to "void" a voidable title by the true owner. The
definition of a BFP remains the same throughout the UCC.

Entrusting goods to merchants. Common Law: an owner gives up title as against a

BFP for value where the owner has clothed the vendor with possession and other indicia
of title. UCC §2-403(2): Any entrusting of possession of goods to a merchant who deals
in goods of that kind gives him power to transfer all rights of the entruster to a buyer in
the ordinary course of business. This gets rid of common-law requirement of indicia of
title but adds in "good faith" and an industry standard of "course of business." Example:
Porter v. Wertz where he who is entrusted is not a merchant nor is the good sold
according to the norms of the industry, it is questionable whether the purchase was made
in good faith (not a BFP) and the rights of the purchaser are not protected as against the
true owner.

Statutory Provisions. The UCC is considered a general provision, which is "trumped"

by more specific statutory provision. So compliance with UCC will not always protect a
BFP if there exist specific statutory provisions which must also be complied with.
Example: Sheridan Suzuki v. Caruso where, under §2-403(1) BFP has purchased from
one with voidable title (be it by bounced check) and gets good title, BUT under a specific
title act, no vehicle may be transferred without a cleared (perfected) title. So BFP is not
protected from third parties.

UNAUTHORIZED POSSESSION

When True Owner is not Known. When a good faith (or even bad faith) converter
takes property, and another, with no better claim, then takes it from her, she may sue for
trover. Example: Anderson v. Gouldberg where P took logs from a lot, D then stole those
logs from P. Held: one who takes property from the possession of another can only rebut
this presumption by showing superior title in himself or connecting himself to someone
who has. Any other rule would lead to an endless series of unlawful seizures and
reprisals.

Avoiding Double Liability/Armory Revisited. Problem arises when T1 is rewarded

damages from T2 and then Owner comes and sues T2 as well for damages. One way of
dealing with this is the Armory v. Delamire, reward full damages to T1 so as to release
T2 from the picture. True owner left to remedy against T1 only. Courts have
misunderstood this. Example: Russell v. Hill (NC). Here, no damages were awarded to
T1 as it was feared that if the true owner were to bring suit, T2 would be caught with 2X
liability. T1 is essentially cut out of the picture, lost possession and remedies. Will
award damages if good title could be transferred to T2 thereupon -- protecting him from
further suit.

ADVERSE POSSESSION
Generally: P loses in the passage of time both suit to recover possession (replevy) and
suit to recover damages. It is not necessary that the true owner know that s/he owns the
property in question. AP can be tacked, if there is privity. No privity among thieves.
There are three varying approaches.

Rule favorable to a thief:

Older Approach: The statute of limitations would begin running at the moment of the
theft. Example: O'Keefe v. Snyder the trial court ruled that the moment the artwork was
stolen (or discovered to be missing) the clock begins.

Discovery Rule:
Diligence Required: This is the N.Y. rule. The clock for adverse possession does not
start ticking until it is discovered who has possession of the chattel. The purpose of this
is for the plaintiff to know whom to sue. There is a requirement that the owner be
diligent in learning who has it or such diligence will be imputed (i.e. at which point she
should have known) and the clock will begin

Adverse Possession Rule:

Generally: when possession is open and notorious -- and the true owner should
reasonably be on notice that chattel is being adversely possessed, the clock will start.
Example: O'Keefe v. Snyder. The clock should have begun ticking at whatever point the
chattel came out into the public under adverse possession (showed in a gallery).
Intermediate court approach.
Tolling: There is tolling at whatever point the chattel becomes concealed or claim
concealed by fraud (don't worry, I'll give it back, or, No, I don't have it). When one of
the elements of adverse possession is missing (as it is not open nor hostile) then tolling
occurs.

Adverse Possession of Real Property

Allowing Public on Land/Exclusive Possession: As long as the public knows that this
is an invitation, not a surrendering of land to public, then this does not defeat the adverse
possession. Example: Snowball v. Pope. Here, letting children skate on a frozen over
section of property does not preclude exclusive possession.
Behaving Like an Owner/Part-Time Occupancy: As long as one true owner would so
act, than this behaviour is reasonable and does not preclude adverse possession.
Possession of land, under adverse possession, must be noticeable to the neighbors, that is
all. Such possession that would alert the true owner. Example: Howard v. Kunto where
Kunto was summer possessor on lake (summer resort area) living on land with a faulty
deed but found to be like any other owner in vicinity and to have established A.P.

Objective/Subjective Intention
Mistake as to Claim of Right: Some courts have held that when one is mistaken as to
their claim of right, i.e. would not have done so if they had known the title was bad, then
the possession is not openly hostile. This is a subjective intention test. Iowa courts use
this.
Objective: The Washington courts, and the majority, use the objective test which
imputes the "hostility" requirement, even when under a mistaken intention. Only
requirement is that you not be under license/permission to be on property. Example:
Howard v. Kunto. Where though Kunto admitted to being mistaken about deed, AP was
allowed to stand, as fact remained that he was not under license to be on property.
Bona Fide Disputes: There must be a bona fide dispute over boundaries to begin the
clock on adverse possession. Cannot agree to set boundary at one spot and then claim
A.P. when boundary found to be different.
Tacking: A series of possessors may tack their possessions in order to satisfy the statute
of limitations and adverse possession as long as they were in privity. Example: Howard
v. Kunto. As Kunto was a purchaser of previous deed to land, grantor/grantee,
seller/buyer, then the years spent by previous adverse possessor tack on to Kunto's (even
though only there one year) to establish a claim of adverse possession.

Elements of Adverse Possession of Real Property:

Color of Title: If with color of title, AP is entitled to "short term" statute, usually 6 years
or so. Color of title may be a deed which is incorrect (but unknown by the possessor) or
a forged signature on a will, etc. Constructive possession of all land possessed under
color of title. Courts are strict to examine color of title -- if defective, then no A.P.
Example: Mercer v. Wayman where a misnomer in the land grant was not effective to
pass possession on to defendants.
No color of title: If no color of title, then AP must wait for long-term statute of about 20
years to pass. No constructive possession.
Open and Hostile: Possession must be open and hostile. Example: Mercer v. Wayman
here simply farming the land while children were under 21 was not deemed open and
hostile. Must be adverse to someone's claim of right. If I have a future interest in a land
(or are am infant and so cannot possess until 21) then I have no claim, can't sue, and no
possession can be adverse. Statute tolls until I am able (disability lifts) to sue.
Changing Permission to Hostility: If under lease or agreement, cannot adversely
possess. Only manner to do so is to write a letter and declare claim of right, outside of
the lease. Must put owner on notice that you intend to adversely possess.
Disability: Disabilities such as insanity, imprisonment or infancy cannot tack and do
not, therefore toll. If I turn 21, and then one year later am imprisoned, I still have to try
and quiet title before statute runs.
Minerals Underground: Most statutes will require a payment of taxes and then
possession (extraction of the minerals) to show adverse possession when mineral estate is
severed from the surface estate. Example: Failoni v. Chicago Railway. Failoni never
paid taxes on the minerals (never had them assessed) and so could not show A.P. as
statute required.

IMPROVEMENTS TO PROPERTY
Generally: If, by good faith mistake or error I improve property to a considerable extent
I will be able to keep the property, less the value of the raw materials taken from the true
owner. Other remedies include forcing the true owner to pay for the improvements.
When Improvement is Great: When the improvement is so great as to consume the
value of the raw material, rendering it valueless in comparison to the completed item.
Examples being the wood used to make a violin, or a beam in a house. The value of the
beam is nothing compared to that of the house. Improver gets to keep object or recover
for improvement made. Old test: When object has become something of a wholly
different species (grapes  wine). New test: When object has taken on a value so great
as to render an injustice in return to true owner. Example: Wetherbee v. Green where
plaintiff from wood mistakenly chopped down made valuable hoops, 20-30X the value of
the raw timber, wins in trover.
When improvement is trivial: Generally, if improvement only adds value by two fold,
the loss will go to the improver. Example: Isle Royal Mining Co. v. Hertin. Where the
cutting of lumber only increased value by 2X (by bestowing labor) the improver will not
be able to recover in quantum meruit.
Equitable Estoppel: If you know that the improvement is going on, and say nothing,
you are then estopped from refusing to pay for it.

ESTATES:

Introduction: A little feudal history. Feudal system began with King William of
Normandy. He seized all of the land and only redistributed it to those who would pay
him, primarily with their loyalty (and knights). He remained always the only owner.
Every one below him, the feudal lord, would have possession. These were freehold
estates. The feudal lord would then, in exchange for a service (perhaps providing knights
for defense) would "subinfeudate" and create an estate under him. He is now the
overlord or enfeoffor and the lower lord is an enfeofee. This could go on. Any
intermediate lord was called a mesne lord. Land passed through inheritance,
primogeniture. Anyone taking land under such circumstances had to pay a relief. If you
are too young to take the estate, the lord who you hold it of will reap all of its rewards
until you reach majority. The lord may also decide who it is you marry. This is called
wardship. However, if you are given land as a grantee, not an heir, you did not have to
pay anything. In that instance, there would be a ceremony called a livery of seisen. This
ceremony was the passing of a clod or twig (as folks were often illiterate) before
witnesses to pass over not just possession but seisen, which is the rights of the owner of a
freehold estate (in or not in possession -- a mystical thing), they may accompany the
possession itself. If you die with no heirs (no sons) then the land escheats back to the
overlord. A widow may ask for dower which is to protest the escheat and be provided
for until her death.
Problems with subinfeudation: If I totally subinfeudated my total estate to my son for
the payment of one rose at midsummer, and I died, the possessory rights pass to son, any
rights I had against my son go to the overlord. However, if all that was, was a rose at
midsummer then the overlord loses out -- because cannot get whatever I was paying to
him as well (maybe ten chickens a year).
Quia Emptores: put an end to subinfeudation in the 13th century. Now, if you
subinfeudate, you also split up, or pass along, the duties owed the overlord. Allowed
alienability without permission from overlord, but, could no longer create mesne lords --
no additional manors allowed.
Escheat: Law by which once an estate ends (say, if A dies without heirs) the estate
reverts back to the overlord or King by way of escheat. Modern doctrine applies this as a
reversion to the State. Example: Piece of property owned by A, who dies intestate and
without known heirs. County takes the land and the State wants it to pay taxes,
inheritance taxes on it. No taxes needed as this is a reversion -- as if the original owner
were the State and no sense in requiring an original owner to pay taxes on his own land.
In re O'Connor (Nebraska).
Alloidal: Other states consider their ownership of land as alloidal and only as an
intestate successor to property, so they would have to pay taxes.

Freehold Estates

Fee Simple Absolute: Archetypal fee simple: O to A and his heirs. A is considered the
word of purchase. That is the one who has a real interest in the estate. And his heirs are
words of limitation. They mean  in fee simple absolute, which is to say total and
absolute ownership as well as alienability. Primogeniture assumed one heir only (eldest
son). And his heirs, then, necessarily, meant for indefinite ownership. Creates no
interest in the heirs themselves.
+ Intestacy: Land is distributed to heirs via statutory provision. Usually by descendancy
-- 1/2 to wife, rest to issue, per stirpes. If no kids, no wife, then goes up the lines of next
common ancestry (parents) and then down to their statutory descendants (your bros. and
sis'). If none of these exist, then up two levels to grandparents and then down through
their stirps (which are your aunts and uncles). This is called gradualism.
+ Common Law and Olde English law --used to be that you had to write "and his heirs"
to convey a fee simple absolute.
+ Modern statutes: Now, O to A in f.s.a. is enough. Presumption is that a deed or will
will pass the largest estate that grantor owned. O to A means in f.s.a.
+ South Carolina still requires "and his heirs" in deeds only. Not in wills. Example:
Title to land grant did not technically read "and his heirs" which was enough to raise
doubt as to whether it was a marketable title. Cole v. Steinlauf.

Life estate: O to A for life. Reversionary interest in O (once A dies). A life estate is
inheritable, but only for as long as the measuring life is alive.
+ Life estate pur autre vie: O to A for life, A to B. B has the estate only for as long as
A lives. Then reversion back to O. B holds for A's life.
+ Lucky Vagrant: If B dies first, olde English law would say that whoever then
occupies the land first would get it.
+ Special Occupant: Now, it is written O to A for life, A to B and his heirs. If B dies
first, heirs get it, until A (the measuring life) expires. Or O to A for life, A to B and then
to Duke. Duke is the special occupant in this instance.

Ambiguities in Conveyance/Deeds: Resolved according to maxims of construction. In

this order:
+ Four Corners: look for the language within the deed which indicates one way or the
other or which rebuts the presumptions below.
+ In favor of fee simple: Unclear deeds such as O to A as long as she remain unmarried,
if she marry, to A and her two sisters per capita in f.s. Unclear whether O to A for life,
or O to A in fee simple determinable. Statutory provision: in favor of fee simple (in this
case determinable). As long as A remains unmarried until death, may consider her title in
estate f.s.a. Real name of A's estate is then f.s.determinable subject to executory interest,
1/3 in f.s.a. Lewis v. Searles.
+Against partial intestacy: If "O to Hattie so long as unmarried, if married then to
Hattie and 2 sisters in fee simple" meant a life estate to A, there would be an ambiguity as
to what would happen to the estate once Hattie died. This is a complete intestacy as far
as death (when Hattie dies) but only considered a partial intestacy as long as Hattie is
alive, the will has effect. Lewis v. Searles
+ Look to Intent of Testator: Testator usually intends to convey the largest estate
possible. If conveyance to cover unmarried female children, presumption is that she will
get no extra estate from husband and needs help from parents. Nonsensical to leave a
lesser estate if unmarried and a greater one if married. (Again, above case, if only life
estate in Hattie, this is a lesser estate then what comes in next clause which is a 1/3 estate
in fee simple if married).
+ Contra Public Policy: if it seems like the limitation is whimsical or capricious, the
entire limitation is striken, leaving the rest of the deed in tact. Example: O to A in fee
simple, as long as she not marry a fat man. This is silly. So, the whole "as long as"
clause is striken out and A gets a f.s.a.
+ Doctrine Against Restraints on Alienation: Cannot say to A but A may not reconvey
or mortgage. These restraints are contra public policy and are simply stricken out.
+Law Abhors Forfeiture: this is particularly true with ambiguous conditions subsequent
or determinable fees. Mere intention for use is not enough to create a determ. estate.
Waste: O to A for life, then to B. It is the duty of the life tenant to keep the property
subject to the life estate in repair so as to preserve the property and prevent decay. If the
life tenant abuses the property, B has remedies at law, both equitable (injunction to stop
waste or keep it from happening) as well as legal (sue for damages). Three types of
waste.
+ Active waste: this is waste that is voluntary and grossly negligent.
+ Permissive waste: this is waste that occurs from negligence, like not keeping the
property up to par. Statute of L does not commence until the termination of the life
estate.
+ Ameliorative: this is a change to the property, that improves its value. Cannot sue for
this.
+ Estoppel and laches: are not defense to a suit for waste. You are only barred by laches
if the delay in action actually worked to your disadvantage. No disadvantage with
permissive waste. Example: O to A for life, then to daughter B and grandson C. A then
let property deteriorate. Upon death B & C bring suit (to her estate) for damages to
property. They are not barred from suit by estoppel or laches because the delay did not
act to put A at disadvantage. Moore v. Philips

DEFEASIBLE ESTATES:
Fee Simple Determinable:
Construction: O to A so long as X event does/does not happen. This is enough in most
states but NC. NC wants to see O to A so long as X, with possibility of reverter in O.
Inheritability: To ensure inheritability of possibility of reverter, should say O to A so
long as X, with possibility of reverter in O and his heirs.
What it is: This is a fee simple that automatically reverts upon the occurrence of an
event. There need be no proceeding. The magic words to create a fee simple
determinable are: so long as, until, during,and if not, automatic reversion back to. The
interest that O retains is called a "possibility of reverter." Example: O to A for school
purposes only. There is no magic word here and mere motive is not enough. Court
found that there was no possibility of reverter expressed and gave f.s.a. Roberts v.
Rhodes.
+Court abhors a forfeiture: if there is ambiguity, it will be resolved in favor of the
grantee to avoid a forfeiture of the estate. "The mere statement of the purposes of
conveyance will not limit the extent of the grant."
+Ways out of a Forfeiture: Hypo: O to A so long as A allows O access to the
backyard. A blocks access. Court will call this an easement instead of a defeasance to
avoid forfeiture. Hypo: O to A so long as used for residential purposes only. Court will
call this a restrictive covenant. This cannot be forfeited without court proceedings.
+Adverse Possession: if on a fee simple determinable and the terminating event occurs,
but you (openly) remain in possession, may start the clock (the long term clock -- 21
years) ticking for adverse possession. Not the case with f.s. subject to cond. subs.

Fee Simple Subject to Condition Subsequent:

Construction: O to A but if X event happens, right of re-entry in O. Must be spelled out.
Inheritability: Spell out -- O to A subject to condition subsequent (of X) with right to
re-enter in O and his heirs.
What it is: This is a fee simple in which O retains the power of termination upon a
defeasing event, should she chose to exercise it. The right of O is called "right of entry."
Magic words: but if. Example: O to A with the condition that A allow O to build a boat
house, O retains right to reenter. Many years later, O tries to build boathouse, city (A)
claims it is impracticable -- waterlevel dropped and city claimed ownership of newly
exposed shoreline, so claimed no new boathouse on their new property. However, this
was an avulsive change, not by accretion, and so City gets no property rights thereof. No
impractability. Damages awarded (not land -- b/c land is now a public highway --
eminent domain). Martin v. City of Seattle.
+Estoppel: if defeasing event occurs, O must exercise right of re-entry within a
reasonable time.
Statute of Limitations: Will not run against a condition subsequent, unless the event is
actually the violation of a restrictive covenant.
+Restrictive Covenants: are negative in nature -- cannot do X, Y or Z. Example: O to A
subject to the condition that A build a lavatory in park with possibility of re-entry in O
and heirs. This is a positive (construction) event. If A refuses to, then this is not a
restrictive covenant but rather a clear defeasance. Statute of Limitations will bar a
plaintiff's action against a restrictive covenant. Johnson v. City of Wheat Ridge.

Special Circumstances:
Change of Circumstances: Some states, especially with construction, will allow for a
change of circumstances to knock out the defeasance clause. Example: land donated as
long as used for city hall and park. City hall building knocked down and court knocked
out part of the defeasance clause. Still had to remain a park, though. City of Caspar
(Wyoming).
Inverse Condemnation: State or county cannot condemn possibility of reverter (if they
are the ones with the f.s.d.) in order to turn a determinable estate into a fee simple
absolute. Must pay damages. Example: County tried to "condemn" property to force it
into county hands and keep the owner from his possibility of reverter. Made known that
they had plans to commit the defeasing action (zone it for commercial -- not park). If had
no intention to commit the defeasing action, then would have been able to do this. Must
pay damages. Value of F.S.A. -- F.S.D. = damages. Lecco Gas v. Nueces County
Mixing Magic: If deed reads both "shall" and "but if" -- the magic words for a
possibility of reverter as well as a condition subsequent, the constructional preference is
for a condition subsequent (in theory, a greater estate).

FEE TAIL ESTATES:

Generally: O to A for life then to A's bodily issue in fee tail. This means that the land
can never leave the direct line of descent. Should the line end, land goes to a special
occupant, if named, or reverts back to O, (or the State).
Many States: do not recognize the fee tail. What they do is one of several options. 1)
Convert the fee tail into an f.s.a. upon the birth of the next generation (fee simple
conditional). 2) just call it a fee simple absolute and get rid of the tail altogether 3) life
estate and it goes to the next generation in f.s.a.
Delaware: allows the fee tail but says it is subject to disentailing via straw conveyance.
Disentailment: History: Used to be that to disentail a fee tail, B, the tenant-in-tail would
sell it to C. C would try and sue B, saying this is a bad title, and B would say, I got it
from X, the poorly town crier. There would be a judgment against X, which was
worthless as X had nothing. Court would grant land to C (like an innocent purchaser).
Land disentailed. Now this works by way of straw conveyance. I convey to my friend,
who conveys it back to me, fee tail is gone! She is called the straw conveyor.
Example: A has land in fee tail (to A for life and her bodily issue should she have any, if
not, to C and his heirs). A goes by way of straw conveyance to disentail (has no kids)
and sells land to another. C contests. Court claims "lawful issue of her own body" is
indefinite failure of issue -- making it a fee tail and upholds straw conveyance. Caccamo
v. Banning (Delaware 1950).
Indefinite Failure of Issue: If the wording appears to mean that the land is to pass from
issue to issue, generation to generation and if at generation 5 there is no issue, then the
estate reverts or goes to remainderman. This is what a fee tail commonly is. Example:
O to A for life, then to A's bodily issue, if they die with no issue, to C and his heirs.
Indefinite would read the they to be indefinite, referring to each generation in the tail.
Definite Failure of Issue: If the wording appears to mean that the only requirement is
that A pass to A's child, with no further generational pass, then if A has no kids, it is a
definite failure of issue. This is not a fee tail. Example: to A for life, then to A's bodily
issue, if she have none, then to C and his heirs. The she here means A only.
Fee simple conditional -- This is a fee simple that requires that one bodily issue be born.
Once it is, A may either straw convey to vest in f.s.a. or simply convey to third party in
f.s.a. If A does not, and A then dies, A's child must wait until she has a child to do the
same thing. Every-other-generation.

FUTURE INTERESTS
Vested v. Contingent Remainders: These are essentially the same things, but usually
worded differently. The only reason to look out for the difference and identify a vested
vs. a contingent remainder is if in state which recognizes the doctrine of destructability.
Must look at the gift clause. Remainders never "divest" an estate. They only come in to
play after the natural termination of a life estate.

Gift clause: where it is that B is getting the property. O to A for life, then to B in fee
simple. The red is the gift clause. The gift clause is almost always within the commas --
If O to A for life, then to B should she marry in fee simple, if not to C.

How to Discern a vested remainder: A vested remainder uses the magic words "but if"
and the condition always comes after the gift clause. O to A for life, then to B, but if B
should marry, to A's heirs. The gift clause is in red. The condition is subsequent to the
gift clause. Vested remaindermen are ascertainable people at the time the instrument was
drafted. The vested remainder is subject to divestment if the condition is (is not) met. (If
B marries, her vested remainder will be divested by A's heirs' executory interest). Vested
remainders are alienable and able to be taken by creditors. Example: O to A for life,
then to A's lawful children, if any lawful heirs are deceased then to their lawful heirs per
stirpes. The children of A each have a vested remainder subject to complete divestment
should they die -- as the land must pass to their children. [Also subject to partial
divestment as the class of takers (A's children) can grow if A has any more children].
Creditor's may, then, take the child's remainder. Kost v. Foster (Illinois).

How to Discern a Contingent Remainder: Contingent remainders have the condition

in the gift clause. O to A for life, then to B if she marries. At the time of the expiration
of the life estate, this must be ascertainable. Until then, it is contingent. Once B marries,
and A is still alive, her interest becomes vested. The condition may also come as
precedent to the gift clause. O to A for life, if B is married, to B. B's interest is a
contingent remainder. Widow implies surviving A, necessarily a contingent remainder
(not ascertainable at time of drafting). O to A for life, then to B's heirs. If B is still alive,
don't know who the heirs are. Their interest is not vested until B dies.

Destructability of Contingent Remainders: Only Florida recognizes this doctrine,

although if you go back far enough you will find deeds affected by it nationwide.
Destroyed by Gap: If the supporting estate terminates, and there is no one to give it to,
the contingent remainder is destroyed. O to A for life, then to B's heirs. If A dies, and B
is still alive, then there is no where to leave the estate to (seisin in abeyance). Court
would knock out the contingent remainder and leave a reversion in O.
Destroyed by Merger: If you try and merge the supporting life estate with the
reversionary interest, to knock out the contingency, by giving in a separate instrument the
reversionary interest. O to A for life, then to A's surviving issue if she have any. Then
separate transaction, O to A in fee simple absolute. This would merge and A's issue
would lose all of their rights (as they had none vested until they were surviving).
Example: Parents give each daughter a deed to estate with it passing to their surviving
(contingent remainder!) children, if none, then in fee simple absolute. Parents try and
then write new deeds giving absolute title. Daughters do have children but sell the land --
saying the children's contingent remainder was destroyed by subsequent deeds and they
had f.s.a.). Courts won’t allow it, do not recognize doctrine, and say the children have a
contingent remainder which blocked any merger by way of new deed conveyance and so
the sale is not valid. Abo v. Amstutz (New Mexico 1979).

The Rule in Shelley's Case

This rule basically is a way of making land more easily alienable. History was to avoid
paying feudal tax -- if could keep land from passing by way of limitation (and his heirs)
but instead by way of purchase -- inter vivos deed, did not have to pay the tax. The rule
employs two parts, Shelley, and a merger. It only applies to freehold estates. No
personal property, no leaseholds.
Definition: When a person takes an estate of freehold, legally or equitably, under a deed,
will or other writing, and in the same instrument, there is a limitation by way of
remainder, of an interest of the same equitable (or legal -- must be parallel) as a limitation
"to his heirs" or "heirs of his body" this operates to create a fee simple absolute or fee tail
to the devisee. O to A for life, remainder to A's heirs.
Shelley  remainder to A's heirs = remainder to A (heirs get nothin')
Merger  A for life + remainder to A = A in f.s.a.
Cannot merge: when there is an intervening estate. Example: O to A for life, then to B
for life, remainder to A's heirs. Shelley  remainder to A's heirs = remainder to A.
Merger is blocked by B's vested interest. So O to A for life, then to B for life, remainder
to A.
Expression must be very clear: Shelley's rule will apply to "heirs" "bodily heirs" and,
at times, "bodily issue." Important to use expressions that will not be "shelleyized" if you
intend to create an interest in your grandchildren, for instance.
Example: O to Wife for life, then to Son for life, then to the heirs of his body in fee
simple. Wife dies, land goes to Son. He dies intestate and so land goes to his wife,
Eunice. His brothers contest (as they are the "heirs of his body -- blood relation!).
Shelley's rule applies. "Heirs of his body" is read to mean remainder in Son. Two then
merge, giving Son a f.s.a. which goes by law to his wife upon intestacy. Sybert v. Sybert.

Doctrine of Worthier Title:

The "worthier title" is that it is worthier to take a title by descent -- (always intestacy b/c
no wills) then by being named in an inter vivos deed as a purchaser. This was a way of
preventing feudal (and modern estate) tax evasion. (Had to pay taxes when re-
transferred, didn't when land kept passing as per the original deed.)
Definition: When an owner of a fee simple attempts to create a life estate with a
remainder to his own heirs, the remainder is void. The grantor keeps a reversion instead.
A to B for life, remainder to A's heirs  A to B for life (reversion in fee simple to A).
A's heirs are no longer able to take (as purchasers) and now can only get estate via
inheritance (if intestacy). Aids in alienability, A can leave to whomever.
Example: Dad to Son A and Son A's children (should he have any). If Son A dies with
no children, reverter to Dad or Dad's heirs. Dad's heirs are Son A, B and C. Father dies
intestate. Then Son A dies with no children. Leaves his land to X. C & B contest,
saying that as A had no children, his grant was to pass to them -- as they had a remainder
("or Dad's heirs"). No. Doctrine of worthier title would say that Father retained total
reversionary interest. When he died, intestate, the reversionary interest was passed by
limitation to each son. Son A thereby obtained a 1/3 interest in the reversion, which he
could devise to X. Braswell v. Braswell (Virginia).

The Statute of Uses/Executory Interests

History: O could not convey an estate to anyone in futuro. Could only do O to A in fee
simple (or whatever). To get around this, O began granting estates "for use" -- O to X for
the use of Y and his heirs. X is the feoffee to uses. Y is the cestui que use. X would be
one (or many) people acting as trustees. This was primarily important for people like
monks who could not own property (vow of poverty) but needed to have the rights to a
piece of land (for the monastery). O could then grant the land to X for the use of Y
(forever). Seisin was key here. Taxes were paid whenever seisin passed hands. In a use,
the seisin (or legal title) went to X and the equitable estate (the use of the estate) went to
Y. Then Y could die and the equitable estate would pass along to Y's heirs, no tax paid.
If the feoffee died, he could be replaced by another. No taxes paid. King caught on to
this and so passed the Statute of Uses.
Before the Statute of Uses: Had to get into equity court to be able to convey a deed
with executory interests or that attempted to convey without livery of seisin. Only way
into equity court was to raise a use. Would want into court, for example, if the use was
being abused (if the trustee was not allowing the use -- you would need to enforce your
rights somehow). Otherwise do a livery of seisin or lease and release.
Raising a Use: In order to get into equity, you had to "raise a use" to the land.
Otherwise, simply giving over the property would be ineffective.
Bargain and Sale: This was a way that the equity court would recognize a deed passed
without manual passing (would find it unjust if money was paid and no deed was passed).
O bargains and sells for (a consideration) Blackacre to A and his heirs.
Covenant to Stand Seised: Way of passing deed to a relative without purchase, without
livery of seisin. O covenant to stand seised for sister A and her heirs. Only works for
relatives.
Enfeoff: The traditional, O transfers seisin by enfeoffment to X for the use of A and his
heirs.
Statute of Uses: Statute of uses "executes" uses. This was a way of dealing with all of
the crazed estates in equity court. They are simply crossed out of the deed. O to X for
the use of Y and his heirs  O to Y and his heirs. This way, the taxes could not be
evaded (as legal title would have to pass to A's heirs -- the feudal incident).
Use on a Use -- The statute of uses only executes the first use -- O to A for the use of B
for the use of C. A's interest will disappear and legal title will go to B, equitable to C.
Modern Trusts: Active Uses: In order to avoid the execution of a use -- if you really
wanted to set up a use -- had to have it so the use was active, that is, so the feoffee to uses
actually had a duty to block the execution. O to X and heirs to manage the property and
pay income to A for life, on A's death to convey to A's children. X has the duty of
managing the property in trust for the beneficiaries, A and her children.
Executory Interests: No way, before the Statute of Uses, to convey a legal estate in
futuro. Could though if inserted (raised) a use. So: O to X for the use of A, if A marries
B. This was a way of guaranteeing that a daughter had her dowry but didn't get it until
she married. Once the use was executed, post Statute of Uses, became O to A if she
marries.
Shifting Executory Interests: Here, the estate shifts from one grantee to another, upon a
divesting event. O to A in fee simple but if B should marry, to B in f.s.a. B has a shifting
executory interest that divests A of a life estate.
Springing Executory Interest: The estate goes from one grantee, back to the grantor and
then to another grantee -- the other grantee's interest springing from the grantor. O to A
for life, then one day later, to B in f.s.a. B's interest is springing because for that one day,
the estate was in the grantor. This is one way of avoiding the destructibility doctrine -- B
is not a remainderman but rather a springing executory interest that can not be destroyed
by merger.
After a Defeasance: Interests in a grantee after a defeasance are not remainder (b/c they
divest AND because they follow a fee simple grant) but are not shifting or springing -- as
the 1st grantee ends it herself. It is simply an executory interest. O to A in fee simple as
long as no liquor sold, then to B. Of course, there are R.A.P. concerns with this.
Not destructible: Executory interests are not destructible by the doctrine of
desctructibility. Example: O to Frank and his heirs, but if F dies with wife and children,
to widow for life, remainder to surviving children, and if none survive him, title back to
grantor. Then grantor deeds over rest of interest to F. Was children's interest destroyed
by this? No. If Frank had taken a life estate, then his wife and children's interest would
have been contingent remainders (survival) but he took a fee simple determinable (b/c of
constructional preference) and so they must have had executory interests, which are not
destructible. If ambiguity as to what kind of estate -- look to all possibilities, if all death
possibilities are covered then it is a life estate, if not, a fee simple (constructional
preference for a fee simple!).
Rule Against Perpetuities
Generally: Created to put an end to estates which would devolve along indefinite family
lines within a deed (could always die intestate and property will go to issue). Put an end
to many fee tails. The principal guardian against the control of the living by the dead
hand. Executory interests and contingent remainders are subject to this. Vested
remainders and reverters are not.
Gray's Definition: 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 (instrument).
Could it Test: Check to see if there is any situation would result in a period over 21
years after a life in being before vesting in exec. or other grantee. If so, invalid. Check
out all the hypotheticals.
Lives in Being: search for the relevant lives. They must be persons alive either at the
administration of an estate (will) or at the time of the deed making. Cannot be a child
later born after the writing of the instrument. Example: O to A for life, remainder to A's
first child who graduates from law school. If A has no children at time of instrument, she
is the measuring life. Could easily be more than 21 years after her death that one of her
children graduates from law school. The remainder is void. Example2: Reppy says
$1000 to be divided among all members of his property class to pass the bar. The class is
already a "closed class" all lives are in being. If anyone passes the bar, it must be before
they die, so this is a good gift.
Class Gifts: The Rule nullifies gifts which are made to a class which is subject to open.
Example: O to my children for life then to those of my grandchildren and their heirs who
are living when the childrens' life estate ends. Grandchildren have contingent remainder.
If this is a deed the measuring lives is that of the children who are alive at the time of the
deed. However, if O has a child 21 years later, who outlives all the others by more than
21 years, the "childrens' estate" won’t end for more than 21 years after the expiration of
the relevant life. The grandchildren's remainder will not vest for more than 21 years after
relevant lives, and so will be void. Another problem -- the class of grandchildren is
subject to open and as long as there can be more children, then there can be more
grandchildren. The grandchildren class does not close until the children die. If the
children class is subject to open (b/c O is still alive at time of deed) then the
grandchildren will fail b/c of class gift not definitively complete within 21 years of death
of relevant lives.
If this is a will: the class of children is not subject to open (O has died, cannot have
anymore children) and so no rule violation.
Possibilities of Reverter: Are not subject to R.A.P. If O to A in fee simple so long as
used for school purposes then to B and B's heirs. RAP would cross out whatever is
grammatically necessary to get rid of B (executory interest) and then end up with O to A
in fee simple so long as used for school purposes. O retains the possibility of reverter.
Even if O dies, the possibility will pass, via succession, to O's heirs. Example: Floyd's
corporation deeds land to City so long as used as library then to Floyd and his heirs.
Years later, city abandons library and Floyd's heirs say that they can now claim. RAP
will strike out children as executory interests, then end up back to "to City so long as
used for school purposes." Reverter preserved in Grantor. Estate goes back to the
corporation/grantor and then through the shareholders (deceased Floyd) and then through
the stirpes to his children. They end up with an interest to property via a possibility of
reverter, not via an executory interest. In Oregon -- reverter can only be transferred once
it has become vested (after defeasing event). City of Klamath Falls v. Bell
Charity to Charity -- Out of respect for charities, most courts will uphold a shifting
executory interest of a charity even if it violates RAP. (O to Museum as long as charge
no admission, then to Red Cross).

LEASEHOLD ESTATES

Marital Estates: In the marital estate, the wife had no property rights of her own -- all
were derivative of her husband's. However, wife can opt for one of two things in order to
protect herself in the event that husband dies.
Dower: This is a 1/3 ownership in life estate of everything that the husband at one time
owned (seised of) before death. Applies to things sold away or taken by creditors. At
husband's death, wife can elect to take dower and all creditors and purchasers will have to
give her 1/3 and wait until she dies to have f.s.a. In order to sell an estate, unencumbered
from inchoate dower (not yet elected) a husband would have to get his wife to sign off
(release) on it. Does not apply to personal property.
Barrable Shares: Gilbert's calls this an elective share. This is a common law 1/3 or 1/2
ownership, in fee, of all that husband had at time of death. Does not then apply to any
property conveyed away before death or attached by creditors. Does, however, apply to
personal property so it is the smart choice if the real money was in stocks, not land.
Curtesy: Husband got life estate in all of wifee's property as long as there were issue
from the marriage (incentive for husband to father child)
Example: H dies, 5 days later, W elects dower. Then, son is married and soon dies, wife
(daughter-in-law) elects dower. How much does she take?
Two possibilities: 1) W got 1/3. Son then got 2/3 in fee, with a remainder in 1/3. When
he died, his wife would take 2/9 of the fee.
2) During the five days following father's death, son was seised of entire property. Then
mother elected dower. So 1/3 of whatever son was once seised of before death would
also equal a 1/3 estate.

Concurrent Ownership: Several kinds of concurrent ownership. Tenancy by the

Entirety, Joint Tenancy with Right of Survivorship, Tenancy in Common. All can
be severed and partitioned. Partition in kind: the physical property is carved up in equal
shares. Partition in sale -- sell and divide the money.
Joint Tenancy: Generally created by the magic words "as joint tenants" along with
"with right of survivorship." Some courts say you have to say to A and B as joint tenants
and to the survivor of them and his heirs. Singular "his" because only one will survive.
However, the joint tenancy can always be severed, creating a fee simple interest in each
tenant -- so "their heirs" is valid way to write the deed. If there is any ambiguity in the
deed, the constructional preference is for a tenancy in common. See In re Michael where
court read the ambiguity of "and to their heirs and assigns forever" as meaning a tenancy
in common.
Four Unities Test: The four unities required at the common law for a joint tenancy are
unity of time, title, interest and possession. Tenants had to take under the same title, at
the same time, in the same share. If any one of these was not present, then a tenancy in
common. Example: A, B, C, D hold Blackacre in joint tenancy. A conveys her share to
X. X now holds a 1/4 interest in a tenancy in common with the others. The others hold a
j.t.w.r.o.s. amongst eachother. Example: Nellie, Anna and Katherine have a jtwros.
Nellie conveys her share to Anna. Anna now has a jtwros as to 2/3 of the property with
Katherine and holds1/3 in common. If Anna dies first, may will her 1/3 to her children,
the 2/3 still goes to Katherine (as the survivor). Jackson v. O'Connell.
Exceptions to the Four Unities:
"With Right of Survivorship" Michigan: Michigan, the only court this way, thinks
that if you add in "with right of survivorship" the language is there to distinguish itself
from a normal joint tenancy and instead to create two life estates, with contingent
remainder in the survivor, so no severability allowed. Jones v. Green. How to get
around this?: O to A & B & their heirs in common law joint tenancy with severable right
of survivorship.
Mortgaging/Tax Sale: Joint tenants are said to have a fiduciary relationship. So when
one sees that the property is about to be foreclosed, may pay off the principal of the loan.
She does not however now own the property. She must allow her cotenants to pay their
share in a reasonable time. A mortgage is a lien, does not transfer legal title. Unity of
title is not destroyed by taking out a mortgage. Laura v. Christian.
Merging Titles: If one joint tenant conveys her share to another j.t., a non-merger will
save the joint tenancy as between the other remaining tenants. Example. Nellie, Anna
and Katherine are joint tenants of B'acre. Nellie quitclaims her share to Anna. Now
Anna has 1/3 share in f.s. and she and Katherine have a 2/3 share in joint tenancy.
Jackson v. O'Connell.
Parole Evidence: When language is the least bit ambiguous and intent to create a joint
tenancy is clear, court will engage in remedy of reformation and rewrite with the
appropriate language. Vadney,
Accounting/Statute of Anne: A C.T. who ousts other tenants will be liable for the
rental value of the property. Otherwise, if no ouster, don't have to pay rent. If tenant in
possession is profiting off of the property, she will be accountable to the other co-tenants
upon partition -- if that profit is above her own share. Statute of Limitations: applies to
these cases except between fiduciaries, the statute is tolled until the one in possession
repudiates (says will no longer act in the interest of the tenancy) or if no express
agreement regarding the accounting, the statute will toll until partition -- when
accounting may commence from beginning of the estate. Georgen v. Maar. However,
could squeeze out the non-payer of profit equitably -- put a lien on her share in equity for
the amount of rent due. Every time more rent comes due, lien on more property, until
equitably she is no longer a JT.
Mining/Farming/Timber: Duty to account for mining profits (as impossible to
determine shares of underground minerals). Farming does not deplete the land so no duty
to account for profits. Timber, easy to tell how much=fair share. Anything over must be
accounted. Ouster -- if you grow really tall corn, so no one else can enter or use the
property this may be considered an ouster and rental value will be due.
Repair: No cotenant has the duty to repair. If one does, may recover costs (above her
share) at partition. Writ da rapparatione faziendo: can try to force co-tenants to make a
repair.
Waste: Joint tenants can engage in waste. To avoid that, indicate no right to partition --
A & B have life estate in t.i.c. followed by a contingent remainder to the survivor. The
common law of joint tenancy is that they are always fee estates. B/c both are vested in
fee, waste can begin.

Tenancy by the Entirety: The five unities. Tenancy by the entirety calls for five unities
-- time, title, possession, interest, and flesh! This means that it is reserved for husband
and wife. Many states assume t.b.e. when an estate is conveyed, naming husband and
wife.
Creation: Husband can deed his share to himself and wife, as new entity without
violating 5 unity rule. "The husband did not convey to himself but to a legal entity which
was the consolidation of himself and another.
Personal Property: No. There can be no tenancy by the entirety in personal property.
This is to protect creditors. Exceptions: Involuntary conversion (condemnation by state)
where money really is supposed to replace the real estate (Jamaica Bay) -- money is the
"substituted res.". Example: H & W own property in the entirety. Take out fire
insurance policy. House destroyed by fire and they collect on policy. Wife wants to
partition and take her half. The policy is considered a personal insurance contract and so
personal property. No tenancy by the entirety, rather, tenancy in common, which means
wife may partition (w/o divorce) and claim her half. Hawthorne v. Hawthorne.
West Coast Mortgages: A joint tenant (or tenant by the entirety) may mortgage "his
share" without effecting a severance of the estate. The mortgage is only a lien on the
estate and does not pass legal title. Mortgagee takes the risk that the mortgagor may not
be the surviving tenant. Must get all jt's to sign off on the mortgage, otherwise the
mortgage interest dies when the mortgagor dies. Example: H & W own as joint tenants.
W divorces and H then mortgages his share to his parents. He dies. Parents claim a 1/2
interest in the estate. However, as W did not sign off on loan, nor was there a prior
severance, the parents lose their interest. If H&W had owned as t.b.e., then the divorce
would operate as a severance to a t.i.c., protecting the creditors. People v. Nogarr.
East Coast Mortgages: In the East Coast, a mortgage is the passing of legal title and
effects a severance. Way to get around this is to call the mortgage itself "an instrument
creating a lien" and do not use the word mortgage at all in the agreement.
Doctrine of Equitable Conversion: When there is a sale of land -- change from land to
personal property (money) which eliminates the privilege to tenancy by the entirety. This
happens upon delivering of a deed to a purchaser or agreeing to deliver deed once price is
fully paid. H&W in j.t., sign contract to sell house. Now their only rights are contractual
rights (to the $$) which do not recognize joint tenancy, so effects a severance to tenancy
in common. (Washington State does not recognize this).
Straw Conveyance Severance: In some states, this is not necessary to sever a jtwros or
tbe. Can be implied by intention -- divorce agreement, for instance, which splits up land
in future shows an intention to have severed the jt (of course, if they had owned in
entirety, the divorce alone would have done so). Mann v. Bradley.

Slayer Statutes: Generally, one cannot inherit (by way of will or intestacy) when
convicted of murder. But what about with joint tenancy (when interest is not passed by
inheritance -- pur my et pur tout). What to do when one j.t. kills the other. Who is the
actual survivor? 6 possible ways to go about this.
1) murderer is deprived of the entire interest except for a life interest in one half. Rest to
descendants of victim. This encourages severance before murder.
2) Murderer keeps all of the property.
3) Murderer holds a constructive trust to the extent of the computed value of one-half
the property as of the date of the victim's death for the period of the victim's
expectancy. This trust is for the benefit of the victim's heirs. The value is not
adjusted over time (so if estate worth $100,000 at death, then murderer is trustee for
$50,000 for the remaining 30 years that victim probably would have lived).
4) Murderer is chargeable as constructive trustee of the entire estate, for the benefit of
the victim's estate.
5) The murderer is chargeable as constructive trustee of 1/2 of the property for the
benefit of victim's estate. 1/2 to murderer?
6) Murder effects a severance of property, 1/2 to victim's heirs, the other 1/2 to
murderer.
Problems with slayer statutes -- many are worded as to require a conviction. What
happens if W kills H and then commits suicide before she is convicted? Whole estate to
W's heirs? Duncan v. Vassaur.

Condo Ownership: Condo ownership is an ownership in f.s. as to the condo itself and
its interior and a tenancy in common as to the common areas. However, the t.i.c. is not
severable. This is a reasonable restraint on alienation.
Uniqueness of Condo: One court has held that hi-rise condos are not unique and
therefore the vendor is not entitled to specific performance for sale. Does not address
whether purchaser is. Specific performance only for when land was truly unique. Centex
Homes v. Boag.
Liquidated Damages: as a rule, when they have been inserted into a contract, you are
stuck with them as the exclusive remedy -- especially if you drafted the contract. Centex
Homes v. Boag.
Multiple Tort Feasors: What to do when damage is done to your condo because of
negligence of the common area. Who is liable? In condo situation, no joint and several
liability because the individual condo owner does not have control over the common area.
Instead, as each pays pro rata for the insurance, etc., each pay pro rata for the damage.
Sometimes there is a condo board or association to sue. Dutcher v. Owens ("the onus of
liability for injuries arising from the management of condominium projects should reflect
the degree of control exercised by the defendants").
In a tenancy in common, however, can hold anyone of the t.i.c.'s liable. They may pay
damages and then, upon accounting, recover from the other tic. Assumed that they each
have total control over the property. Hypo: 100 tenants own as tenant in common. Pool
upon the property. Child jumps in and drowns. Can sue one tenant as responsible for
whole (chose the one who can pay).
LEASEHOLD ESTATES: Landlord and Tenant
Generally: Leases have covenants (like promise in contract). Landlord covenants that he
owns property and that no one will come in and kick tenant out. Covenant to use
property for only residential purposes. Covenant to supply heat and hot water. Covenant
to pay rent. Covenants are either independent (as in olde land law -- so one breach does
not allow for the other to withhold) or they are dependent (contract law: one breach -- no
hot water -- allows tenant to withhold rent). Not always dependent in both directions -- ll
can not always turn off heat, this could be found an unconscionable dependency.
Remedies: contract remedies are generally better than leasehold remedies so contract law
has supplanted leasehold law.
Tenancy for years: fixed calendar dates for the beginning and end of the tenancy.
Periodic Tenancy: from month to month or year to year, period of some fixed duration
that is renewed for another period unless someone terminates.
Tenancy at Will: this is generally the state of a tenant who remains in possession on a
lease that is void (or voidable). The tenant at will need only pay the fair market value of
the property in possession. (Notwithstanding Slade case which holds to the contrary).
Tenant by Sufferance/Holdover Tenant: This is the tenant who stays longer than the
lease allows. Pays under the same contracted rental price. Subject to eviction or being
held for another full term.
Notice to Terminate: Varies. A year-to-year usually requires 6 months notice.
Tenancy at will -- requires 30 days in many states. However, any eviction notice must
properly identify the type of tenancy -- must say "all holdover tenants" to address the
holdovers.
Renewal Convenant: This is a Majority Rule. Holdover tenant and landlord are subject
to the same covenants as the original lease (if paying same amount as before, should get
same promises!).
Statute of Frauds: split of authority. Some states will allow for an oral lease for one
year which begins in futuro. Any possession on an oral lease which is for more than one
year will create a tenancy at will. Specific Prevails over General: A 1 year lease is a
narrow type of contract historically governed by landlaw and so statute of frauds may not
effect it.
Quiet Enjoyment: This is a dependent covenant written in most leases, if not it is
implied in which is the landlord's promise to deliver and maintain the premises for the
exclusive possession of the tenant -- that no one with paramount title will evict. Usually
interdependent with the payment of rent (though AZ says no). A quieted leasehold.
Paramount title may be a woman electing dower after husband dies (as even if hubby sold
the apt. building to LL, if wife did not cosign, it is subject to her dower (1/3 life estate).
Can sue LL for breach of covenant -- he should have done a better title search.
Delivering Actual Possession: Landlord promises to give legal title not threatened by
paramount title. But what happens when the previous tenant (holdover) refuses to leave?
American Rule: landlord is only responsible for things not strange to the landlord (like
those with paramount title). Not responsible for interference by another in tenant's actual
possession (lease is essentially a delivery of a right to sue).
English Rule: on first day of lease, landlord is responsible for delivering actual
possession and getting rid of holdovers or lunatics with guns. Favored rule. Example: LL
had to evict old tenant which cut off several days from beginning of new lease with
Adrian. Adrian not responsible for rent for those days as the covenant was dependent.
Adrian v. Rabinowitz.
Constructive Eviction: Tenants may cease paying rent and claim there was a breach of
the covenant of quiet enjoyment by saying they were constructively evicted. Example:
Tenants living in property for residential purposes complain of too much noise from other
tenant who operates loud lounge. Landlord does not control lounge tenant. Held for
tenants. Blackett v. Olanoff. Landlord may be acting through other tenants, thus through
agency giving them "paramount title" which once used to evict, is a breach of the
covenant of quiet enjoyment. Must still establish cause. The majority rule is that control
by LL does not mean cause -- however repeated complaints and a failure to act may do
the trick. Hypo: If there is a duty to repair written in the lease (or implied through
statute) and the landlord does not, this can be considered a constructive eviction.
However, if you stay too long after the problem (and continue to pay rent) you lose your
right to claim constructive eviction.
Exculpatory Clauses: will always be strictly construed -- if it does not address
constructive eviction, then may not limit rights thereunder.
Partial Eviction: Even building a brick wall which comes in 1' into leased property may
be deemed partial eviction with no rent owed. Smith v. McEnany.
Law of Condemnation: If rental property is encroached on by city, then keep paying
full rental and get part of the condemnation award (which is a good deal if you pay low
rent anyway).
Habitability: Warranty of Habitability/Covenant of Habitability: This is usually
implied into leases by statute. In DC, one may not waive their right to this warranty. The
analysis is similar to contract analysis -- however, Reppy points out that apartments are
essentially used goods, so not exactly like buying a television set.
Void v. Voidable: A lease is void when it is contra-public policy. A lease is voidable
when the tenant is allowed to void the lease, that is a voidable lease confers no right upon
the wrong-doer, it is voidable at the option of the tenant. A tenant-at-will stays on a
voidable lease.
Example: LL providing substandard housing (ceilings too low, bathroom unaccessible).
Tenant chooses to stay. The lease is voidable by the tenant at any time. LL forced to pay
a penalty for maintaining substandard housing. Ruling that housing must be to standard
at delivery of lease (1st day). Brown .v Southhall Realty
Habitability Plus/The Duty to Repair: The Javins Case. Most states now imply a
warranty of habitability and a duty to repair into leases. However, what level habitabilty
is still disputed. DC is unique by tying it into a housing code. Two possible remedies.
Can withhold rent until repair made, and then pay back all rent. Can also make repair
and then deduct cost from rent (repair and deduct). This is only good if your rent is more
than the cost of the repair. Javins court would not allow for that -- as it shifts duties. In
Javins, as most courts, there is a flat ban on waiving this warranty in a lease. Worry
about unconscionability/adhesion. Other possibility is to put rent in court escrow until
repair is made -- this assures landlord that she will get the rent once the repair is made.
Unlike Southhall, here the housing code is looked to throughout the lease (not simply
upon delivery of the lease)
Escalator Clause: If standards of habitability increase, if new duties are imposed, this is
a clause which allows for the rent to be increased as well.
Covenant for Continuous Operation: Many leases with commercial establishments are
not only for a base rent but also a % of profits. There is usually written in a covenant of
continuous operation -- that is to bind the business to keep operating or get out to lease to
another. If this covenant is not written in, the courts may read it in. However, if the base
rent is already substantial, the courts will not read it in. Example: Piggly Wiggly
stopped running their supermarket on this lot and moved across the way, didn’t give up
this lot though (probably to keep competition from moving in). As there was no express
covenant, a substantial base rental, and there was an assignability clause, court would not
read it in. Piggly Wiggly. IF says continue lawful business -- could you use the lot for
storage purposes? Isn't this lawful? What about "lawful manner" -- abandoned property
is still a lawful manner. Must be very careful in wording.
Kind of business operation: What if you lease a store to sell "novelties"? And you end
up selling porn videos. Does the sale of porn violate restrictive lease clause? If so, ll can
reneg on a different covenant -- to provide electricity. No fraud-in-the-inducement if no
intention to sell porn until after lease was signed. Fraud=immediate eviction (void lease).
No fraud=breach of covenant. Stroup v. Covenant
Trade Fixtures: Who gets them when the lease is up? There is an exception to the
fixtures doctrine for trade fixtures. If they can be removed without permanent
(unrepairable) damage to the building, then to tenant.
Forfeiture Theory: Theory that if you do not expressly retain your right to keep trade
fixtures from lease to lease, they are forfeited. The law abhors a forfeiture, however.
Example: Son has leasehold from parents, puts in a lot of equipment for meat locker.
Parents die, he and sisters get place in common, he leases their share from them. Now
they claim that he can't keep the meat packing equipment because the new lease does not
mention the covenant from the old lease (which was all removable fixtures  son).
Court says no -- as long as it was retained in the original lease. Hazel.
Institutional Theory: When you sell a business -- you sell the trade fixtures as well.
When you sublease a business, you sublease those fixtures. Different from just selling a
building. [Example: I own building with restaurant in it. If I sell Menza Café, I sell the
sinks, etc. If I sell the building, with no mention of the café (maybe I will reopen
elsewhere) I retain the trade fixtures].
Landlord Tort Liability: Old common law, landlord conveyed an estate and so no tort
liability (liability conveyed as part of estate). Now, ll is liable under 4 circumstances:
1) Where LL is aware of a danger and the tenant is not. This is Fraud.
2) Where LL lease the premises for public use. LL is in sole control and must get
insurance or deal with tort liability.
3) Common stairways, common areas, again in control of LL (not T)
4) When the premises are negligently repaired (causing injury).
Example: No lock on entryway to apartment building. Someone is assaulted by intruder.
This is a common area. Ct. is mistaken to call in an implied warranty -- as a breach
thereof only gets you contract damages. Should just say it falls under #3. Instead, courts
are creating a tortious breach of covenant. Simon v. Solomon, Trentacost v. Brussel. The
duty to repair combined with a non-repair or a negligent repair becomes a mixed bag of
tort and contract law resulting in tort liability.
Covenant to Pay Rent/Breaches: The Loehmann's Case. A late base rent may be a
material breach. However, a late additional, prorated commons area charge is not a
material breach. Time is of the essence clause. If you ignore the clause and routinely
accept rent 10 days late, should write a letter demanding rent and say "I am also
reinstating the time is of the essence clause." Then any breach is a material breach (that
is the essence of the time is of the essence clause).
Retaliatory Eviction: These are nearly impossible to disprove -- that is, once the motive
is found, it is very difficult to evict for any other reason. This is a taint. Creates a lease
in perpetuity. Edwards v. Habib. Even when the landlord claims wants to demolish the
building and so all tenants must vacate, the jury still believes the motive is retaliatory.
Very difficult to get rid of taint. Robinson v. Diamond Housing Corp. Like labor law,
when union wins and then management says fine, we'll just get out of the business.
These retaliations are usually in response to a tenant complaining about housing
conditions to the housing code officials. Javins would have no weight if a complaining
tenant could then be evicted for a non-complaining tenant.
Assignment of Leases
Landlord Duties: Upon apparent abandonment of a lease, a landlord has two choices, to
sue for full payment of rent or to mitigate by releasing the premises to another. Old
common law would say that a lease conveyed an estate and that LL may not re-enter
without forcing a partial or constructive eviction. Here, the landlord then has no duty to
mitigate and is better off not. BUT, under contract law, the landlord may consider the
contract breached, and may mitigate and still sue for any loss of expectation value after
mitigation. Mitigation (reassignment of the lease) will not result in an acceptance of the
abandonment. Common law theory is that LL is acting as agent for abandoning T and
subleasing. Finding a new lessor to pay more rent or for a longer lease period will not
create an acceptance of the surrender. However, may have to defend -- as T will say no
way I could have done that so LL is not acting as my agent. Way out: create two leases
for T2, one for remaining term of T1, another for extended time period -- with higher
rent, whatever. U.S.Nat'l Bank of OR v. Homeland.
Privity of Contract/Privity of Estate: Between a landlord and tenant, who have signed
a lease, there is privity of contract (signed lease) and privity of estate (possession of
premises). Once T1 assigns to T2, the privity of estate line shifts to T2. Covenants will
shift as well. However, LL still has privity of K with T1 and may hold her liable under
contract law. A novation between T2 and LL will finally release T1 from K. If T1
subleases the estate to T2, then they enter into a contractual agreement, however, there is
no shifting of privity between LL and T2. T2 has no rights and owes no duty to LL,
unless a fresh promise between the two (3rd party beneficiary rights).
Assignment v. Sublease: If you transfer remainder of your term, this is an assignment.
If you transfer remainder less one day, then a sublease. A preserved right of re-entry will
be read not as a preservation of sublease, but as an effort to enforce payment. Jaber v.
Miller.
Consideration for Assignment: If an assignment calls money paid consideration, then it
is a fee for the assignment itself, T2 still will be liable to LL for rent payments. A smart
assignor who wants to make $500 profit from rent will call it $500 in rent, and $500 in
consideration. This is to block a merger -- for if the LL acquires the subtenant's rights
(creates a novation with the assignee), then can collect all the money. If, however, a
separate contract -- for the consideration -- is drawn between T1 and T2, then T1 may
still have contract rights to collect the consideration from T2. Jaber v. Miller.
The Rule in Dumpor's Case: Once a LL consents to one assignment, the condition (of
requiring consent prior to assignment) is "exhausted." Dumpor applies to multiple
covenants (as with single covenants, it wouldn't be necessary anyway). A multiple
covenant is when the covenant reads that the lessee and its assigns and heirs are bound.
The ONLY way to get around this rule is to elicit a fresh promise from every assignee not
to assign to assignee2 without consent. Cannot simply write in the lease, Dumpor's Rule
does not apply as it is a rule. (Like with Shelley. Doctrines can be written out).
Duty to be Reasonable: The LL has no duty to be reasonable when approving an
assignment, unless expressed in the lease. Any duty to be reasonable = a promise not to
charge $$ to allow an assignment.

EASEMENTS
Easements clog land, they are permissible burdens on estates. Buyers typically don't
want to purchase an estate that is burdened by an easement. There are negative
easements, only two kinds -- air and light. These are easements which restrict a neighbor
from building a skyscraper to block your view (the free flow of light and air). Easements
are interests in land. They are granted or conveyed.
Appurtenant Easement: benefits the owner of land adjacent to the burdened property.
The benefittor owns the dominant estate. The servient estate is the one which is
burdened by the easement.
Easement in Gross: This is typically an easement granted to a RR to run its tracks, they
own no adjacent land.
Profit a prendre: This is the right to take something (coal, timber) off of someone's
property. An easement to go on the land and remove it is also implied. In gross: if the
timber is used to make desks to sell to the public, then the profit is in gross. Appurtenant:
if the profit instead is used to build a house on the adjacent land, then the profit is
appurtenant.
Magic Words: Reserve, appurtenant, heirs and assigns. This will create an appurtenant
easement (reserve one for the grantor -- can then grant it off to a third party) in a deed
which is assignable by the beneficiary of the easement. Right of way is also enough to
create an easement. Mitchell v. Castellaw.
Reserve: Can reserve a new estate. Can grant B'acre with a reserved life estate in the
SW corner. Only for grantor.
Exception: Cannot create a new estate by exception. Exception is an alternative to
writing a new metes and bounds description. Grant B'acre excepting SW corner (which
remains with grantor). Only for grantor.
Doctrine Against Reserving an Interest in 3rd Party: Must write "easement is
granted." Hypo: Can in same instrument grant B'acre 1/2 to A, 1/2 to B. Can also in
same instrument grant 1/2 to A, 1/2 reservation in O. But, b/c of doctrine, cannot, in
same instrument grant 1/2 to A, 1/2 reservation in B. Must say grant to B. Alternative is
to grant entire estate to B, have B then grant most all to A, with a reservation in B.
Willard v. Church of Scientists.
Maxims of Construction for Easements: 3 Maxims. One is to say a right of way is an
easement. Another is to apply the maxim of the passing of a greater estate or interest.
Minority rule in favor of easements so you do not create long awkward strips of land as
separate estates.
Licenses vs. Easements: A license is permission to enter land. It is always revocable.
Possession is held by owner (easement the possession is in the dominant tenement.) The
label that parties put on the instrument is not controlling (can't be a leasehold b/c LL
retains possession). An oral easement violates Statute of Frauds because an easement is
an interest in land.
Irevocable Licenses: Court uses estoppel to make a license irrevocable: Example: P
allows Ds to come in and build a ditch for their land to get water. It is ugly and a
nuisance and so P tries to revoke their right. Court looks to estoppel. Parol agreement:
not an easement b/c not in writing. No estoppel in pais b/c P never promised
irrevocability. No quasi-estoppel b/c P did not himself benefit. However, hardship
concerns b/c D's expended money. Stoner v. Zucker.
License + Interest=Irrevocable: Typical scenario is buying someone's car. You have
an irrevocable license, once the car is bought, to come on to property and remove the car.
The walkway to the door of your apartment. You have a license plus an interest. Always
allowed on that walkway. However, a ticket does not serve as an interest in a movie
house seat, it is a contract only. It is in writing, but still no easement. Example: Once
the theater owner announces "your license to enter is revoked" they may owe you the cost
of the ticket but you must leave. If you do not, you may be forcibly removed, b/c now
you are trespassing. Marrone v. Washington Jockey Club.
Easement by Necessity: This is for people who end up landlocked by the parcelling out
of land. There is an easement by necessity implied into the grant. Do not have to then
pay the grantor extra. This easement can be reserved, if grantor ends up landlocked, or
granted if the grantee is landlocked. Example: Parcel of land severed in 1895, the back
lot became landlocked. The implied easement of necessity lay dormant until claimed by
need by back lot owners. Assumed to be wide enough for residential use (horses in 1895,
cars thereafter). Finn v. Williams. Reppy notes that just because other neighbors will
allow you to use their ways, still need a permanent easement to situate your house and
where to build the garage, etc.
Inverse Condemnation: This is where you sue the City to condemn land for public
easement, as it is being used as such. This way you can at least get money. You are the
plaintiff (instead of the defendant in normal condemnation proceedings).
Maps of Roads/Paper Plat: If the lot is sold by the conveyor with reference to streets
which are undedicated. You get an implied easement in those streets. If the city accepts
the common law dedication and then vacates the street, it becomes a private easement,
still to benefit the appurtenant property.
Easement Implied by Use: This is almost like Adverse Possession. Easement must be
apparent. It is implied from the pre-severance user. There must be some degree of
usefulness, just short of necessity. It may be implied into the new grant. However, if
implied by reservation (i.e. implied for continued use of the grantor) then there must be
real necessity (she wrote the deed, could have thought of it). If implied by grant (for a
third party or for grantee) then do not have to show as much necessity. Need only have a
user in pre-severed land for one day, as long as apparent to grantee prior to purchase.
Apparent/Continous/Necessity. What about underground sewer? Not apparent, but
certainly a hardship to build a new one, maybe a reliance on it in purchase price. There is
no master list of permitted easements. Could be a light and air negative easement that is
implied into the deed. Cannot have an implied easement by reservation in a warranty
deed (most states).
Roving Easement: Owner of a servient tenement grants an easement but does not locate
it. Example: Grant to utility co. an easement to stretch utility lines across B'acre. If I do
not specify where, the lines may then go anywhere. Once they are up, however, the
location of the easement is fixed and it is no longer roving.
Prescriptive Easements: Much like Adverse Possession, but no exclusivity rule. Can
also be in gross. Most prescriptive easements are shared by both dominant and servient
estates (like a driveway). Continuous/claim of right/No express permission. If you have
permission, then you can never have a prescriptive easement. No light and air.
Presumption of Permission: 3 areas with respect to prescriptive easements where
presumption was contra prescriptive use -- use was not under license though.
1) open and unimproved land
2) blood relationship implies a license
3) neighbors - -more than contiguity but if there is social interaction or a friendship,
permission is implied.
Hypo: O grants A driveway but not under seal (SoF violation). Then A uses for 20
years. A gets a prescriptive easement. A mistaken grant is different from
permission/license. Example: Try to sell a driveway only. Law will say no (probably
would create an easement-- in this case, there were other defects to the deed). But have
been using as driveway for years. Neighbors know about it and permitted so clock did
not start. Tenant cannot block an easement -- no adverse possession as against tenant,
must be fee owner who wants to block. Luntz v. Kitchens.
How (not) to Oust the "dominant" tenement: Can write a letter to the person using
your property as an easement and demand that they leave. Problem is you have now
established for certain that the easement is w/o permission and have rebutted any
presumption of permission. Clock can start running for prescriptive easement. Dartnell
v. Bidwell. Hypo: If tree falls across a path I have been using for 19 years and I veer off
the path for a week until cleared away. The veering off may be an interruption (not
continuous) and prescriptive time has to start over.
Fiction of the Lost Grant: This is English common law. They will not allow an ouster
by calling the "intruder" a "trespasser" b/c there is the fiction that they were, once, actual
grantees. Must rebut this presumption properly, prior to 20 years user.
Novelty Easement: not allowed. Cannot have an easement to do something bizarre.
Must use contract law instead. Example: Movie theater marquis located next to bank
building (protruding out). Bank proposed new building which will block sight of the
marquis. Is there a prescriptive easement to carry letters up a ladder to the marquis
(novelty)? What about the sight/advertisement? No prescriptive light and air easements.
Ruled in favor of theater.
Scope/Overburdening/Surcharge of Easements: This is for easements whose use
expanded over time. A geographic surcharge is where the easement is being used to
serve other dominant tenements (not named in the deed). Example: An easement
granted to one store to use alleyway cannot be then used for several stores (though all
same owner) on different lots. SS. Kresge Co. v. Winkelman. An increased user simply
refers to the number of people (though all living at same house) who are using the
easement.
Change in Times: Most easements for ingress/egress are assumed to include whatever
mode of transportation (residential) necessary. I.e., not restricted to the horse and buggy.
If the easement is by prescription, then courts will be cautious about widening use. If the
easement is by grant, will have to consider the original intention of the easement itself.
Example: Servient tenement wants to build over a right of way easement. Offers
dominant tenement two options, a tunnel with certain clearance through proposed
building or an alternative route. Ct. holds for dominant tenement. Cannot force an
easement (which was granted) onto another route. Must be extremely careful in
restricting its height use. Sakansky v. Wein.
Hypo: If I build the building (above) and allow for a 11' clearance tunnel for 19 years
with no complaints. If then, on yr.20, the average height of trucks increases to 12', the
dominant tenement can complain and stop the clock on the prescriptive easement (of
cutting short to 11').
Doctrine of Mountjoy's Case: One stock rule. When two or more persons own an
easement or profit in gross, they must use the easement or profit as one stock (and not
individually grant access to a host of others). Example: Frank and Rufus both share the
rights to use a pond for bathing. Rufus licenses a whole campsite to enjoy his bathing
rights, which results in an overburdening. Apply one stock rule, force Frank and Rufus o
decide together who can enjoy user. Miller v. Lutheran Conference Camp Association.
Assignability of Easement in Gross: Must use the magic words "and assigns" in the
original grant. If so, and exclusive easement, still subject to the Doctrine of Mountjoy's
Case. This is especially relevant to easements to remove water/minerals/oil. Ten more
drillers will result in a rapid depletion.
Exclusive use/non-exclusive use: If the easement or profit in gross is non-exclusive,
then the easement owner may not apportion to others, servient tenement owner may grant
to others. If the easement is exclusive, then the easement owner(s) has exclusive control
over apportionment, must still operate under one stock rule.
Ways to extinguish an easement:
1) limit it in the grant to a specific time period
2) accomplishment of purpose: to enter and remove wood. Wood gone.
3) Prescription -- put up a barricade on a right of way for 20 years. Easement is gone as
to the position of the barricade.
4) Merger. If the servient and dominant tenement come under common ownership,
easement ceases to exist. Can still be revived, if the lots are then re-subdivided.
5) Estoppel. If dominant T says " I am no longer going to use this easement" and
servient T builds upon it, dom T is estopped in pais from asserting easement rights.
6) Abandonment: the Statute of Frauds will require a writing that it is now abandoned.
Not easy. Majority rule: can only be abandoned by affirmative acts (not simply a
failure to use). Must show intent to abandon.

COVENANTS
Generally: Covenants are promises in a deed to do, or not do something. Typical ones
are residential building only covenants, covenants to provide water, sewage, etc. The
benefit of the covenant goes to the dominant tenement. The burden runs against the
servient estate. You agree to do X for a covenant (whereas easements are granted). If I
agree not to build on my property so as to block your air and light, this looks like a
negative easement but the magic words (agree) make it a covenant. Promise also a
magic covenant word. Many novelty easements are construed as covenants. Often are
disputes whether a covenant runs with the land or was merely a personal promise.
Privity: There are two types of privity. Horizontal and vertical.
Horizontal Privity: Between original grantor and grantee only. Established by a deed, a
purchase/sale, gift, etc. The grantor and grantee must both have an interest in adjoining
land (grantor retains a lot for himself).
Vertical Privity: Refers to the relationships between grantor and successor and grantee
and her successor. Successor must have the same estate as the original promisor (the
burdened one) or there is no vertical privity. Example: Property Developing Group sells
off all lots and charges an annual fee to homeowners for upkeep of the common grounds.
Horizontal privity okay until all lots are sold. Once all lots are sold, Property Group
attempts to create an association. Assoc. owns no land, no vertical privity, burden will
not run with land. Neoponsit Realty.
Rule in Spencer's Case/In Esse Rule: If the promise pertains to something in being at
the time of the deed, then the burden is binding on all assigns. If, however, it is
something that is not in being at time of writing, then must include magic words "and
assigns" to bind the burden on successive servient estate holders.
Covenants to pay $$: Must satisfy three tests: 1) touch and concern, 2) intention to run
with the land, 3) privity of estate. Usually a burden respects the use of the land, not the
payment of money.
Running the burden/running the benefit: Do need horizontal & vertical to run a
burden. Do not, though, to run the benefit. If you are trying to enforce anything -- the
side you are enforcing against must be in vertical privity (burden running). You, though,
need not be in vertical privity (benefit running).
Touch and Concern Test: To run the burden, the covenant must touch and concern the
land, so that the thing required to be done will affect the quality, value, or mode of
enjoying the benefited estate conveyed. Appurtenant to it. This is looking at benefit side.
Covenantor's legal interest in the land is rendered less valuable. Example: Development
Company sells off all tracts and promises to supply water from its well to cottage on lot.
Cottage owners promise to buy water. New owners eventually build their own well.
Does not run with the land b/c Ct. finds no touch and concern -- once well is built, the
provision of water neither benefits the cottage or the real estate association (it is not being
provided to anyone else, the new well does not deprive anyone of water). Eagle
Enterprises v. Gross.
Ask Who is Enforcing: If the party who is seeking to gain the benefit is looking for
enforcement, then we are running the benefit. Then we must be sure that there is privity
on the other side to run the benefit against the servient estate.
Running the Benefit: The law does not require horizontal or vertical privity to run the
benefit with the land. However, if the benefit is in gross, the covenant does not run with
the land. Example: A subdivides land and sells lot X to B. Covenant not to compete on
B lot. A leases out to T. T may enforce the covenant (as a beneficiary of covenant)
though no vertical privity as between A and T (leasehold, not a freehold).
Running the Burden: The law does require vertical privity to run the burden with the
land. Hypo: Covenant between A & B, A promises to mow B's lawn. If A then leases to
T, T is not responsible for the covenant, it will not run to the leasehold. Instead, A is still
kept on the promise.
Covenant Not to Compete/Economic Covenants: (Maj. Rule) Courts abandon the
"touch and concern" test. A covenant not to compete may run with the land. Touches and
concerns the burdened land. Does not touch and concern the benefited land unless it is
part of an overall plan that is clear. Example: If A runs a drug store and sells 1/2 of his
lot to B, may insert a covenant not to compete (ie no drug stores) on lot B that will run
with the land. May also mix in a covenant not to compete in surrounding areas (benefit
in gross) in same deed. However, A may not be able to pass down the benefit of the
covenant to assigns unless the benefit runs with the land. The burden will run with the
land to successors in title (however, if the benefit does not run, then the burdened party
doesn't care!). Whitinsville Plaza v. Kotseas.
Running a Covenant on Personalty: Depends on the intention of the covenantors.
Example: A covenant to operate a jukebox on Blackacre. If running with the land -- can
always move business across the street but leave a jukebox in the parking lot. If running
with the business -- (i.e. operate the jukebox at Richie's Diner, then can still sell the
business to a buyer who may disregard the covenant (and argue no covenant on
personalty). However, may be liable under breach of contract.
Parol evidence Rule: Majority Rule: can bring in extrinsic evidence (especially with
deed polls) to show whether covenants referred to all lots, or only the first one sold.
Minority Rule: no extrinsic evidence allowed.
Reciprocal Negative Easement (Servitude) Implied by Scheme. Usually arises when
it is not clear whether you have accepted the burden of "residential building only." If not
clear, look to neighbors, etc. Because treated like an easement, no privity is needed
(neither horizontal nor vertical).
Notice: A subsequent purchaser or assignee is subject to the burden if she has notice of
the restrictions. Notice may be of record in the chain of title (actual), or by inquiry
(asking the neighbors) or constructive (look around you and see what is there). Example:
50 Lots sold by deed poll. Dispute as to whether all lots were restricted by "residence
only" or simply the first lot sold. IF deed poll had referred to a map which says
"residential only" then all lots are implicated. BUT, if deed poll simply makes a metes
and bounds description with no recorded map, then no notice of covenant and buyer must
do a deed search. Court will impute notice if the covenant was recorded. Sprague v.
Kimball (harsh MA rule). Example2: Inquiry notice. Look to your neighbors, if they
bought lots on reliance that entire subdivision be residential only, then you are also,
reciprocally bound. This is Inquiry Notice. Dates back to the day the land was first
purchased (from divider). Sanborn v. Mclean.
Never Retroactive: The scheme is never retroactively applied. So, if later deeds include
covenants in your neighborhood, but yours doesn't, then you escape.
Rule of Shelter: If when you buy, the seller herself was never on inquiry notice, then it
makes it unfair that you be on inquiry notice as well. Must figure out upon what date to
fix the inquiry notice -- usually first deed to individual lot.
Mass Minority Rule: If only the last lot sold is burdened, the benefit will still be cast on
all prior purchasers in the whole schemed area. Example: Though sale of land was not
made with any reference to scheme (that marshland would not be built upon and will be
burdened), later evidence of scheme (i.e. the last purchase of lot which had a covenant)
will be admitted to locate and run the burden on the marshland. Snow v. Van Dam. One
map rule. Example: 50 lots, 1-40 sold with no reference to scheme, no covenants. Then
41-50 have reference to residential only scheme. Minority rule will allow 1-40 to sue 41-
50 if they try to build a gas station, i.e. cast the benefit upon them. BUT 1-40 can build a
gas station b/c the burden will not be cast upon them.
Location of Burden/Benefit: Courts will not imply the location of the burden -- must
have evidence (like a map, inquiry notice, etc.) Courts will imply the location of the
benefit which results in retroactive burdens. This results in non-mutuality. The prior
purchasers may get the benefit, but cannot be burdened. So they can sue others to
enforce the scheme or whatever, but if they choose to build a gas station, no can sue
them. This will spread the benefit.
Amendments and Associations: A majority vote of the homeowners of a subdivision
can change the scheme and covenants, if the deeds provide that the covenants may be
"amended" by majority vote. This may appear to make a new covenant retro-active as
you may have bought or invested on reliance of one (allowed to build garage -- bought
the materials) and then it is removed. No reliance problems, because you were already
on notice that the covenants could be changed. Subject to "Fairness Test" i.e. you won't
be required to tear down a structure, but may lose on the building supplies in anticipation
of construction. Zoning always allowed to be retroactive.
Reservation in Grantor to Amend: When changes in covenants are reserved in the
grantor, court will say this is a personal covenant, not to run with the land (as opposed to
majority vote by land owners). Suttle v. Bailey. Minority rule will allow developer's
assignee to amend if it is done reasonably.
Waiver of Covenants/Acquiescence/Change in Circumstances/Abandonment: If
there have been changes in the division itself, then may imply acquiescence to rest.
Changes outside the division will have no bearing. Acquiescence on edge of division
does not imply acquiescence in middle. Abandonment must be affirmative action.
Example: Where there has been building of church within division, does not mean an
acquiescence to a gas station. Change in the outside zone so as to affect the border lots --
buffer zone -- will not be held to affect covenants in interior of subdivision. Cowling v.
Colligan.
Is a covenant property? WAR says "yes." If government condemns area (which was
part of your subdivision and was residence only) right up to the edge of your lot to build a
prison, your property values are affected. Courts will probably not allow recovery.

REAL ESTATE CONTRACT/STATUTE OF FRAUDS CONCERNS

Generally: A real estate contract must be in writing. The details, however, may be
worked out subsequently. The party charged with performance must be the one who has
signed it (so not necessary that it be signed by both parties). A memorandum can be
created inadvertently. Can be in a letter which is written to Mama -- which says, " I just
sold B'acre to Jones for $1 million. Can also be during discovery for the suit itself -- if
you are asked, and it is recorded, "did you make an oral promise to sell B'acre for
$1million" and you answer "yes."
Ways around Statute of Fraud: Fraud itself. If misrepresentations, etc. are made.
Hardship: the "tear to the eye test" if it will cause hardship not to enforce, courts will
enforce it. Evidentiary substitute: other evidence may take the place of writing. Many
courts will require both.
The Writing Itself: May be in parts. For instance, a writing may be a grant of an
"exclusive right to sell" a piece of property coupled with a buyer's acceptance of the
terms of the broker's agreement. Even though the buyer and seller do not have an
agreement as to the two of them. Ward v. Mattuschek.
Taking Possession/Making Improvements: You must take possession and make
improvements like an owner. If you are a holdover tenant, then cannot claim that you
now have possession. The improvements must also be consistent with ones an owner
would make. Shaugnessy v. Eidsmo. Estoppel claim: if make improvements and seller
does not object, then can imply a "signature." The improvements must make
unequivocal reference to the purchased property.
Hardship: Under the hardship theory, we don’t care whether the seller is aware of the
improvements or not. If you act in reasonable reliance before repudiation and remedy of
restitution is not enough, then don't need possession/payment/improvement. Hickey
v.Green. (P sold her house in anticipation of moving onto D's property. D repudiates, P
should not be forced into lawsuit against her buyer.) Relevant consideration is whether
restitution would instead be adequate remedy. Like paying quantum meruit for watching
over old man instead of enforcing supposed promise of gift of property. Burns v.
McCormick.
Evidentiary Substitute: Must show that seller is aware, to have an evidentiary
substitute for his signature.
Unequivocal Reference Test: Any possession, improvement, work, hardship must make
unequivocal reference to the sale. Example: Selling your business at market value and
moving in for free room and board with old man is not unequivocal reference to a
promise to then grant you the house and land when he dies. Could just be for
consideration -- like paying a house keeper. Quantum meruit instead. Burns v.
McCormick. Holdover tenancy is not unequivocal reference of possession. Some
improvements are not unequivocal reference.
No words of promise: No testimony will be allowed which says "he said X." The
Statute of Frauds is a defense to use when the other is perjuring himself. It is an anti-
perjuring defense.
Pure Fraud: Having no intention whatsoever of keeping the promise, or abuse of a
confidential relationship. There is no fraud when someone simply changes their mind
and no hardship is caused by giving damages in restitution (not spec. performance). If
action does not make unequivocal reference to a gift, Court will give restitution (in
quantum meruit) instead. Burns v. McCormick.
Finding the Real Price: With evidentiary substitute/improvements/possession we never
get the real price which was actually agreed upon by the parties. WAR says a court
should look to any unsigned memos first, if they at least do stipulate price and find the
signature in the evidentiary substitutes.
Rescission: Can orally rescind a contract. Rescissions are not covered by the Statute of
Frauds.
Reppy's Incomplete Memo Doctrine: Accepting a check for deposit may be enough,
like a deed poll for covenants to run the burden, is at least a partial memorandum. If all
that is missing is the price, then look to other evidence thereof (market?)
Subscription v. Signature: Signature can be anywhere on a document. A subscription
must be at the bottom of everything.
Admitting Oral Promise in Court: Split of authority. If D admits of oral promise in
court, this can be an inadvertent memorandum and D will be held to promise. Reppy
would side with the Restatement which says if admit in court, then still need other
evidence, however no requirement of unequivocal reference. Hickey v. Green.
Naming the Parties: WAR believes it should not matter whether the buyer is named as
filing a bill to enforce in court is an acceptance of the memoranda (ie if a buyer is trying
to enforce sale). Evidentiary substitutes such as realtor date (when the house was shown)
or receipt of down payment should suffice. IF though, the house was shown to a variety
of people and more than one is asserting the sale, then there is a problem. Kohlbrecher v.
Guetterman.
Dependent Relative Revocation: If I tear up my will and then die before I can sign a
new one, the old one will apply as it is assumed that the destruction of the 1st was
dependent relative to the signing of the 2nd.
Oral Recission: Can rescind orally. If going to invoke Statute of Frauds on an oral
rescission, must warn the other parties that you are assuming the duties of the old contract
in tact. Example: Cannot orally rescind a time is of the essence clause, then claim SoF
defense when payment is late. The other parties assumed oral rescission was effective
and never put on notice that TOE was back in effect. Imperator Realty Co.
Consideration Paid or Not: May use clear and convincing evidence to show that
consideration was not paid (or that K price is incorrect) as an exception to the parol
evidence rule.

Time is of the Essence: The date of performance, in equity, will not be strictly enforced
unless the contract says "Time is of the Essence." If contract has no TOE clause, may
then modify orally by saying that time IS of the essence. Equities are changed, but the
contract is not (SoF). If you sue for damages, then the date will be enforced. General
rule: must notify parties that TOE is being enforced before can get a forfeiture.
Example: If written extensions allowed, and TOE not mentioned before forfeiture notice,
equity will not enforce forfeiture. Even if TOE in original K. Kasten v. Maple.
Financing: Contract should specify, clearly, what type of financing and to what
specifications will be considered acceptable. Buyer and Seller may have different
expectations and SoF will not allow one more than the other. There is a due diligence
covenant on buyer to get financing. Example: K says "proper amount of financing" with
no explanation. Ct. says contract is unenforceable because of indefiniteness (what is
proper? 5% interest rate, loan for how much money?) Gerruth v. Pine.
Mortgage Financing v. Contract for Deed Financing: Mortgage financing uses deed
as security for loan (lien theory states -- legal title remains in mortgagor). In case of
inability to pay, the mortgagee can take an action against the land, sell it at a foreclosure
sale and take that money to repay itself, any extra to go to the mortgagor. Contract for
Deed financing is payment in increments until totally paid off at which point you get the
deed. Low-income folks who can not get a mortgage (from bank) often bought this way.
However, foreclosures were common as non-payment is breach of contract and deed is
forfeited. Then seller gets property back, claims all payments as damages and can resell
to next buyer. Equity abhors this. Example: B paid over 1/2 of purchase price on
installment land contract. Was late in payment and owner sought forfeiture. Equity
abhors forfeiture and when substantial amount has been paid, will not enforce it. Will
treat like a mortgage and allow opportunity to cure before judicial foreclosure. Skendzall
v. Marshall. Equity will not be so shocked if the contract for land includes an option of
financing -- 3% down, harsh financing (forfeiture) or 20% down, low financing (no
forfeiture).
Deed of Trust: Most Southern states practice this. This is to secure the loan by placing
the deed in the trust of a third party. In case of forfeiture, the third party sells the land,
pays the mortgagee and gives remaining to mortgagor. In this instance, the trustee can
proceed straight to sale (w/o judicial foreclosure first) and the lender can bid (b/c not
lender's sale -- if lender has to run the sale, then cannot bid).
Remedies for Breach of Contract for Deed Financing:
a) Seller gets title and buyer gets restitution -- This means that seller reimburses
buyer for the money given over less the fair rental value of the property while buyer
was in possession.
b) Acceleration and strict foreclosure -- This means that the court will accelerate the
principal and the interest on the payments. So buyer must pay of all remaining loan
 plus interest, at once. Should really only have to pay the interest on the overdue part -
- not interest on the part that is future-due. Strict foreclosure means that title goes
straight to mortgagor -- don't need judgment, does not have to sell it.
c) Acceleration and judicial sale -- This would be same acceleration as above, and if
buyer can't do it, then judicial sale, at which point if seller gets more than what is
owed on principal and interest, then the rest goes to the buyer.
d) Buyer buys back into installment K -- this is the simplest -- the buyer cures what
was in default and resumes under the original installment contract.
Willful Defaulters: Usually a willful defaulter is someone who realized she made a bad
bargain and wants out. Must have the money and refuse to give it -- otherwise it would
be hard to show willfulness. Willful defaulters may have same options as above -- most
fair if you subject them to the more harsh remedies of a & b. Union Bond v. Blue Creek
Redwood Co.
Marketable Title: There is an implied covenant to provide a marketable title in an
executory contract for land sale. There may be easements and covenants in the title, but
as long as they are "excepted" in the contract (named in the contract) then it is
marketable. If they are not, the buyer can get out. Inchoate dower is an example, a lien,
or an adverse possession claim are others. If you find out that the true metes and bounds
is smaller than what you thought, this is a title defect (your pool is actually on neighbor's
property). You then are the encroacher. If their pool is on your property, then you are
the encroachee and not a title defect -- you may end up getting their pool!
Quitclaim: A quitclaim deed implies that there is a fee interest in the land, that is
absolute, unless expressed otherwise. Instead, should say "all of my interest" in B'acre.
This does not purport to convey anymore than what is actually owned, which could only
be a 1/2 interest. Wallach v. Riverside Bank.
Law Date: This is the date of final performance, when contract and deed merge -- all
payments made. Once you make your last payment, the contract and its covenants merge
and you have no claim against the seller if you later discover a defect.
Anticipatory Breaches/Tender: Must show that you are able to tender and that the
defect in the title is incurable in order to effect an anticipatory breach. Example: Buyer
finds that there is a defect in the chain of title to deed, potential interest still held by
former owner who quitclaimed to the bank before mortgage paid off, once paid off,
though, may have regained some interest. He refused to sign off, and so defect was
incurable. Bartos v. Czerwinski.
Doctrine of Feeding the Estoppel/After Acquired Doctrine: If the grantor gives a
warranty deed but has not full legal title, but later acquires all of title, title will then pass
through the deed or any series of subsequent deeds. Quitclaim is to convey all present
interest. To warranty is to convey title once it comes your way. Example: If Eppinga
had conveyed by warranty deed instead of quitclaim to the bank, then he would have
been conveying full legal title to them (equitable at present and legal once mortgage
paid). Instead, by quitclaiming, he only conveyed equitable title (possession) and when
the mortgage was paid off the legal title came back to him. Bartos v. Czerwinski.
Material Defects: An adverse possession claim can be cured by law date -- seller can
bring a quiet title action. If court finds that Adverse Possessor has no claim, then buyer
cannot get out of the contract. Luette v. Bank of Italy. A violation of the right to quiet
enjoyment may effect a rescind. Do not have to allow time for cure if buyer is evicted
(partial or constructive as well) while paying on contract.
Must put party on notice of breach in order to breach: Buyer must alert seller of
defects and allow time for cure before can refuse tender. If buyer refuses to tender
because of the breach, then seller does not have to offer title/tender. Example: Broken
fence and lack of certificate for pool were not incurable defects and buyer must put seller
on notice with time to cure before breaching. Cohen v. Kranz. However, if the seller is
insolvent, may be evidence of seller's inability to cure (pay off lien, etc.) and buyer may
assume an incurable breach.
Anti-assignment Clauses: This is not considered a restriction on alienability in a
contract-for-land sale. Courts are still reluctant to enforce. In a long-term contract for
land, looks more like a lease and so court more likely to allow anti-assignment. Short-
term looks more like a fee sale -- no restrictions on alienability. Perfectly fine, though, to
make a contract with another which is a promise to sell using that money to pay off
original contract-for-deed. Example: Buyer's contract for sale to another, when contract
with original seller still inchoate, was not an assignment, it was an independent contract.
Assignment when assignee steps into shoes of assignor and resumes payments of original
seller. Here, buyer was simply selling warranty deed which conveyed land, applying
money from sale to pay off remainder on contract for deed. Handzel v. Bassi.
Tender in Full: If buyer violates the no-assignment clause, may offer tender in full (to
merge contract with deed and relieve himself of the covenant) to escape forfeiture.
Handzel v. Bassi.
Lis Pendens: This is a notice on the record of title that there is litigation pending
concerning that title. Not a bad faith breach though, as it is curable and seller may
honestly believe that he will prevail over litigation. Example: Seller not required to settle
lien on property in order to tender, may offer $$ to indemnify buyer. However, this may
be unacceptable as it forces buyer to purchase a lawsuit as well. Kramer v. Mobley.
Good faith vs. Bad Faith Breach: English Rule: If the seller (or buyer) makes a bad
faith breach, then the aggrieved party may recover the benefit of the bargain damages.
Example: If the land which was to be sold was actually undervalued, buyer may recover
the difference between K price and fair market value of the land. Kramer v. Mobley.
American Rule (Utah): no difference between the good faith or bad faith breacher. Buyer
gets benefit of bargain no matter what. Smith v. Warr
Damages!: If there are liquidated damages in the contract, then that is what you are
stuck with, cannot ask for more.
Earnest Money vs. Down Payment: In NY, a down payment will be treated as earnest
money and granted to the seller for liquidated damages. Other states will require an
express clause which say that the down payment may be retained as liquidated damages.
However, where down payment grossly exceeds what actual damages really are, then this
will not be enforced. 10% usually thought of as too much.

EQUITABLE CONVERSION
Generally: The doctrine (which says once the executory contract is signed, the buyer
holds equitable title to the land, the seller to the money) can be applied in any court --
probate for example, to determine whether someone has real property (land) or personal
property (money -- post equitable conversion). The doctrine will apply for voting rights
(can count as a freeholder once contract is signed) and for dower. Is also applied when
there is loss due to fire and ice, buyer must bear the loss. The doctrine will not be applied
when there is a rezoning.
Creditor's Rights: If a creditor wants money, brings an equitable action against the
vendor (who has the money after conversion). If want land (and buyer is debtor) then
must bring a writ of fi fa.
Harsh and Oppressive Rule: When equity steps in and says it would be harsh and
oppressive to enforce this contract (i.e. allow for the operation of equitable conversion).
Once the courts determine that it is harsh and oppressive, the contract is unconverted, and
no longer specifically enforceable. Extremely low prices will also not be enforced (if oil
is suddenly discovered while contract still executory)
Rezoning: This is a frustration of purpose. If an executory contract for land sale and
suddenly land is rezoned so no house can be built on it, or no commercial operation,
equity will step in and so no contract. Example: In land for sale contract, seller knew
that buyer bought for purposes of frozen food storage. Land subsequently rezoned, while
contract still executory and no longer able to build commercial plant. Equity blocks the
conversion. Clay v. Landreth.
Death and Wills: Equitable Conversion takes place at time an enforceable contract is
entered into. Once converted, a default on the contract for deed will not un-convert. So
if owner dies while contract for deed still executory and then later is defaulted and
foreclosed, still considered personal property (and not real) for purposes of probate.
Executor will sell it off and distribute accordingly. Or will pass directly by will (all
personal property to my wife). Shay v. Penrose.
Inchoate Dower: Inchoate Dower will block equitable conversion (as the contract will
be deemed not enforceable). This can lead to absurd results.
Specific Enforcement: The contract must be specifically enforceable by both sides for
the doctrine to take effect. If there is inchoate dower, and the buyer is willing to accept
the defect, then can be specifically enforced, using doctrine. However, the seller cannot
seek specific performance when defect on her side. Some defects may be paid off by
seller (lien or mortgage).
Dower: Widow gets dower on an executory contract if most or all of it has been paid off
before husband's death -- only dower as to the % paid. However, if the husband-buyer
assigns his interest (w/o her joinder!) before pay-off and then dies, the widow gets
nothing. If husband-seller enters into the contract before marriage, then widow cannot
claim on it.
Ademption: When the term is stricken out or not honored. Example: I leave 100 shares
of Microsoft to Duke. Before I die, I sell my Microsoft shares and buy Sisco. Duke gets
nothing as sale of Microsoft was adeemed. "I leave B'acre to Sally" and then make a CFD
with someone, die while executory, Sally may end up with nothing. General rule, a
devise of land made after the devisor has entered into an executory contract is construed
as a bequest of rights under the sale's contract -- the devisee to get whatever ends up -- $$
or the land (if a forfeiture). Court will read this as saying "all my interest in B'acre to
Father Flanagan." Father Flanagan's Boys' Home v. Graybill.
No conversion at option: Conversion will not relate back to the offering of the option to
buy, but rather at the time option was accepted. Example: Turner gives an option to buy
certain land to a buyer for 60 days. The land was also devised to Sallie for life in
Turner's will. Turner dies before 60 days and then option contract accepted. Sallie gets
life estate in profits of the property (sale goes through, she gets life estate in interest off
of money). Conversion took place after the death, after Sallie's estate vests, no
ademption. If the CFD had been accepted and completed before time of death, then
Sallie would not have gotten a thing. Turner v. Eddington. English rule calls conversion
at time of option. WAR: this makes no sense as option may not be accepted, there could
be a defect blocking equitable conversion or a rezoning, etc. resulting in an intestacy.
Fire and Ice: Majority Rule. If, while a contract for deed is still executory, there is
damage to the property (no fault) usually the loss will fall on the buyer. The doctrine of
equitable conversion is not blocked by damage to property and risk is allocated to buyer.
Bleckley v. Langston.
Mass. Rule: Until law date, the risk is allocated to the seller and there is a failure of
consideration which will block equitable conversion. In a long term contract, however, it
is unlikely the seller will want to insure as buyer should insure anyway for theft, etc.
Uniform Vendor and Purchaser Risk Act: If seller is still in possession, then she bears
the risk. Possession is key. This is a superior rule.
Insurance: Once you enter into a contract for deed, you have an insurable interest. This
is even without equitable conversion. Insurance should be part of the res bargained for in
K. Otherwise, seller could recover insurance proceeds and still seek specific performance
under the land sale contract, doubly recovering. If the K requires that vendee insure
property, even though seller is beneficiary, the proceeds from policy will be applied to
the purchase price. Raplee v. Piper. However, if either seller or buyer purchase insurance
not connected to the K, then they can recover privately and still demand specific
performance, with risk allocation.
Tenancy by the Entirety: Cannot have a tenancy by the entirety in personal property

THE DEED
Generally: Back in the day, had to use "bargain and sell" or "covenant to stand seised"
in order to raise a use and convey w/o livery of seisin. Now, most states have statutes
which allow for the words "grant" "convey" etc. to be used. However, these statutes do
not replace the old common law means and livery of seisin, bargain and sell or covenant
to stand seised are still valid means and not subject to the requirements under statute (like
two witness signatures, etc. "Lease and release" can also be used. Lease implied
possession so no need for livery of seisin and release then gives over future interest --
back door way of getting out of a livery.
Example: Son conveyed life estate to father, used the words "lease and release" as well
as "honored father" to indicate a covenant to stand seised. However, deed only signed
by one witness and local law required two. Son tries to renege on deed b/c of deficiency
but court recognizes that the statute does not supplant common law and a covenant to
stand seised is not subjected to statutory requirements. French v. French.
Habendum Clause vs. Grant Clause: The grant clause is the part where the grantees
are identified. Grant clause may contain language like "and heirs" which identifies what
type of estate is being granted. The habendum clause usually identifies the quantum of
the estate. Habendum is usually introduced with "to have and to hold" (for life, as f.s.a.).
When they conflict, the maxim of construction/general rule is that the greater estate
passes.
Greater Estates: A fee simple is no greater than a tenancy by the entirety. That simply
reflects the number of grantees, not the quantum of the estate. Grayson v. Holloway. A
fee simple determinable may appear as a conflicting grant and habendum but isn't (To B
and her hairs as long as B remains a U.S. Citizen. Grant clause includes "and heirs"
which looks like a f.s.a., but so long as will rule as "and heirs" may be ambiguous and so
long as is qualifying.
Maxims of Construction: Sometimes maxims of construction may be competing.
a) Four Corners Rule: if ambiguity can be resolved by looking at the instrument as a
whole, this is most preferable.
b) Greater Estate Passes: Courts favor the passing of the greater estate.
c) Law abhors a forfeiture/escheat: prefer to resolve intestacy in favor of a grantee, not
escheat. Townsend.
d) Construe against the draftor: usually an instrument is construed against the interests
of the draftor. However, when the draftor is the grantee, using the maxim that the
greater estate passes results in a conflict of maxims.
Opposite Parol Evidence Rule: In the case of resolving ambiguities in the description
portion of the deed, if the ambiguity is patent, the deed is simply VOID. If the ambiguity
is latent, however (go onto to the land and then discover that the ambiguity exists) then
apply the maxims of construction.
Reformation: Can always bring a deed to an equity court for reformation. With clear
and convincing evidence can show that intent was to have deed resolved in favor of one
or the other. Court will re-write (reform) the defects/ambiguities in the deed.
Escrow Agency: Many land for sale contracts are sold by appointing an escrow agent
(usually escrowee who is agent for both buyer and seller) and have agent hold on to deed
until all money is deposited into escrow account. Delivery in is delivery of the deed to
the agent. Delivery out is when the deed is delivered to the grantee.
Naked Agency Power: A grantee who is given a deed which is signed, but with no
name on it is given the agency to fill in the name, as long as the grantor is alive.
Example: Brother who gives his brother a deed with no name on it is assumed to have
authorized him to fill in any name (including his own) during his lifetime. This would
terminate upon the death of the principal, however, once possession is taken authority to
sign becomes irrevocable. Womack v. Stegner.
Grantee cannot Be Escrowee: There is no implied escrow power in a grantee. If you
hand over a deed to a grantee, it has been delivered. Only way around this is to write in
deed "to anyone but [grantee's name]. Then grantee is agent and has implied power to
deliver to someone else. Chillemi v. Chillemi court allowed for grantee (wife) to also be
escrow agent. Found, though that escrow conditions not met.
Exception to PER/Statute of Frauds: An escrow arrangement is not a contract and not
subject to the statute of frauds so evidence of parol agreement allowed.
Delivery vs. Equitable Conversion: Delivery in can be before equitable conversion.
Escrowee is supposed to clear up title defects (which block equitable conversion until
cleared). So title is dated back to the delivery in date. Dower rights are (however) cut off
by delivery in. If marry after delivery in, then wife cannot elect dower on title.
Allocation of Risk/Bad Escrow Agent: If the escrow agent collects all money, then the
agent's job for seller is over and becomes only agent for buyer. Nothing left to do but
hand over title. If then runs off with the money, the loss is on the buyer. Equitable
conversion occurs at moment of total payment -- so loss on buyer. Val Verde Hotel v.
Ross.
Premature Delivery of Title: A delivery out of escrow which is premature is void. A
title search will rarely show this and so important to buy title insurance. A deed which is
delivered prematurely and then recorded looks good. Even an innocent purchaser is not
protected by a prematurely delivered deed. Clevenger v. Moore.
Fraud: The BFP is not protected by fraud when the seller does not consent to the
delivery (i.e. when the seller is not fooled into consent but rather the escrow agent who is
fooled into early delivery by grantee). If the seller is fooled (fraud on the grantor) then
the BFP is protected. Clevenger v. Moore.

DESCRIPTION OF LAND
Maxims of Construction: When there is a latent defect in a description of land, the
courts will apply the standard maxims of construction, in addition to: 1) disfavor to
creating small strips of land, 2) if last "call" not given, presume a square, 3) when call is
to a road, presumption that land grant is to the center of the road. Example: O grants to
A in f.s. up to a public road. A claims to have the mineral rights up to 1/2 under the road.
O tries to grant out the entire mineral rights under the road and is stopped as presumption
is that f.s. included middle of the road. To rebut the presumption, must state in deed
"excepting the land under the highway" or a clear metes and bounds description up to the
very easternmost border of the highway, etc. Parr v. Worley.
Pecking Order: When there is an ambiguity, b/c the calls in the deed, when you go on
the land, are actually inconsistent, apply the pecking order to determine what was
intended (and then, whether or not you can sue once established that deed conveyed less
than what you paid for). 1) natural objects or landmarks (river); 2) artificial monuments
(fence); 3) bndry line of adjacent owners; 4) courses AND distances (not distinguished).
However, where extrinsic evidence is clear, may override pecking order. Example:
Where deed purported to convey up to fence, but fence was actually in from a boundary
line of adjacent property, court said that deed could only have granted up to boundary
line (so bndry line trumped artificial monument/fence). Prittchard v. Rebori.

TITLE ASSURANCE/RECORDING ACT

Three Types of Statutes:
Pure Race: This is only in North Carolina now. Here, the first to record wins. Does not
matter if the purchaser is a BFP or not. So if O to A, then O to B, then O to C; and B
records first, then B has title to the land. This is closest to the common law first in time
rule (where A would take title, and A's grantee would have title).
Pure Notice: In Notice jurisdiction, the "last con-ee" is the one to end up with title.
Regardless of timing of recordation. BUT, the con-ee cannot take with notice of other
claims or constructive notice. So, O to A, then O to B, then A to C. If B does not record
before C's grant, then C is not on constructive notice of B's claim and C has title. It does
not matter if B then records later. Bouncing around: in pure notice, B can then grant to
D, and divest C of title. As long as B had no notice of O's prior grant to A, B's grantee
can be sheltered. Then C can grant to a BFP, and D is divested, keeps bouncing back and
forth.
Race-Notice: Here, a subsequent purchaser is protected by any prior grants as long as
she takes w/o notice AND records first. This gets rid of the sheltering problem and the
bouncing around. As soon as C records, no subsequent purchaser (from B) can divest
her.
Chain of Title: All titles must be able to "hook up." That is, there must be a prior,
recorded interest in the grantor before the grantor's deed to grantee can be recorded. If
none, then the deed is wild in the deed room and does not convey constructive notice as
against a subsequent purchaser. Abo v. Horvath.
Bad Deeds/Fraud/Failure to Deliver: A deed which is obtained by fraud, not delivered
to the grantee, etc. is void as to the recordation. That is, its recordation does not impart
constructive notice on the BFP. A deed which is not delivered does not actually convey
an interest. Stone v. French. If statute says deed must be acknowledged, and this deed is
not, a sloppy recorder may record but this is not constructive notice on the BFP.
Misindexed Deeds: Split of Authority: A deed which is handed over to the recorder,
but is improperly recorded, is "wild" and does not impart notice on BFP. Some
Jurisdictions hold that it does. Mortenson v. Lingo. Recorders are usually bonded, so the
divested grantee can at least sue the recorder for damages, as well as the original grantor
for unjust enrichment.
Things Outside the Recording Act: Adverse Possession claims, constructive trust,
dower, are all outside the recording act. They are not conveyances but rather interests
created by operation of law. Therefore, a BFP cannot divest one who holds an interest
acquired by operation of law. Example: A has AP claim, which is quieted in her, against
B. B then conveys out, presumably all of land, with no record notice of AP claim, to C.
C must yield to A's AP claim. Probably should ask the neighbors to be sure they have no
prescriptive easement/AP claim etc. Mugaas v. Smith.
Donees: Donees typically are nor purchasers for value. Are they protected by recording
act? Usually no, but what they do get (through will or intestacy) is the power to divest a
prior unrecorded purchaser, by conveying to a BFP. Earle v. Fisk.
Creditors: Typically, creditors are not protected under a recording act, unless the act
specifies that they are. However, like donees, they have the power. So, one who buys
from a creditor (as at a judicial sale) may divest an unrecorded prior interest.
Presumption that creditors do not check the records before extending credit. To rebut and
get in line as a bfp, must show that relied on record before extending credit. Osin v.
Johnson.
Valuable Consideration: Even as a creditor, you must show that you extended credit,
agreed not to sue at all, or extended time to pay off old debt in order to show that you
gave valuable consideration. Cannot accept note w/ land as collateral as satisfaction of
prior debt unless you give new consideration (such as one extra year to pay off,
agreement to drop suit on old debt, etc.) Gabel v. Drewrys.
Inquiry Notice: A BFP is subject to both constructive notice (of a recorded interest) as
well as inquiry notice to go upon the land and make sure there is not someone else in
open possession -- with a claim. Example: A, a prior purchaser, did not record but did
put up "no trespassing" signs with name as well as lived in cabin on land. This was
enough to put BFP on inquiry notice. Wineberg v. Moore. Minority Rule: even if there is
a recorded lease and you go on land and see A, looking like a tenant consistent with
lease, should ask A to be sure that there was not then a later release and transfer and A is
not a tenant but a grantee. However, burden of proof of open possession and claim is on
he who did not record.