Statue of Frauds

A contract for the sale of land must be in writing and signed by the party against who is sought to be enforced, unless
there is some exception available.

- Real Property Provision: Two principle exceptions 1) part performance; and 2) estoppel

o Part Performance: Allows specific enforcement of an oral agreement when particular acts have been
performed by one of the parties to the agreement.
o Estoppel: Foreseeable detrimental reliance upon a promise. Only available to .

Marketable Title

Implied condition in all land sale contracts providing title reasonably free from doubt. The title does not need to be perfect,
but title that a reasonably prudent buy would be willing to accept. Any defect must be substantial and likely to result in
injury to the buyer.
- Encumbrances (i.e. mortgage, judgment liens, easements, or covenants) make title unmarketable.
- Zoning restrictions do not affect marketability of title, unless there is an existing violation.
- Issue arises at closing, a seller, must provide good marketable title at closing.
o A buyer may waive defects in title via land sale contract.
- Buyer Remedy: Buyer must give seller reasonable time to cure the defect (s) even if it requires an extension of
the closing date.
o Buyer may sue for damages, order specific performance, rescind the contract.

Equitable Conversion

If a land sale contract is enforceable, the buyer gains equitable owner where the seller retains legal owner.
- Seller is entitled to possession until closing date.
- Issue arises when the injury/damages/death to either party between the signing of the land sale contract and the
date of closing.
- Risk of Loss: Risk of loss from entering into a land sale contract to the delivery of the deed.
o Majority: holds risk on buyer.
o Minority: holds risk on seller OR party in possession.
o All jurisdictions hold loss against the party who caused the damage(s).
 Any provision within the contract allocating the risk of loss trumps the aforementioned.
- Death of Party:
o If the seller dies after land sale contract before closing: Legal title passes to successors in interest by
intestate succession OR testamentary instrument until closing. Successors accept sale proceeds.
o If the buyer dies after land sale contract but before closing: equitable title passes to successors who may
enforce conveyance at closing.

Duty to Disclose Defects

Common Law: Absent a fiduciary relationship, a seller has no duty to disclose known defects in the property.
Modern Majority: A seller must reveal all latent material defects that: 1) materially affects the value or desirability of the
property; 2) is known to or “within the reach of the diligent attention and observation of the buyer.
Minority: holds liability for fraud or misrepresentation only (buyers beware).

- Doctrine of Caveat Emptor: Common Law and Minority: There is no duty on the vendor to disclose any
information concerning the premises, unless there is a confidential or fiduciary relationship between the parties or
some conduct on the part of the seller that constitutes active concealment.

Doctrine of Merger

In the absence of fraud, a contract is deemed to have merged into the accepted deed and the terms of the deed control.
- Issue arises: if the contract says something different from delivered and accepted deed. When the buyer accepts
the deed, the buyer is deemed to be satisfied that all contractual obligations have been met. Buyer can only sue
on terms of the deed and not the prior contract. If the seller delivers a different deed that what was promised – if
you accept the different deed, the law holds the accepted deed to control since the buyer should have objected.
However, the doctrine does not extinguish portions of the contract that are independent or collateral to the
transfer of title, such as seller’s promise to remove all rubbish from the premises, etc.
Implied Warranty of Quality

Common Law: a builder had no liability to anyone for his poor worksmanship unless he had given an express warranty of
quality Modern Majority: imply a warranty of quality by the builder of a new home that may be enforced by subsequent
purchasers.- Torts Issue

Remedies for Breach of Land Sale Contract (3 types)

1. Damages
2. Retention of the Deposit (Seller) or Restitution of the Deposit (Buyers); OR
3. Specific Performance of the Contract

Deeds: Major difference between each is the scope of the assurances of title the grantor is conveying.
- Valid Deed Formalities:
o Must follow certain formalities to be valid
o FINAL: Multiple Choice
o Issues Tested:
 Description of the land
 Delivery
o 1) Consideration: Is not necessary to transfer. Only required for a grantee that is a bona fide purchaser.
o 2) Description of Land and Parties:
 A deed must identify the land and the grantor and grantee. If the description is ambiguous,
extrinsic evidence is allowed to clarify the ambiguity.
 If the deed is internally inconsistent, incomplete, or mistaken, then the parties’ intent is examined.
If unable to examine intent, courts employ a hierarchy in cases of conflicting descriptions:
 1) original survey markers
 2) natural monuments
 3) artificial monuments
 4) maps
 5) course of direction
 6) common names
o 3) Signed: Must be signed by the grantor or an authorized agent in their presence pursuant to the SOF.
o 4) Sealed: Most jurisdictions have abolished the sealed deed requirement
o 5) Delivered: Deed must be properly delivered (see infra)
- 3 Types of Deed : General Warranty, Special Warranty, Quitclaim Deed
o 1) General Warranty: Warranty against ALL defects in title by themselves and prior holders.
 Contains 6 covenants (Present and Future)
 Sometimes the fact pattern will identify a deed as deed or maximum warranty deed or full
warranty deed – in this instance, the deed presumably contains and warrants all present and
future covenants and thus, is a general warranty deed. When an issue arises having to do with
the type of deed, default to general warranty unless there are facts indicating the grantee is
accepting less than the full benefits.
 6 Covenants: Present and Future
 Present Covenants: 1) covenant against seisin; 2) covenant of right to convey; 3)
covenant against encumbrances
o Breached at the delivery of the deed.
o The SOL begins to run at deed delivery.
o Majority: Present Covenants cannot be impliedly assigned.
o Minority: Allow implying the assignment of the present covenants so long as the
SOL has not lapsed.
 SOL: typically, 10 years.
o 1) Covenant of Seisin: Grantor warrants that he owns the estate that he
purports to convey.
 Look to see if the grantor had title and possession at the time of the gran.
o 2) Covenant of Right to Convey: Grantor warrants he has the authority to
convey the property.
 In most instances, this can be merged with covenant of seisin.
 Did the grantor have a trustee or argent grant the conveyance.
o 3) Covenant against Encumbrances: Grantor warrants there are no
encumbrances on the property (i.e. Mortgages, liens, easements, profits, and
covenants) [Something that attaches to the title of land, that may result in
litigation]
  Was there an existing (easement or encumbrance) on the property when
the grantor conveyed the property to the grantee?
 FINAL: Multiple Choice
 JDX Split: visible v. known easements not included in the deed.
 Majority: Do no hold public easements to be a breach
 Minority: Private easements will only be breached if the land
has diminished in value.
 Future Covenants: Promises that the grantor will do some future act, such as defending
against claims of third parties for compensating the grantee for loss by virtue of failure of
title. A future covenant is not breached until the grantee or his successor is evicted from
the property, buys up the paramount claim, or is otherwise damaged. Future covenants
will always run with the land and the SOL will begin when breached. (3) types: General
warranty, quiet enjoyment, further assurances.
o 1) Covenant of General Warranty: Grantor warrants that he will defend against
lawful claims of superior title and will compensate the grantee for any loss
suffered by assertion of superior title.
o 2) Covenant of Quiet Enjoyment: Grantor warrants the grantee will not be
disturbed in possession and enjoyment by assertion of superior title.
 Similar, if not identical to, covenant of general warranty.
o 3) Covenant of Further Assurances: Grantor promises he will execute any
other documents required to perfect title.
o 2) Special Warranty Deed: Warrants against all defects in title caused by the grantor.
 The grantor warrants against all defect in title that arose during the grantor’s time of holding
title (giving less protection to a grantee). Defects arising before the grantor’s ownership are not
covered. Think of the grantor promising “I have done nothing wrong, and I’m not vouching for any
other previous grantor.”
 If it is within the SOL, any subsequent grantee can sue the grantor despite the fact that
the title has gone through multiple parties, because they are succeeding to the same
interest.
o 3) Quitclaim Deed: Contains NO WARRANTIES of title and operates to convey whatever interest the
grantor may own.
 If the deed contains any warranties, then it’s not a quitclaim deed.
 “You have whatever I have”
 Minority: the mere acceptance of a quitclaim deed extinguishes one’s BONA FIDE PURCHASE
status by inquiry notice.
- Notes:
- A seller who conveyed a parcel by general warranty deed cannot later acquire title by adverse possession
because the future covenants will preclude that from happening.
- For subsequent purposes, if you see someone acquiring property and there is an existing mortgage, determine
whether they assumed the mortgage OR took subject to the mortgage.

Assuming or Subject to a Mortgage

When someone acquires property that is already encumbered by a mortgage, then there are two options.
- Option 1: If the new purchaser assumes the mortgage, they are personally liable.
- Option 2: If the new purchases takes subject to the mortgage, they are not personally liable.
o Once the purchaser makes all payments, they succeed the property in fee simple absolute. MODERNLY:
This would not occur because of an acceleration clause which means any change of title requires the
mortgage to be paid in full.

Estoppel by Deed
If the grantor conveys an interest in property that they do not own, but subsequently acquires the unowned interest, by
operation of law, the after acquired title is sent directly and immediately to the grantee and/or their succession interest.
- Trigger: When someone is selling land they do not own, but later acquire that interest – usually as a
child/grandchild.
- Some courts hold that this doctrine is applicable to quitclaim deeds if the grantor warrants they have title (against
my opinion because any deed demonstrates the grantors probable intent).
- If an issue arises between innocent purchasers who accepted in an invalid interest, the safe approach is to default
with the side of the BFP – if one exists.

Delivery of Deed
When the grantor presently intends to have operative effect.
- Did the grantor harbor the present intent to make an immediate transfer or divorce themselves from title?
 - Did the grantor relinquish absolute and unconditional control?
- 2 types of delivery:
o 1) grantor to grantee delivery; and
o 2) delivery involving a third-party intermediary.
- Delivery does not require physical manual delivery, but only a present intent to transfer title by words or conduct
of the grantor.
- Manual delivery can occur through a grantor’s authorized agent, mail, or the grantors attorney in the grantor’s
presence.
- There is a rebuttable presumption that delivery has been satisfied when the grantee is in possession of a
properly executed deed.
o In CA, the rebuttable presumption is clear and convincing evidence if the grantee records (not tested).
o Extrinsic evidence is admissible to prove lack of intent or conditional delivery.
- There is no requirement that the grantee record the deed for it to be properly executed and delivered.
- A transfer to a third party with instructions to give to a grantee will be upheld so long as the grantor indicated an
intent to make the deed presently operative
o If there is a specified condition attached, the law will not recognize the condition, unless it is addressed
to specific party.
- Example: Grantor A executes a deed naming B as the grantee. A hands over the deed to B and says, “I want you
to hold on to this deed for now until the time comes.” Although A handed the deed to B, there is no evidence that
A harbored the present intent to transfer immediate title.

Mortgage & Security Interest

(2) Types of Transactions:
- Mortgaged: Down payment plus monthly payments with interest); OR
- Installment Land Sale Contracts: Where buyer will acquire title upon full payment.
o Remember: Mortgagor is the person borrowing the money and the mortgagee is the one lending that
property.

Foreclosure
Where the mortgagor’s interest terminates and the property is sold to satisfy the debts.

Title Interest: Who’s entitled to possession in the event of a default? [Same as last year]
- Lien theory: mortgagee can only take possession after foreclosure;
- Title theory: a mortgagee can take possession at any time after default.

Redemption: Any time prior to foreclosure, the mortgagor may redeem the land by paying the debt plus accrued interest.
- Some jurisdictions permit a mortgagor to redeem upon payment of the foreclosure price six months after foreclosure
(designed to deter underbidding).

Priorities upon Foreclosure

A foreclosure sale will destroy all interest holders’ junior or secondary to the senior / first mortgage if notice was given (this
includes easements). Specifically, a junior mortgage has the right to pay it off and save their interest from being extinguished.
However, a junior mortgage cannot foreclose upon a senior/first mortgage. The rational is that the junior mortgage takes
the property as they lent the money. Failing to give a junior interest holder notice of a foreclosure proceeding usually
amounts to preserving their mortgage interest. If a junior mortgage forecloses on the property, a subsequent purchaser
takes subject to the mortgage and remains responsible for payments (a strong economic incentive).
- Senior mortgage will destroy all junior / subordinate if notice was given. Any surplus is distributed to the junior
mortgages (although extinguished).
- A junior mortgage can never foreclose upon mortgage senior. In that instance, the existing mortgage(s) senior
remain and the subsequent purchaser takes subject to.

Modification of Priority
1) Contract or agreement;
2) abiding by recording statutes;
3) modification of the senior mortgage (usually with lower interest rate, consolidation, renegotiations, etc.).

Transfer by Mortgagor
- Subject to the Mortgage: A grantee who accepts subject to a mortgage is not personally or primarily liable to the
loan.
- Assuming the Mortgage: A grantee who assumes the mortgage becomes personally and primarily liable for
repayment of the loan where the mortgagor becomes secondarily liable.
- Acceleration Clause or “Due on Sale”: Allows a lender to obtain full payment of the loan if title to the land transfers.
Installment Land Sale Contract
A contract for the sale of real property obligating the purchaser to pay the purchase price in installments and obligating the
seller to deliver title to the buyer after the purchase price has been paid in full. Buyer assumes responsibility for the taxes
and insurance on the land.

Title Assurance

Recording System: The purpose of recording acts is to place the world on notice that you are title holder to the
property. There are three different types of recording acts which become applicable when two or more persons are
competing over title to the land.
- Types of recording acts: 1) race; 2) notice; 3) race-notice.
- Remember that there is no requirement that a person record, but it’s merely safe to do so.
- Nearly all types of instruments can be recorded – e.g., deeds, mortgages, land sale contracts, lis pendens (notice
of pending action); liens, easements, covenants, and more.

Title Search / Indexing

Recordings act to have two functions:
- 1) it establishes priority in the event of a title dispute between two successive grantees;
- 2) place subsequent owners on notice where the recording is indexed in the public records.
In most jurisdictions, instruments are recorded within counties, and there is no federal recording system. It is important to
note however, that recording is not mandatory but always recommended because it relates to subsequent purchasers.
- Jurisdictions differ in how instruments are recorded and how title searches are examined.
- Recording begins when the grantee presents the deed to the recorder for the county in which the property is located.
The instrument is copied or entered into computer records, and the copy is entered in a bound volume which is kept
chronologically.
- Today, it’s all computer indexed, but you must account of older conveyance prior to computer records.
- As a side note, clerical error is foreseeable and you may not sue the government for the error so most
purchasers hire title examination companies.
- MAJORITY “Grantor-Grantee / Grantee-Grantor Index”: An alphabetical recording of all grantors and all grantees
and is maintained in separate volumes. Anytime an instrument is recorded, constructive notice is imposed by law.
o Example Grantor/Grantee Index:
 On January 1, 2015, John Rogers conveyed Blackacre to Betty Sue by “Warranty Deed” to 987
Little Lane, recorded in Book 101, Page 1515.
 GRANTOR INDEX: ROGERS, John to SUE, Betty on 1/1/2015 …. (Same as above)
 GRANTEE INDEX: SUE, Betty from ROGERS, John on 1/1/2015 … (Same as above)
 A conveys to B. B conveys to C. C conveys to D.
- A grantee is responsible for conducting a title search through the grantor/grantee index. Record notice is implied
and if there is a gap found within a search then the grantee may be charged with inquiry notice that title may be
defective. A grantee is responsible for a search within their own chain of title.
o Minority “Tract Index”
o Tract index simply index by lot, block, or parcel number. All conveyances, deed, mortgages are then
indexed on a page assigned to a particular lot, block or parcel. This method is easier because all entries
affecting a particular tract are located in one place.

Types of Recording Acts

There are three types of recording acts: 1) race; 2) notice; 3) race-notice. This becomes an issue if two or more persons
are competing over title. Generally, the fact pattern will give you the type of jurisdiction, or its statute. However, if the fact
pattern is silent, you must discuss all three.
- 1) Race
- In a race jurisdiction, the earliest to record prevails.
o Race statutes are applicable under the common law and modern minority jurisdictions. Whether a
subsequent or competing purchaser has notice (actual, inquiry, or record) is irrelevant. (“Whoever records
their deed at the clerk’s office gets the property”).
- 2) Notice
- In a pure notice jurisdiction, the last BFP (“bona fide purchaser”) to take without notice prevails.
o It is irrelevant whether the grantee records so long as they were the last BFP. Measure whether the grantee
had notice at the time of conveyance – i.e., delivery.
o In minority jurisdictions, the acceptance of a quitclaim deed extinguishes ones BFP status (inquiry notice)
– this rests upon the idea that a strong suspicion is raised on whether title is perhaps defective.
 o Typical notice statute reads, “A conveyance of an interest in land (other than a lease for less than one year)
shall not valid against any subsequent purchaser for value, without notice thereof, unless the conveyance
is recorded.”
o Remember, the grantee who pays consideration and was the last to accept the deed without notice, wins.
o No requirement for grantee to record
o Bona Fide Purchaser (“BFP”): A BFP is a purchaser who paid valuable consideration and was not
subject to notice (actual, inquiry, record) of any prior unrecorded interest.
 Remember that a purchaser can be a mortgagee but not persons who succeeded to an interest
via being heirs, and gifted conveyances. Valuable consideration must have some pecuniary value
– e.g., usually money but goods and services may suffice.
o Shelter Rule: A person who takes from a BFP prevails as if they were a BFP. (“The grantee is sheltered
under the grantors BFP status”).
 This rule applies even if the grantee took subject to actual notice of any prior unrecorded
instrument. The rational is that the grantor should be able to transfer good title.
o Wild Deed: A wild deed is a recorded deed that is not connected to the grantees chain of title which does
not impart constructive notice.
 The rational is that the grantee cannot feasibly find the recorded instrument (does not place
grantee on record notice).
 Majority view is that you only have notice within your chain of title.
 Under a more expansive minority view, you have constructive notice, not only from your
chain of title, but also other deeds stemming from a common grantor.
- 3) Race-Notice: In a race-notice jurisdiction, the first BFP to record prevails.
o (“No conveyance is valid against any subsequent BFP who has no notice of the conveyance and who has
recorded their conveyance first.”)

Types of Notice (Effects Grantee)

There are two way to charge notice upon a grantee: 1) actual; 2) constructive (record and/or inquiry).
- Actual Notice: Real, actual knowledge of a prior unrecorded transaction.
o Least likely to be tested.
o Think: someone tells the grantee that there is a mortgage on the land or someone else owns the land
differing from who the grantee accepted title from.
o Most exam facts contain, “A took title without actual knowledge of B’s unrecorded interest” – applicable
only to actual notice, but not record or inquiry notice.
o In a land sale contract, one is potentially subject to actual notice until the price is fully paid and title is
transferred
- Inquiry Notice - FINAL
- Where a grantee is bound to make reasonable inquiry and charged what those reasonable inquiries would reveal.
o Inquiry notice is implied in law.
o In a minority jurisdiction, one is charged with inquiry notice when accepting a quitclaim deed.
o Example:
 buying land and seeing someone occupying the land that is supposed to be vacant; or
 a deed referring an earlier deed; or a grantor that is not within your chain of title;
 mistake in chain of title.
o If someone is placed on inquiry notice after deed delivery, then it’s irrelevant.
o Remember: If someone buys property unseen, that does not mean they did not have inquiry notice of
adverse occupancy or a competing interest holder.
- Record Notice - FINAL
- A grantee is charged with record notice of any matter that a proper search of the records would reveal.
o Very commonly tested within essays and multiple choice questions.
o Recall that a wild deed will not subject someone to record notice since it’s outside their chain of title.
o Minority jurisdictions impose constructive notice to the contents of the deeds of adjacent lot owners within
a subdivision stemming from a common grantor.

Recordable Documents
1) Deeds; 2) Leases; 3) Easements; 4) Covenants; 5) Mortgages; 6) Land Sale Contracts.
- Also includes instruments which– directly or indirectly affect titles: 1) judgment liens; 2) tax liens; 3) quiet title
decrees; probation issues; divorce orders;
- Some jurisdiction states where a lease exceeds 1 or 3 years may be extinguished unless recorded.

Judicial Land Use Control

Nuisance
Nuisance falls into the subject category of torts as well as real property. Two types of nuisance: 1) public nuisance; and 2)
private nuisance.
- Private Nuisance
- A private nuisance is a substantial unreasonable interference with another’s use or enjoyment of their property.
o Unreasonableness turns heavily on considerations of gravity and utility.
o Gravity versus utility = harm suffered versus need for it – it’s a balancing test.
o Only owners of the land interfered can bring suit under private nuisance.
o Substantial interference means that plaintiff’s right has been substantially interfered with offensive, or
inconvenience, or annoying to an average/reasonable person – it’s measured objectively, not subjectively
(hypersensitivity of the plaintiff will not suffice).
o Under the next element of unreasonable interference, for plaintiff to succeed, the injury must outweigh the
utility of defendant’s conduct.
o Consider whether defendant has an alternative course of conduct.
- Public Nuisance
- A public nuisance is an act that unreasonably interferes with the health, safety, or property rights of the
community.
o Look for conduct that adversely affects the public as a whole.
o The underlying basis for public nuisance remains the same as private nuisance only private nuisance
turns on a gravity versus utility analysis.
o Public nuisance protects the rights of the public. Since a public nuisance arises from interference with
public rights, any member of the affected public can sue, but usually only if the person bringing suit can
show “special injury” (or “special damages”) – injury or damage of a kind different from that suffered by
other members of the public. (Pg. 803 in casebook).
 Example: Can the opening of a strip club be considered a public nuisance? On its face, probably
not. More facts would need to show crime rate increasing caused by the strip club, or safety is at
issue – make sure it’s not speculative.
 Example: A gas station in a residential neighborhood? Could the effect of commotion, smell of
gasoline, noise, or vehicle congestion be enough to effect the use of enjoyment of one’s land, or
the rights of the community? Could it decrease property values?
- Defenses to Nuisance
o “Coming to the Nuisance”: Under the majority view, the coming to the nuisance doctrine is merely a
factor a court will consider and does not serve as an absolute defense for a defendant.
o Legislative Approval: Approval by the government (city, county, state) is not dispositive that the conduct
of the defendant is not a nuisance but used as a factor.
- Remedies for Nuisance: Plaintiff may sue for damages or seeking an equitable injunction to enjoin defendant’s
conduct.
Lateral & Subjacent Support
These issues are trigger when someone is digging or excavating and plaintiff’s land is damaged. Think of plaintiff’s land
spilling over into defendant’s neighbor land when defendant is digging a pool. Liability can be based on a negligence or
strict liability analysis – covered in torts.
- For the purposes of this class, a strict liability and or negligence analysis is not required but is required within the
essays on the CA bar exam.
- Last tested on essays: February 2014. If this issue were to arise within an essay, always think of discussing
nuisance as well.

- Lateral Support (Side)

- Land ownership includes the right to have land supported in its natural state by adjoining land.
o An adjacent landowner is strictly liable for damage to improved land caused by excavation if the land would
have collapsed in its natural state even if upmost care is used.
o An adjacent landowner is negligent when excavation to improved land contributes to the collapse of the
land.
o For subjacent support, the rules are similar and usually involve mining operations versus excavating – e.g.,
lateral support. Key to the issue: is the adjacent land artificially supported?

- Subjacent Support (Subsurface)

- When mineral or other subsurface rights are severed from the surface ownership, the subsurface owners must
support the surface.

Private Land Use Controls: The Law Of Servitudes

Easements
An easement is the non-possessory interest in the land of another.
- Types: 1) express (grant or reservation); 2) implied (prior use and/or necessity); 3) prescriptive.
- Once you determine the type, then determine who the easement is benefitting, then discuss how the easement is
benefitting.
- Easements are encumbrances on land so they must be disclosed when conveying a general warranty deed.
- Easements may be noticeable upon inspection of a prospective buyer (inquiry notice) and recorded to charge a
prospective buyer with record notice.
- Easement Creation
o 1) Express
o 2) Implied
 Prior Use
 Elements:
o Severance
o Apparent, Existing, Continues
o Reasonable Necessity
o 3) Prescriptive
- 1) Express Easement – writing requirement
- An express easement is a non-possessory interest in the land of another created by a writing complying with the
SOF. (Rule made up).
o Subject to the Statute of Frauds.
o No specific language is required to create an express easement.
o If the servient tenant conveys the easement to the dominate tenant, the easement has been “granted” –
i.e., Express Grant.
o If an owner retains an easement when he or she sells a parcel, the easement is “reserved” – i.e., Express
Reservation.
o An express easement is presumed to be perpetual in duration unless the grant specifically limits the
interests (easement for 3 years).
o Jurisdictions differ when one is creating an express easement in a third party,
 COMMON LAW and MAJORITY do not allow it (may need a strawman);
 MINORITY it’s allowed.
 Remember, an express easement is created expressly by writing, there is no natural or automatic
right.
o Example: Owner owns Lots 1 and 2 in fee simple. Owner conveyed Lot 1 to Bob on condition that Owner
be permitted ingress egress across the northern 10 foot boundary of Lot 1. Owner has an express
reservation easement across Lot 1.
- 2) Implication – No writing requirement
- Two types of easements may be implied (without a writing) by fact or by operation of law. 1) Implied by prior use;
or 2) necessity.
o (2) Types of Implication Easements
o 1) Implied by Prior Use (“Quasi-Easement”) – implied in fact
o A prior use easement is created when 1) severance of title to land initially undivided; 2) an apparent, existing,
and continuing use of one parcel at the time of severance; and 3) reasonable necessity for the use at the
time of severance.
 Looks for facts of old horse trail, hiking trails, dirt roads, old alley – forms of historical / previous
use.
 MINORITY holds that the grantor cannot claim an implied in fact easement since they should have
reserved it expressly.
 MAJORITY holds that an implied in fact easement is created if it’s a reasonable necessity. An
easement is not implied in fact unless the use existed before the parcel was subdivided. There will
never be a writing for an easement by prior use because it’s implied in fact.
 (3) Elements:
 Severance
 Apparent, Existing, Continues
 Reasonable Necessity (Case by Case)
o 2) Strict Necessity (Implied in Law)
o An easement may be implied by way of strict necessity (“landlocked”).
o Another rule: “A way by necessity is implied when a subdivision of land eliminates access to a public road
for one or more of the new lots.
 An easement by necessity terminates when the necessity ceases.
 The servient tenant may decide on the location of the easement so long as the location is of
reasonable convenience to the dominant tenant.
 Think of land being absolute locked – i.e., there is no other way on or off the land. “I must walk/drive
through your parcel to get to the road.”
 Think of someone having to use a utility line or public road.
  If the dominant and servient estate merge, the easement is extinguished.
 Authority today is moving in the direction of “reasonable necessity” versus strict necessity.
 An easement by necessity endures however long it’s necessary.
 Think: necessity to make the land more productive.
 There will never be a writing for an easement by necessity since it’s created by operation of law.
o MINORITY: If access to land would be inadequate, difficult, or costly (not feasible)
o MINORITY: Navigable water is sufficient
o MAJORITY: Strict necessity / no way on or off the property.
- No way on or off the land – the only way to get to the public road
- Land blocked – I need to use your land to get to the road
- When the land is locked by operation of law will create an easement
- When something is in writing you do not stop at writing because there are facts to support the easement – implied
by the facts. – if there is a discussion of easement there is discussion of all easement
- 3) Prescriptive Easement – Adverse Possession minus exclusivity
- Actual, open and notorious, hostile, continues, for a term of years.
o A prescriptive easement is merely adverse possession minus the element of exclusivity.
o If succeeding to an easement by prescription, one only succeeds to what they used (not the land but road
only).
o Also look to see if the grantee is using the path inconsistent with the permission of the grantor – i.e., is the
grantee exceeding the permissible scope ultimately being adverse to the grantor?
o There will never be a writing for a prescriptive easement.
o Continuously happens
- Who Does the Easement Benefit?
o Appurtenant
o An easement that benefits the owner of another parcel. The servient tenant is the burdened owner. The
dominant tenant is the benefitted owner.
 There are at least three sentences to this issue.
 If unclear whether the easement is appurtenant or in gross, default to appurtenant because for
public policy considerations, the easement holder is easier to located versus in gross.
 Appurtenant easements passes with the dominant tenant and any successors regardless of
whether it’s stated in the deed or not.
o In Gross
o An easement that benefits something other than the parcel.
 Ordinarily a corporation, gas company, electric company, cable, satellite, train tracks, placing
billboard on another’s lot, right to swim in swimming pool or lake / pond – i.e., any type of cord,
pipe, wire into one’s house is going to be an in gross easement.
 If the easement is being benefitted by an adjacent neighbor, it’s an appurtenant easement, not in
gross.
 An in gross easement create a personal right to use the servient estate, but that personal right may
be assigned if the parties intend or for commercial or economic purposes.
 Remember that there will only be a servient estate because there is only one parcel involved.
- How Does the Easement Benefit?
o Affirmative
o An easement that gives one the right to do something on the servient estate.
 The opposite is a negative easement which does not exist anymore – instead the parties may have
intended to create a Real Covenant.
 A negative easement restricts what one can do on their own land.
 Common law recognized four types of negative easements:
 1) light;
 2) air;
 3) lateral and subjacent support;
 4) flow of artificial streams.
 May come across some multiple choice questions on negative easements on final exam and CA
Bar Exam.
 As you’re going thru an essay fact pattern, if you see someone attempting to create a negative
easement (explain that a negative easement is not permitted), however what was purported to be
a negative easement may in fact be a valid real covenant or equitable servitude.
- Non-Easements
o License
o Authority to use land of another revocable at will unless consideration and or estoppel are shown.
 A license need not be in writing unless the license is greater than one year, statute of frauds one
year provision.
  If you see facts for an express easement, but there was no writing, then default to a license.
 If you see an attempt to create an express easement but it does not comply with the Statute of
Frauds, default to a license.
 A license does not require further discussion of appurtenant / in gross / affirmative because it’s not
an easement. Licenses are also terminated by sale of the land.
 MINORITY jurisdiction do not recognize equitable estoppel as applicable to irrevocable licenses.
 Think, one cannot rescind the license after the licensee has spent considerable time, resources,
and money on the promise of the licensor.
 For instance, a licensor grants a license on which the licensee reasonably relies to make substantial
improvements to the property – in that instance, equity requires that the licensor be estopped from
revoking the license. (Remember: a license coupled with interest cannot be revoked).
 A license separates a trespasser from one who is permitted.
 If we have an attempt to make an express easement but lack a writing, that means the easement
is not enforceable (as an express easement), so the attempt to create an express easement
becomes a valid license.
 A license may be assignable if the parties intend but generally they are personal in nature and thus
not assignable.
o Profit
o When a holder is entitled to enter the servient estate to remove resources from the land.
 A profit is not an easement but share all the same rules as an easement – i.e., go thru appurtenant
/ in gross & affirmative / negative.
 Typical profits include: sand, gravel, oil, fish, crops, etc.
 Profits are freely assignable.
 It’s unclear from the casebook whether profits must be in writing but it makes more sense that they
should since the holder is extracting material from someone else’s land.
 A profit is considered a non-easement but contains all the same formalities and rules associated
with an easement.
 Most jurisdictions actually hold that if a grantor conveys a profit to a grantee, that in turn creates an
easement without any prior existing use.

- Transferability of Easement
- The benefits and burdens of appurtenant easements pass automatically to assignees of the land to which they are
appurtenant, if the parties so intend and the burdened party has notice of it.
o Where the benefit is in gross, the benefit is not assignable unless commercial in nature or the parties intend.
o Because a commercial easement primarily produces economic benefits and a noncommercial easement
primarily produces economic pleasure, courts reason that transferability of commercial easements is both
efficient and reflects the probable intentions of the parties while rights granted for personal pleasure are
likely to be a product of a personal relationship.
o For instance, a private fisherman transferring his easement to a commercial fishing company – prevents
undue exploitation.
o COMMON LAW prohibited transfers of in gross and profits.
o MODERNLY, easements and profits for commercial purposes are transferable and apportionable to more
than one user.
o Remember, the servient estate is subject to the easement and the transferee becomes the new servient
tenant – this also applies to leases.
o A subdivision of the servient estate leaves each new parcel subject to the easement unless it was located
only on a portion of the servient land.
- Scope of Easement
- When confronted with an issue on an exam concerning overuse or misuse of an easement, remember that the
easement does not terminate but instead plaintiff’s proper remedy is to file an injunction to discontinue the overuse
or misuse.
o Changing Easement Location
o MAJORITY view: Location of the easement cannot be changed without approval from both the dominant
and servient estate.
o Under the MINORITY view, the servient estate may change the location of the easement so long as the
movement:
 1) does not significantly lessen utility (it doesn’t hurt the person with the dominant component); OR
 2) increase burden; OR
 3) frustrate the easements purpose.
o Servient Tenant’s Use
o As the owner of the servient estate, the servient tenant can use the easement in any manner that does not
interfere with the dominant tenant’s use of the easement.
  For instance, A grants an easement to B over A’s property.
 A is free to allow other individuals use the easement over A’s land so long as it does not interference
with B’s use.
o Duty to Repair
o The dominant tenant must keep the easement in repair. The servient estate has no duty to repair for the
dominant estate’s benefit.
 Keep in mind however, in the Torts context, the servient estate holder may be liable under premise
liability.
o Remedies
o The dominant and servient estates each can enjoin the other’s unreasonable use of the easement.
 In some cases, a court will extinguish the easement if the dominant tenant misuses it.
- Termination of Easement
o Expiration
o An easement for a limited time terminates at the end of the period of time.
 Most commercial in gross easements continue indefinitely. Not commonly tested because the facts
must give a time.
o Merger
o When a dominant tenant acquires the servient estate or vice versa, the fee title and easement are merged,
and the easement terminates.
 If the dominante and servient estates merge only temporarily, the easement is suspended for the
duration of the merger but is not destroyed.
 For instance, Lot 1 owner leases Lot 2 for 10 years.
 If merger destroyed an easement, re-separation of the parcels does not revive it.
 However, an implied easement may be created in the appropriate circumstances.
o Release
o (Least likely to be tested). The easement holder may release the easement unilaterally or as part of an
agreement with the servient estate holder.
 A release is generally in writing because it affects an interest in real property.
o Abandonment
o An easement may be extinguished if the easement holder manifests a clear and unequivocal intention to
abandon the easement.
 Non-use of the easement is never enough for abandonment, a person must demonstrate an
intent not to return. (Remember: non-use is never enough – tested all over the CA Bar and Final
Exam).
 In order to establish an abandonment there must be in addition to non-use, acts by the owner of
the dominant estate conclusively and unequivocally manifesting either a present intent to relinquish
the easement or a purpose inconsistent with its future existence.
 Merely expressing a wish to abandon does not extinguish the easement. Very commonly tested.
o Estoppel
o An easement may be extinguished by virtue of the reasonable reliance of the owner of the servient tenant.
 This may be shown by words or conduct of the dominant estate holder. Think, “I promise not to use
this easement again.”
 The servient holder then destroys the easement and the dominant holder maintains use. Or, “go
ahead, build your house over the road, I don’t use it anymore.”
o Prescription
o If a servient tenant unreasonably interferes with an easement for the prescriptive period, the dominante
tenant’s failure to bring a cause of action against him or her within that period will terminate the easement.
o Sale of Servient Estate to BFP
o A sale of the servient estate to a BFP extinguishes the easement.
 To a certain extent however, the notes in the book give examples otherwise in the context of
appurtenant easements underground.
o Condemnation
o If the government is seizing the property, the government is seizing the easement.
 An eminent domain issue. Think of this issue as a government taking – they must provide just
compensation. There is a split of authority regarding whether the holder of the easement is
compensated.

Covenants Running with the Land

Real Covenant
A promise concerning land use that runs with the land. (Better rule would be that it runs with the estate).
- For the burden to bind successor interest, it requires: 1) intent; 2) horizontal privity; 3) vertical privity; 4) notice; 5)
touch and concern; 6) writing.
- If the call of the question is asking for “damages” then it’s a Real Covenant discussion – i.e., damages, money, etc.
- Covenants can be affirmative (promise to do an act) or negative (promise not to do an act).
- Burden to Run

o Intent
o When the original parties intend to bind successors in interest.
 If the fact pattern contains “himself / herself, heirs, successors and assigns” then by virtue of
accepting a deed or agreeing to a contract establishes the parties’ intent to for the covenant to run.
 If that language is not present, then you must circumstantially prove or infer intent.
o Horizontal Privity
o The original parties share an interest independent of the covenant.
 Established by grantor-grantee, mortgagee-mortgagor, and landlord-tenant relationships. Not
normally a big issue on tests.
 Jurisdictions differ on what “shared an interest” means thus it’s open for interpretation.
 This element is only applicable to COMMON LAW and MINORITY jurisdictions; it does not exist in
MAJORITY jurisdictions but you must still discuss it.
o Vertical Privity
o When a subsequent owner succeeds to the entire interest held by an original party to the covenant.
 This element is only applicable to common law and minority jurisdictions; it does not exist in
majority jurisdictions but you must still discuss it.
o Touch and Concern
o The covenant must affect or relate to the land in some manner.
 Discuss how the covenant touches and concerns the burdened land and the benefitted parcel(s).
 Note, there is no formal definition to this element.
 Covenant’s restricting land use always fulfill the touch and concern element because it restricts
what someone can do on their own land – meaning it diminishes their full ability to enjoy their land
as they please.
 This could be a big issue or minor issue.
 If it’s an affirmative covenant such as to “pay money” or a fee, look to see how the money relates
to the land – i.e., does it increase property value? Make the land more desirable? Is the promise
purely personal?
 The question to ask yourself is, “Does the promise connect to the land in some way?”
o Notice
o A subsequent owner must have notice of the covenant (actual, inquiry, or record).
 If a person is a BFP, they will not be held to the covenant.
 MINORITY jurisdictions charge someone with record notice if neighboring deeds contain a
covenant / servitude stemming from a common grantor.
 Additionally, MINORITY jurisdictions charge a successor with inquiry notice by mere acceptance
of a quitclaim deed.
 Note, inquiry notice may be implied based on mere observation of the surrounding area – i.e.,
commonality or uniformity of the structures.
 Owners who are not purchasers are always subject to notice.
o Writing
o A covenant must be in writing to be enforceable.
 Look to see if the original parties reduced the covenant into a writing – e.g., deed or land sale
contract etc.
- Benefit to Run: For the enforcement of the benefit to run, the individual(s) assert the covenant must prove: 1)
intent; 2) Vertical Privity; 3) Touch and Concern; 4) Writing (this element has been disputed in a number of
jurisdictions).
o Intent
o Original parties intended successors to enforce the covenant.
 This is usually fulfilled under the burdened covenant discussion.
o Vertical Privity
o Common law and minority jurisdictions require the benefits of the covenant to run to assignees of the
original estate.
o Touch and Concern
o See Supra.
o Writing
o See Supra.
- Equitable Servitude
- A promise concerning land use that runs in equity.
o The elements applicable to an equitable servitude burden to run are: 1) intent; 2) notice; 3) touch and
concern; 4) writing.
o All elements have been established above – see supra. If the call of the question is asking for an equity
discussion – it’s asking for an equitable servitudes analysis i.e., injunction, prevent, stop, enjoin, etc.
o The benefit elements are: 1) intent; 2) touch and concern; 3) writing – see supra.
- Implied Reciprocal Negative Servitude
- MAJORITY jurisdictions imply equitable servitudes via common scheme and notice.
o This issue is applicable to “negative” restrictions not affirmative. However, for the purposes of this class
and CA Bar Exam, it should be brought up (but shot down). If there is a lake of writing, look to see if you
can implied a negative servitude via common planner scheme in a residential subdivision.
o Think: It’s implied because of a lack of writing; it’s reciprocal because both the dominant and servient estate
holders are equally promising not to do something; it’s negative because it’s a restriction, and it’s a servitude
because it in equity.
o Two elements must be satisfied for an implied reciprocal servitude:
 1) Common Scheme; and
 2) Notice of the Restriction (actual, inquiry, record).
o Intent to Create Common Scheme
o Did the grantor have the intentions to create a common planner scheme in a residential subdivision?
Factors can include:
 1) oral representations to prospective buyers;
 2) posting signs of a restriction or advertising;
 3) majority of the subdivision contains a restriction within deeds.
o Remember that an equitable servitude must exist at the beginning and not after any sales, not retroactive.
Establishing “intent” may be arguable in some supplemental sources – often those sources say “common
scheme”.
o Notice
o Burdened parcel has notice: Actual, inquiry, or record notice.
-
- Equitable Defenses & Termination of Covenants
o Merger: Acquiring the dominant and servient estate

o Release: Formal written release

o Acquiescence: When plaintiff failed to enforce the servitude against other breaches and then seeks to
enforce the servitude against the defendant.

o Abandonment: Where the restriction has been violated by those subject to it with sufficient regularity that
the benefits crated by it are no longer present, equitable relief may be denied.

o Unclean Hands / Laches / Estoppel: These bar enforcement and not terminate the servitude.

 Unclean Hands: A particular lot owner whose lot is similarly restricted and who is himself violating
the restriction.
 Laches: Unreasonable delay in bringing suit causing prejudice.
 Estoppel: Affirmative statements or actions lead the person bound by the servitude to detrimentally
rely on the other party’s apparent waiver of the servitude (estoppel).
o Changed Circumstances
o A covenant will no longer be enforced in equity if conditions have so radically and thoroughly changed
within the area affected that the covenant no longer achieves its purpose.
 Look to see if the neighborhood and surround area’s character has changed over time – i.e.,
residential to commercial.
 Additionally, if local zoning laws allow for instance, commercial structures on a private residential
subdivision, the zoning ordinance is not dispositive of terminating the servitude but rather an
important factor in the analysis.
o
o Discriminatory: Judicial enforcement of a covenant restricting the transfer of property because of race,
creed, color, national origin, or ancestry constitutes state action prohibited by the Equal Protection Clause.

Legislative Land Use Controls: Laws Of Zoning

Zoning is governed by the state’s police power but it’s limited by the Due Process clause of the Fourteenth Amendment, as
well as the Equal Protection Clause and Fifth Amendment applicable when the state exercises it’s taking power. The zoning
scheme efforts to advancement and preservation of the health and safety of the community.
- Euclidian Zoning
- Euclidian zoning identifies land use in a spectrum for higher to lower.
-
- Nonconforming Use
- This issue arises when it was legal when created but it was later zoned out.
- A lawful nonconforming use establishes in the property owner a vested property right that cannot be abrogated or
destroyed, unless it’s a nuisance, abandoned, or extinguished by eminent domain.
o If the effect of a zoning law or regulation is to deprive a property owner of the lawful use of their property, it
amounts to a taking for which they must be justly compensated.
o The right to maintain nonconforming use runs with the land, hence it survives a change of ownership.
-
o Amortization
o A mechanism to abate the nonconforming use is the forced phase-out.
 Zoning administrators, while exercising discretion under the law may specify a period after which
the nonconforming use must cease.
 Majority jurisdictions permit forced phase-outs so long as the amortization period is reasonable as
to the affected nonconforming user.
 Minority holds that forced phase-outs are invalid because it constitutes an uncompensated taking
of property. If nonconforming use is destroyed or abandoned, permission to continue the
nonconforming use terminates.
 The purpose of an amortization period is to give the person their investment back.
 Time period factors include: 1) Amount invested; 2) nature of the use in question; 3) number of
improvements; 4) public detriment caused by the use; 5) character of the surrounding neighborhood.
- Variance
- A variance from the literal restriction of a zoning ordinance may be granted by administrative action if the owner
can show 1) the ordinance imposes a unique hardship; and 2) it will not be contrary to public welfare.
o In other words, think, “It violates the letter of the law, but not the spirit of the law.” Variances are discretionary
and do not have to be given.
o A variance is thus an administrative safety-valve to avoid judicial determinations that the zoning law is
invalid as applied to the particular circumstances.
o Also think, absent the variances, would the land be effectively used or create an undue hardship?
-
- Aesthetic Regulation
- A rule that beauty is in the eye of the beholder and the government has no business imposing their aesthetic
judgments on others.
o Majority holds that aesthetics alone are enough to exercise police power because it protects property
values / government wants to regulate property values.
o Minority holds aesthetics alone are insufficient and requires public health, safety, or public welfare.
o Content based regulation is subject to strict scrutiny – meaning the government must prove necessary to
achieve a compelling state interest.
-
Eminent Domain and The Problems Of Regulatory Takings
-
- Eminent Domain
- The power of the government to take privately owned land for public use.
o In that case, the government must compensate the property owner under “Just Compensation” under the
Fifth Amendment of the Constitution acting under the states through the Fourteenth Amendment.
o Eminent domain requires: 1) taking; 2) public use; 3) just compensation.
o This issue arises when the government is using their police power to divest someone of their property right
by either absolute ouster, partial divestment, or constructively divesting someone.

o Public Use
o Public use must be rationally related to a legitimate public purpose.
 Social economics, health, safety, general public welfare. What is the government aiming to achieve?
Does their effort create a nexus to advancing their purpose?
o Just Compensation
o Entitled to the reasonable value of their land at the time of the taking – i.e., fair market value.
 Emotional attachment or burden is not calculated.
o Taking
 o Any permanent physical occupation by the government requires compensation regardless of any public
use
 Taking the crux of the legal issue in eminent domain cases.
 If the government is merely regulating land then it’s not a taking and therefore need not award
compensation.
 Note however, there is no formula to determine whether the act of the government amounts to a
taking.
 If the per se rules do not resolve the issue of whether a regulation is a taking, a court will conduct
a balancing test and weigh the public benefit achieved by the regulation against the private cost
imposed.
 Denial of all economic benefit will be a taking.
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