PROPERTY OUTLINE

I. Real Property
A. Adverse Possession
B. Justifications:
1. Preventing frivolous claims
2. Correcting title defects
3. Encouraging development
4. Protecting personhood (interest in the land)
C. Elements:
1. Actual possession
a) Must physically use the land as a real owner would, given its
character
(1) Gurwit v. Kannatzer
(a) “Exercised dominion . . . as much as the
character of the property admitted. . ..
[D]epends upon the nature and location of the
property”
2. Exclusive possession
a) Cannot be shared with either the owner or public
3. Open and notorious possession
a) Must be visible and obvious so that if the owner made a
reasonable inspection of the land he would become aware of
it
4. “Adverse and Hostile”
a) Interests must be adverse to owner (conflict)
(1) Van Valkenburgh v. Lutz
(a) NY Adverse Possession Claim:
(i) Protected by closure
(ii) Cultivated or improved
b) State of Mind:
(1) Majority Rule:
(a) State of mind of possessor is irrelevant;
“Connecticut Rule”; claim of right; objective
standard
(i) Tioga Coal v. Supermarkets General
Co.
(a) Hostility is implied
(2) Minority Rule:
(a) Possessor must act in GOOD FAITH

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 (i) NY, Oregon, Colorado
(3) Minority Rule:
(a) Possessor must act with bad faith/ill will
(“Maine Rule”)
(i) Fulkerson v. Van Buren
(a) A person who does not
demonstrate a clear, distinct, and
unequivocal intention to hold a
property adversely for the length
of the statutory period cannot
take title by adverse possession.
(In Alabama)
5. Continuous Possession
a) Must be continuous as is reasonable or would be expected
based on the character of the land
6. Statutory Period
a) Period ranges based on state
b) Tacking
(1) adverse possession periods of two or more
successive occupants may be added together to meet
statutory period. Successive parties in privity (some
reasonable connection between parties, i.e.,
blood/lease)
(a) Howard v. Kunto
(i) Considered continuous ownership
because of tacking; corrected title defect
(beach house)
7. Proving Adverse Possession:
a) Usually arises in 2 situations
(1) Adverse possessor brings quiet title action, OR,
(2) Raises the doctrine as a defense to the original
owner’s attempt to recover possession
8. Disabilities that affect Adverse Possession:
a) Time does not run during disability:
(1) Imprisonment
(2) Minor (until 18)
(3) Lack of mental capacity
(4) Some states also protect:
(a) Military service
(b) Lives in another state

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 b) Majority Rule:
(1) Title owner has a specified limited time period after
disability is removed to act to vindicate their interests
(usually 1-5 years)
c) Minority Rule:
(1) Day to day toll
(a) Time starts running as soon as disability is
removed
d) Limitations on Disability Defense:
(1) Disability must exist at the date of adverse
possessor’s entry on land
(2) No tacking of disabilities
(3) Death of property owners ends all disability

II. Vertical Space

A. Air Space Rights
1. United States v. Causby (1946)
a) “Flights over land are not taking unless they fly so low and
frequent as to be a direct and immediate interference with
the enjoyment and use of the land”
b) Air is a public highway
c) MAJORITY Rule:
(1) Foreseeable use: the landowner owns at least as
much of the space above the ground as he can
occupy or use in connection with the land
(2) Courts found taking in this case because flights
deprived owner of use of land (chicken death)
d) Minority Rule:
(1) Two approaches
(a) Owns title at a set height (i.e. 500 feet)
(b) Owns “up to the heavens”; but aircraft have
easement to travel through space
B. Subsurface Rights
1. Chance v. BP Chemicals (1996) *Ohio
a) Subsurface rights only extend to the subsurface property
that is being trespassed if the trespass actually interferes
with reasonable and foreseeable use of property
(1) Usually need to show some type of damage to
property

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 2. Strict Liability
a) Rights of lateral support
(1) If digging, have to make sure neighbor’s land is not
affected (i.e. house collapse)
b) Subjacent support
(1) Underground water depletion sinks subdivision
III. Water Law
A. Surface Water (Lakes, Rivers, Streams)
1. Three Main Approaches
a) Riparian System:
(1) Water rights are assigned to each landowner whose
property adjoins a watercourse
(a) Reasonable use
(b) Eastern states
b) Prior Appropriation System:
(1) Water rights are allocated to the first person to divest
water for beneficial use
(a) Western states
c) Permit System:
(1) Amount regulated by government
(a) Permit required
B. Ground Water (Underground, Well Water)
1. Three Main Approaches
a) Reasonable Use Approach
(1) Surface owner may use groundwater only for a
reasonable use
b) Correlative Rights
(1) Surface owner is entitled to a proportional share of
the groundwater beneath the land
c) Permit System
(1) Title to groundwater is held by the state; must secure
a permit
d) Rule of Capture (Texas Only)
(1) Sipriano v. Great Spring Waters of America 1999
(a) Surface owner can pump without
restriction/liability absent malice or willful
waste; Texas elects to keep rule of capture,
despite fact that nobody else does so
IV. Owning Personal Property
A. Ways to Own Property (main are first 4)

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 1. Mercantile capture (purchase)
2. Find property
3. Gifted
4. Adversely Possess
5. Inheritance (type of gift)
6. Create it (call it into being)
B. Rule of Capture
1. Pierson v. Post 1805
a) Pierson shot and killed a fox that Post was in pursuit of
b) In order to obtain property (wild animal) it is “acquired by
occupancy only”
(1) Occupancy is obtained by:
(a) Deprive of natural liberty and make escape
impossible (or at least mortally wound)
c) Utilitarian Rule
(1) Useful at larger social level since it would require the
court to rule on less cases (as opposed to if
possession occurred at the moment of pursuit)
2. State v. Shaw 1902
a) Defendant took fish from net
b) The law does not require absolute security against the
possibility of escape
(1) D was found guilty of theft; fish were sufficiently
confined even if a few could escape
3. Capture on developed land
a) The owner has right of capture on his or her own land
4. Domesticated Animals
a) Domesticated animals (animae reverted) are not subject to
the rule of capture and are instead possessions of owners
5. Popov v. Hayashi 2002
a) Famous Barry Bonds 73rd H.R. ball
b) When a person completes a significant portion of the steps
to achieve possession of an item, but is thwarted due to the
unlawful conduct of another, that person is entitled to a pre-
possessory interest of the item.
(1) Gray’s Rule: actor must retain control of the ball after
incidental contact with people and things
(2) Finkelman and Bernhardt Rule: possession occurs
when an individual intends to take control of a ball
and manifests that intent by stopping the forward

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 momentum of the ball whether or not complete control
is achieved
6. Tragedy of the commons:
a) Few incentives to encourage conservatism
C. Found Property
1. Lost Property
a) Owner unintentionally voluntarily parts with property
b) Armory v. Delamirie 1722 (King’s Bench)
(1) Chimney Sweep Son finds jewel
(2) A person who finds a piece of chattel has a
possessory property interest in the chattel, which may
be enforced against anyone except the true owner of
the chattel.
(a) Does not “own”
(3) Note: Stolen property does not make a difference
c) Greatest Rights in Order
(1) Owner------>1st Finder------>2nd Finder
d) Hannah v. Peel 1945 (King’s Bench)
(1) Brooch found at D’s home
(2) A finder (who is not a trespasser or worker hired by
owner) of lost chattel on another’s property has rights
to that chattel superior to the rights of the property
owner. Owner of land possesses anything attached to
or under the surface of the land, but not necessarily
things lying on top.
(3) Bridges: Money found on the floor of a shop was the
property of the finder, not the shop owner, because
the shop owner had no expectation that the money
would be there.
(a) Court sides with Bridges
(i) D had no knowledge
(ii) Brooch was lost
(4) Sharman/Holmes: Possession of land carries with it
possession of all chattels attached to or under the
land.
(5) Pollock: possess things which you have de facto
control
(6) Two exceptions to Hannah:
(a) Owner of land has superior claim against
trespassers

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 (b) Owner of land has superior claim to lost
property found by contractors or workers
2. Bailment
a) Rightful possession of goods by one who is not the owner
b) Bailor
(1) Owner
c) Bailee
(1) Possessor
d) Mutual Benefit of Both
(1) Bailee has a duty to take reasonable care of bailor’s
property
(a) I.e. valet parking
e) Primary benefit of Bailee
(1) Bailee is required to take extraordinary care
(a) I.e. lending a favor
f) Primary benefit of Bailor
(1) The bailee is liable only if the property is damaged
because of gross negligence or bad faith
(a) I.e. asking for a favor
3. Mislaid Property
a) The owner voluntarily and knowingly places it somewhere,
then unintentionally forgets it
b) McAvoy v. Medina 1866
(1) Wallet found in barber shop
(2) One who finds lost property has possessory rights to
it against anyone except its true owner; However, P
had no claim since it was mislaid property, not lost
(a) Wallet dropped on floor: lost
(b) Wallet left on table: mislaid
(i) Policy reasoning:
(a) Wallet given to shop owner in
order to aid the original owner in
relocating the property
c) Benjamin v. Lindner Aviation, Inc. 1995
(1) Mislaid property belongs to the owner of the property
where it was found
(a) I.e. airplane owner
(b) Not a treasure trove
(i) Not long enough time
(c) Not lost

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 (i) Location implied it was hidden with
intent to recover
4. Treasure Trove
a) Owner concealed it in a hidden location long ago
(1) Usually limited to gold, silver, coins or currency
(2) Rarely recognized now
(3) Most courts hold that if its embedded in soil it goes to
land owner
5. Abandoned Property
a) Owner knowingly relinquishes all right/title/interest
b) Haslem v. Lockwood
(1) Manure case
(2) Increasing condition or putting labor into
lost/abandoned property creates a possessory
interest
c) Typically, abandoned property becomes the property of the
first finder
d) Sunken Ships
(1) Salvage Law
(a) Provides finder with a reward but not
ownership
(2) Finders Law
(a) The finder has ownership upon discovery
(3) Abandoned ships within 3 miles of the coast belong to
the U.S.
6. Adverse Possession of Chattels
a) Same requirements of Adverse Possession of Land:
(1) Actual Possession
(2) Exclusive Possession
(3) Open and Notorious
(a) Reynolds v. Bagwell
(i) Violin Case
(ii) Having an object in your home as it
would ordinarily be used counts as open
and notorious
(iii) Affirmative acts of concealment or fraud
(a) Prevents the running of the
statute of limitations
(b) Court held:

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 (i) The “concealment”
(varnish) was after the
SOL and irrelevant
(4) Adverse and Hostile
(5) Continuous Possession
(6) Statutory Period
(a) Often shorter than land (2-6 years)
b) Discovery Rule
(1) Shifts focus from posessor’s to original owner’s
conduct. Owner must pursue the property with due
diligence (constructive knowledge standard)
(a) Diligently pursuing goods prevents SOL from
running
(b) Aids original owner who would have an
impossible time finding the property under
reasonable efforts
(2) O’Keefe v. Snyder 1980
(a) Under the discovery rule, the statute of
limitations on a replevin action begins to run
when the original owner knows or reasonably
should know through the exercise of due
diligence:
(i) The existence of the cause of action,
and
(ii) The identity of the person in possession
of the chattels.
(b) UCC 2-204 could be used as a defense
against O’Keefe
(i) Protects good faith purchasers
(a) Frank could have transferred
good title to Snyder
(ii) UCC 2-204: A purchaser of goods
acquires all title which his transferor had
or had power to transfer except that a
purchaser of a limited interest acquires
rights only to the extent of the interest
purchased. A person with voidable title
has power to transfer a good title to a
good faith purchaser for value. . ..

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 (iii) 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
ordinary course of business.
(iv) Thief-->Intermediary Person--->BFP
(a) The thief sells “void” title to the
bona fide intermediary person.
The bona fide purchaser attains
“voidable” title from intermediary
person. Can be “good title”.
(b) Can bring action against thief and
intermediary, but not purchaser
(v) Fraud-->Intermediary Person/Purchaser
(a) The fraudulent person sells
“voidable title”, which is good is
bona fide purchaser
(b) A person can bring action against
fraudulent party, but not
intermediary
(c) Fraudulent title which is created
out of nothing (forged signature)
is void
7. Gifts
a) Immediate transfer of property rights from donor (person
making the gift) to the donee (person receiving gift) without
any payment or consideration
b) Inter Vivos Gift
(1) Ordinary Gift from one living person to another
(2) Requirements:
(a) Donative intent
(i) The donor must intend to make an
immediate transfer of property
(b) Delivery
(i) The property must be delivered to the
donnee so that the donor parts with the
dominion and control
(ii) Gruen v. Gruen
(a) Father gives son painting, but
keeps at his house

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 (b) A gift will be valid when the donor
retains a life estate in said gift,
because an irrevocable transfer
occurred, granting the donee the
right to the gift once the life
estate terminates.
(c) “. . . correct test is whether the
maker intended the [gift] to have
no effect until after the maker’s
death, or whether he intended it
to transfer some present
interest.”
(iii) Types of Delivery
(a) Manual
(i) Physical transfer
(b) Constructive
(i) Transfer of an object that
provides access to the gift
(ii) I.e. key
(c) Symbolic
(i) Physically transfers to the
donee an object that
represents or symbolized
the gifted item
(ii) I.e letters
(iv) Adequacy of Method Delivery
(a) As perfect as the surrounding
circumstances (nature of the gift
and the parties) may permit
(c) Acceptance
(i) Donnee must accept the item
(a) Acceptance of valuable property
is usually assumed
c) No consideration paid, no contract made
d) Promise to make a gift in the future is unenforceable without
some form of consideration
e) Generally, gifts cannot be revoked
(1) Conditional gifts
(a) Albinger v. Harris
(i) Tumultuous relationship: wedding ring

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 (ii) The court held: An engagement ring is
considered a complete and irrevocable
gift once the elements of intent to give,
voluntariness, and acceptance of the gift
are met. (not the majority opinion)
(iii) Majority: ring is a conditional gift that
can be revoked if the engagement is
broken
(a) Marriage is an implied condition
(b) No fault
(i) Gift can be revoked
regardless of who ended
the engagement
(c) Fault
(i) The gift can only be
revoked if the donor was
not at fault
(iv) Minority: might be considered an Inter
Vivos gift if given on a holiday or
birthday
f) Gift Causa Mortis
(1) Requirements:
(a) Donative Intent
(b) Delivery
(c) Acceptance
(d) **Donor’s anticipation of imminent death
(i) Brind v. International Trust Co
(a) There is not gift causa mortis if
the donor dies not of the illness
or peril that she feared when
making the gift, but of some other
illness or peril.
(b) In some jurisdictions, gift causa
mortis is still effective even
though the donor does not die
from the contemplated peril is
(i) The death occurs within
the same approximate
time frame; or

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 (ii) The cause of death is
related to the anticipated
peril
(2) If a donor recovers, gift is automatically revoked in
most states
(a) Some states do require donor to expressly
revoke
(3) Can a person contemplating suicide make a valid gift
causa mortis
(a) Old case law: no
(b) Newer case law: yes
(4) Disfavored in most jurisdictions because of fraud
potential
(a) Required to be established by clear and
convincing evidence
(b) Delivery element applied more strictly

V. ESTATES AND FUTURE INTERESTS

A. Freehold Estates
1. Fee Simple (Fee Simple Absolute)
2. Defeasible Fees
a) Fee Simple Determinable
b) Fee Simple Subject to a Condition Subsequent
c) Fee Simple Subject to Executory Limitation
3. Fee Tail
4. Life Estate
B. NonFreehold Estates
1. Leaseholds
a) tenancy for a fixed period of time [Terms of Years Tenancy]
b) tenancy for a renewable period of time [Periodic Tenancy]
c) tenancy at will
d) tenancy at sufferance
C. Important Language
1. Alienable
a) It can be sold or given away during the owner’s lifetime
2. Deviseable
a) It can be transferred by will at death
3. Descendible

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 a) It can pass by the law of intestate succession if the owner
dies without a will
D. Transfer of Real Property
1. Transfer by Deed
a) Convey or Grant
b) Grantor and Grantee
2. Transfer by Will
a) Devise
b) Testator/Testatrix and recipient is Devisee
3. Transfer by Intestate Succession
a) Descend
b) Recipient is heir

E. Fee Simple Absolute

1. “Owner to A and his heirs”
a) Common law language necessary to transfer fee simple
(otherwise would be a life estate)
b) No future interest is created
2. Modern Day Fee Simple Terminology
a) Owner to Person X
b) Owner to Person X and her heirs
c) Owner to Person X forever and ever
d) Owner to Corporation X, its successors, and assigns
F. Intestate Succession
1. Issue and Surviving Spouse
a) Divided by statute between spouse and children
2. Parents and Their Issue
a) Distributed to parents, if living, and if not to any children of
the parents
3. Ancestors and Collateral
a) Estate will go to any surviving ancestors or other blood
relatives
4. Escheat
a) If no living relatives, the estate will revert to the state

G. Life Estates
1. “Owner to A for life”/”Owner to A for life, then to B”
2. Lasts for the duration of the life tenant’s life
3. Can be sold, but cannot be devised (sell the life estate but not the
property itself)

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4. Create a future interest in the form of a reversion or remainder
a) Owner to A for life, then B
(1) A : present interest in life estate
(2) B : future interest, remainder interest (in fee simple
absolute)
5. White v. Brown 1977
a) Home left to sister in law via holographic will “to live in and
not to be sold”
b) When terms of a will are ambiguous, wills will be interpreted
to pass a fee simple absolute
6. Restraint upon alienation
a) Disabling restraint: A restraint that prevents the
transferee from transferring her interest;
(1) Example: O conveys “to B, and any
conveyance by B is void”
b) Forfeiture restraint: A restraint that leads to a
forfeiture of title if the transferee attempts to transfer
her interest;
(1) Example: O conveys “to B, but if B ever tries to
sell the estate, then to D.”
c) Promissory restraint: A restraint that stipulates that
the transferee promises not to transfer her interest;
(1) Example: O conveys “to B, and B promises
that she will not sell the estate.”
d) Courts do not like to enforce or interpret deeds to have these
types of restrictions, normally strike out of wills (cannot
meddle with full ownership)
7. Woodrick v. Wood 1994
a) Wood had life estate and remainder interest was 50/50 son
and daughter
(1) Wanted to remove dilapidated barn (daughter
refused)
(a) Issue of “waste”
b) A court may enjoin a property holder from taking action on
real property burdened by a future interest in order to
prevent waste.
c) Traditional Common Law Doctrine of Waste
(1) A life tenant may use the real property for present
purposes as a reasonable owner would, but is not
permitted to commit waste.

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 (2) Traditionally, this obligation not to commit waste
required that the life tenant had a duty to:
(a) repair the premises,
(b) pay the property taxes,
(c) maintain insurance on the property,
(d) avoid harming the property or making major
alterations of any kind
d) Modern Day Approach to Doctrine of Waste
(1) As a general rule a life tenant may make major
alterations without those changes necessarily
constituting waste
(2) Only actions that cause a decrease in value constitute
waste
e) Types of Waste
(1) Voluntary waste: results from an affirmative act that
significantly reduces the value of the property (e.g.,
demolishing a valuable house).
(2) Permissive waste: results from failure to take
reasonable care to protect the estate (e.g., failing to
make minor repairs or to pay property taxes).
(3) Ameliorative waste: results from an affirmative act
that leads to a substantial change in the property and
increases its value (e.g., building a swimming pool).
Courts ignore/removed from common law.
f) Doctrine of Waste:
(1) Open Mines Doctrine – The general rule is that
minerals can be extracted from the property by the life
tenant even though doing so reduces the value of the
property in question if the minerals were being
extracted when the future interests were created.
(2) Mature Trees – the general rule is that mature trees
may be cut and sold by the life tenant if the removal of
the trees is consistent with good forestry practices.
H. Fee Tail
1. “To B and the heirs of his body”
2. Can only transfer through linear inheritance in the family
a) Only in Delaware, Maine, Massachusetts, and Rhode Island
3. Modern Approaches to Fee Tails
a) Majority Rule – Fee Tails are prohibited and converted into
fee simple absolutes

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 b) Minority Rule – Fee Tails are still recognized but easily
disentailed
c) Minority Rule – Fee Tails are honored for one generation but
no further with the first heirs of the body receiving a fee
simple absolute rather than an entailed estate
4. Disentailing the tail – holder may easily convert this estate into a
fee simple by an inter vivos transfer to another person

I. Fee Simple Defeasible

1. Ownership subject to a future event
2. Three main types:
a) Fee Simple Determinable
(1) “O conveys to G and her heirs until Alaska secedes
from the United States.”
(2) “Automatic termination” of the fee simple with
occurrence of event condition
(a) Termed “possibility of reverter”
(3) Words: “so long”, “until”, “while” (words of duration)
(4) Future interest retained in the grantor/retained by
heirs of the grantor
(5) Marenholz v. County Board of School Trustees of
Lawrence County 1981
(a) A person who holds a “right of re-entry for
condition broken” must take steps to reclaim
the property after the condition has been
broken in order to secure title in the land.

b) Fee Simple Subject to Condition Subsequent

(1) “O conveys to G and her heirs but if Alaska secedes
from the United States, thenO has the right to re-enter
and reclaim the land.”
(2) Estate “may be” terminated by the holder of future
interest when event occurs
(a) Termed “right of entry” or “power or
termination”
(3) Words: “but if”, “on condition that”, “provided that”
(4) Future interest retained in the grantor/retained by
heirs of grantor
(5) Metropolitan Park District v. Unknown Heirs of Rigney
1965

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 (a) After the breach of a condition subsequent, the
grantor’s right to declare forfeiture expires if he
fails to exercise it within a reasonable time.

c) Fee Simple Subject to an Executory Limitation

(1) “O conveys to G and her heirs so long as Alaska does
not seceded from the United States, then to M and
her heirs.”
(2) Words: “during”, “so long as”, “unless”, “untill”, “while”,
“but if”, “on condition that”
(3) Automatic termination and transfer with occurrence of
event
(a) Termed: Springing or Shifting executory
interest
(4) Future interest created in and retained by third party

J. Future Interests

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 1. Reversion: A transferor retains a reversion when she conveys a
smaller estate than the one she has. Life estate; term of years
2. Possibility of Reverter: The possibility of reverter is the future
interest retained by the transferor who holds a fee simple absolute,
but conveys a fee simple determinable.
3. Right of Entry: The right of entry is the future interest retained by
the transferor who holds a fee simple absolute, but conveys a fee
simple subject to a condition subsequent.
K. Remainders
1. A future interest in a transferee that
a. is capable of becoming possessory immediately upon the
expiration of the prior estate
i. “to A for life, then to B”
ii. “to A for life, then to B for life”
iii. “to A for life, then to B if B becomes president”
b. does not divest (or cut short) any interest in a prior
transferee
i. NOT “to A for life, but if B becomes president, to B”
2. Types of Vested Remainders
a. Indefeasibly Vested Remainders (also referred to as a
vested remainder)
i. Ascertainable person

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 ii. Not subject to a condition precedent other than
natural termination of prior estate
iii. “to A for Life, then to B”
b. Vested Remainders Subject to Divestment
i. Subject to a condition subsequent
ii. “to B for life, then to D, but if D does not survive B,
then to E.”
c. Vested Remainders Subject to Open
i. Vested remainder held by one or more living
members of a group or class that may be enlarged in
the future
ii. “to B for life, then to D’s children”
iii. The “Rule of Convenience” for Vested Remainders
Subject to Open
1. When a remainder is granted to a class that
may increase in size, the court will allow the
class to increase until the interest becomes
possessory. Under “the rule of convenience,”
the courts will close the class when any
member becomes entitled to distribution or
possession.
a. “To A for life, then B’s children”
b. When A dies, the property will be
distributed to B’s existing
c. children
d. If B has more children later, they will not
receive a share of the estate.
d. Contingent Remainder
i. Given to an unascertainable person, or
ii. Subject to a condition precedent.
1. “to B for life, then to the heirs of D.”
a. compared to “to B for life, then to the
children of D.”
2. “to B for life, and then to D if D becomes
president.”
a. Compared to “to B for life, then to D,
unless D becomes president.”
e. Condition Precedent or Condition Subsequent
i. “The distinction between a condition subsequent and
a condition precedent in many instances is purely one

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 of form, a verbal divide, rather than a substantive
difference between a condition precedent and a
condition subsequent.”
ii. Tests formulated by courts focus upon the order and
form of language rather than on the operative
requirements for possession:
1. As a general rule, a transferor creates a
condition precedent merely by placing a
condition in the same phrase or clause as the
conveyance.
2. But if, after words giving a vested interest, a
clause is added divesting it, the remainder is
vested [and a condition subsequent is created]
L. Executory Interest
1. A future interest in a transferee that must divest another estate or
interest to become possessory
a. Springing Executory Interest
i. Divests the transferor
1. “To A and her heirs ten years from now.”
b. Shifting Executory Interest
i. Divests a transferee
1. “To A and her heirs until Alaska secedes from
the United States, then to B and her heirs.”
M. Examples:
1. O conveys “to C for life, then to D and his heirs if D lives to the age
of 30.”
a. Present Interest: C has a life estate.
b. Future Interest: D has a contingent remainder in a fee
simple.
c. Future Interest: O has a reversion
2. O conveys “to E for life, then to F’s children and their heirs.”
Assume F has never had children.
a. Present Interest: E has a life estate
b. Future Interest: F’s children have a contingent remainder in
fee simple. (unascertainable)
c. Future Interest: O has a reversion.
3. O devises “to G for life, then to H, but if H does not survive G, then
to I.”
a. Present Interest: G has a life estate.

21
 b. Future Interest: H has a vested remainder in a fee simple
subject to divestment
c. Future Interest: I has a shifting executory interest.
4. O conveys “to J for life, then to K for life, then to L’s children.”
Assume that L is alive and has one child, M.
a. Present Interest: J has a life estate.
b. Future Interest: K has a vested remainder in a life estate.
c. Future Interest: L’s children have a vested remainder subject
to open.

VI. Rules Furthering Marketability

1. Rule in Shelley’s Case
a. If a freehold estate is given to a person and, in the same instrument, a
remainder is given to the heirs (or the heirs of the body) of that person,
she takes both the freehold estate and the remainder.
i. “To B for life, then to B’s heirs”
1. B’s two interests merge and B becomes holder of a fee
simple
ii. Must be:
1. One instrument
2. Creates a freehold estate in the transferee
3. A remainder in that transferee’s heirs (or heirs of hi/her
body),
4. AND, both interests are legal and equitable
2. Doctrine of Worthier Title
a. If a grantor creates a remainder or an executory interest in his own heirs,
the grantor retains a future interest in himself rather than creating a future
interest in those heirs.
i. “O to B for life, then to O’s heirs”
b. The doctrine applies where:
i. A conveyance (transfer by living person via deed not a devise/will)
creates a remainder or executory interest in the grantor’s heirs
3. Doctrine of Destructibility of Contingent Remainders
a. Any contingent remainder that has not vested at the termination of the
preceding freehold estate is destroyed.
i. “To B for life, then to C if C becomes a lawyer”
b. Doctrine applies if there is:
i. A contingent remainder
ii. AND, the contingent remainder does not vest before the preceding
freehold estate ends

22
4. Rule Against Perpetuities
a. No interest is good unless it must vest, if at all, no later than 21 years after
some life in being at the creation of the interest.
i. “No (1) contingent remainders; (2) executory interests; (3) vested
remainders subject to open; or (4) right to purchase or of first
refusal are valid unless they either must vest or forever fail within
the perpetuities period. The perpetuities period starts at the
moment of creation of interest. (e.g., delivery or a deed or death of
testator for a will).
ii. Perpetuities Period
1. Perpetuities period is measured by adding 21 years to date
of the last individual who was alive when the interest was
created.
2. The “life in being” must have been alive or conceived at the
creation of the interest.
b. The RAP applies to:
i. Future interests
1. Contingent remainders
2. Executory interests
3. Vested remainders subject to open
a. Applies to rights to purchase property and rights of
first refusal, which are generally classified as
executory interests.
ii. DOES NOT APPLY
1. Freehold estates
2. Future interests in grantor
3. Indefeasibly vested remainders and vested remainders
subject to divestment.
c. Example
i. O conveys “to C if anyone finds a cure for cancer”
1. Cure could happen years after all parties dead – void when
created
ii. O conveys “to C if C finds a cure for cancer”
1. Will certainly succeed or fail by the time of C’s death- valid
d. How to Analyze the RAP
i. Identify the contingent interest
ii. List the lives in being
iii. Imagine that the transfer takes place
iv. Consider whether anyone can be born who might affect vesting
v. Kill off all the lives in being at a future date, and add 21 years

23
 vi. Is there any possibility that the contingent interest will vest after that
point?
e. Classic RAP Traps
i. “The Unborn Widow”
1. “To B for life, then to B’s widow for life, then to B’s children
living at B’s widow’s death.”
a. the widow could be born after the transfer and
therefore is not a life in being
ii. “the Slothful Executor”
1. “To B for life, then to C, when B’s will is probated.”
a. Probate may not be completed for more than 21 years
iii. “The Fertile Octogenarian”
1. “O conveys to my children for life, then to my grandchildren.”
2. O is 80 years old
a. O may have another child after the conveyance
f. Considerations:
i. Grandchildren typically trigger RAP issues
1. But if time period is 21 years or less, there may not be a
RAP issue
a. O devises “to my grandchildren who reach age 21”
b. No RAP issue
i. By O’s death we will know all of O’s children,
each child will be a life in being
ii. So, the grandchildren will with certainty wither
reach age 21 or not by the end of the lives in
being
ii. Pay attention to “devise” or “convey”
1. O conveys “to my grandchildren who reach 21”
a. There IS a RAP Problem
i. After the transfer, O may have a new child
1. Issue aligns with what happens in fertile
octogenarian situations
2. The new kid may/may not have a kid in
the time period to reach 21 years of age
a. Too uncertain
iii. Examples
1. O devises “to City, but if the land is not used as a school,
then to H and her heirs.”
a. There is a RAP problem here.

24
 b. The City has a fee simple subject to a condition
subsequent. H has a shifting executory interest
because H will cut short the City’s ownership if the
condition occurs.
c. H is our life in being. We can imagine that
immediately after the transfer H has a child, after
which H dies. The City might use the land as a school
for more than 21 years before we know whether or
not the land will go to H’s heirs.
2. O conveys “to D provided that if it ceases to be used as a
church, then to G if he is living.”
a. There is no RAP problem
b. G is a life in being, and at the time of his death we will
know whether or not D ceased to use the land as a
church.
3. O conveys “to B for life, then to M if M lives to be age 50.”
a. No RAP problem here
b. M has a contingent remainder in a fee simple. M is a
life in being at the time of the transfer, and we will
know within his lifetime whether or not he will live to
be 50.

g. Modern Reformations of RAP

i. Wait and See Approach
1. Widely adopted
2. An interest is void if it does not actually vest within a “life in
being plus 21 years”
ii. Uniform Statutory Rule Against Perpetuities
1. Widely Adopted
2. An interest is valid if it satisfies the common or if it actually
vests within 90 years after its creation.
iii. Cy Pres
1. Court rewrites the language so that the future interest no
longer violates the common law rule in order to honor the
transferor’s presumed intent
a. The rewriting should be “as near as possible” to
transferor’s intent
i. I.e. changing 30 years to 21 years to allow to
go to grandchildren

25
VII. Selling Real Property
1. Steps in a sale of Real Estate
a. Purchase Contract
i. Parties negotiate and sign an agreement
b. Closing
i. Full performance of the contract by all parties
c. Title Protection
i. Buyer protects title through title search and insurance
2. Purchase Contract
a. Statute of Frauds
i. In Writing
ii. Essential Terms of Contract
1. Identity of parties
2. The price
3. Property description
a. PLSS: Public Land Survey System
i. Prominent out west
b. Metes and Bounds
i. Local landmarks change over time
ii. Prominent East (including TN)
c. Subdivision Plat Map
i. Tract of land is subdivided into lots
iii. Signed by the party sought to be bound
b. Doctrine of Part Performance
i. Must meet all 3 criteria
1. Buyer takes possession
2. Buyer pays at least part of the purchase price
3. The buyer makes improvements on the property
ii. TN has rejected this doctrine
c. Doctrine of Equitable Estoppel
i. One party acts to his detriment in reasonable reliance on another’s
oral promise
ii. AND, serious injury would result if enforcement is refused
1. TN has adopted only in extraordinary cases
iii. Hickey v. Green
1. An oral land-transfer agreement may be specifically
enforced, even though it violates the Statute of Frauds, if the
party seeking enforcement detrimentally relied on the validity

26
 of the contract and injustice can be avoided only by specific
performance.
d. Marketable Title
i. Marketable title is title that is free from reasonable doubt as to its
validity such that a reasonable purchaser who had complete
knowledge of all the relevant facts and the legal consequences of
those facts would be willing to accept the title at fair market value
without fear of litigation related to the validity of the title.
1. Does not have to be perfect title
ii. Lohmeyer v. Bower
1. The purchaser of real property may chose to cancel the sale
if the title is found to be unmarketable
e. Unmarketable Title
i. Typical Conditions:
ii. Seller’s interest is less than what they purport to sell
iii. Property is subject to an encumbrance
1. I.e. lien
iv. there is a condition on the property that would subject the
owner to suit to remove the condition
1. I.e. property violates a zoning law
v. The owner’s title is subject to claim for adverse possession
vi. Creditor has a lien on the property
vii. Does not mean owner cannot sell- just requires disclosure
viii. Right of Rescission
1. Buyer can back out of the agreement to purchase property
before closing if the seller cannot correct the defects before
closing
2. Only available before closing; would have to rely on post-suit
actions after closing
f. Equitable Conversion
i. Brush Grocery Kart, Inc. v. Sure Fine Market, Inc.
1. Hail storm causes damages
2. In a sale of real property, the risk of loss is only transferred
to a vendee after signing a sales contract, if the vendee is in
possession of said real property at the time the contract is
executed.
g. Risk of Loss in Conveyances of Real Property
i. Majority Rule Doctrine of Equitable Conversion
1. Risk of loss allocated to the purchaser as the equitable
owner of the property

27
 a. Contract binds person to take possession
ii. Minority Rule termed “The Massachusetts Rule”
1. Risk of loss allocated to the seller as the present holder of
title
iii. Minority Rule but Modern Trend
1. Risk of loss allocated to party with legal right to possession
of the property
iv. Post Sale Agreement/Pre Closing
1. Risk of loss can be explicitly outlined in the contract terms
h. Duty to Disclose
i. Traditional Common Law Rule
1. “Caveat Emptor” : “Buyer Beware”
a. Seller has NO duty to disclose
b. Exceptions
i. Seller affirmatively misrepresented the
condition of the property
ii. Actively concealed the defects
iii. Owed a fiduciary duty to buyer
ii. Modern Majority Rule
1. Resident real property seller is obligated to disclose
a. Material defects that seller is aware of
b. That are not known or readily discoverable by a buyer
2. Material defect
a. Substantial defect; reduced property value
iii. Strawn v. Canuso
1. Off-site toxic waste dumping site
2. A professional seller of residential real estate, or a broker
representing that seller, has a duty to disclose to a
prospective buyer off-site conditions that materially affect the
value or desirability of the real estate.
3. The Closing
a. Statute of Frauds requirements for deeds
i. In writing
ii. Contain essential terms
1. Identity of grantor and grantee
2. Description of the property
3. Words showing intent to convey title
iii. Signed by grantor
b. Delivery of Deed
i. The grantor must:

28
 1. Intend to immediately transfer an interest to the grantor
2. And, provide some objective manifestation of that intent
ii. Rosengrant v. Rosengrant
1. A property transfer is only valid if the transferor intends for
the transfer to take effect immediately upon delivery of the
deed.
c. Death Escrow and Beneficiary Deed
i. Death Escrow Deed
1. If the delivery (surrender of ownership) is irrevocable, most
jurisdictions allow for the creation of an escrow where the
escrow agent is instructed to deliver the deed upon death
a. Vasquez v. Vasquez
i. Delivered to third party attorney
ii. If a grantor actually delivers a deed to a third
person and, without reserving a right to recall
it, instructs the third party to deliver it to the
grantee upon the grantor’s death, delivery is
complete
ii. Beneficiary Deed
1. “Transfer on death”
2. Only difference is the deed is revocable during the lifetime of
the grantor
a. Only recognized in a few jurisdictions
d. Traditional Mortgages versus Deeds of Trust
i. Mortgage
1. Two Party Relationship
a. Mortgagor (the borrower)
b. Mortgagee (the lender)
2. Title Theory
a. Mortgagee (lender) holds the title to the property until
the loan is paid off
i. Traditional remedy:
1. Power of sale; non judicial foreclosure
3. Lien Theory
a. Majority
b. Mortgagor (borrower) has title to the property, but
mortgagee has lien on the property
i. Traditional remedy: judicial foreclosure
ii. Deed of Trust

29
 1. 3 Party relationship where mortgagee gives title to a trustee
through a deed of trust for benefit of mortgagor
a. Trustor (borrower)
b. Trustee (holder of deed)
i. Not an actual “trustee”; more of an agent, no
fiduciary duty
c. Beneficiary (the lender)
2. Remedy
a. Non Judicial Foreclosure (sale by trustee)
3. Wansley v. First Nat’l Bank of Vicksburg
a. The sale of real estate by a trustee of a deed of trust
will be upheld and accepted for deficiency judgment
purposes if the sale is commercially reasonable in all
respects
iii. Setting aside a foreclosure sale
1. General Rule: Mere inadequacy of the foreclosure sale price
will not invalidate a sale, absent fraud, unfairness, or other
irregularity.
a. Favors the bank to promote continuation of lending
2. Where the sale price “shocks the conscience” or is “grossly
inadequate”, courts will set aside the foreclosure sale
3. Generally speaking, sale at more than 20% of market value
will not generally be considered “grossly inadequate”.
4. Commonwealth v. Fremont Investment & Loan
a. Loans featuring the following characteristics are unfair
under Massachusetts law:
i. Adjustable rate mortgage loans with an
introductory rate period of three years or less;
ii. Loans that feature an introductory rate for the
initial period that is at least three percent below
the fully indexed rate;
iii. Loans that are made to borrowers for whom
the debt-to-income ratio would exceed 50
percent if the lender measures the borrower’s
debt by the monthly payments that would be
due at the fully indexed rate rather than under
the introductory rate; and
iv. The loan-to-value ratio is 100 percent, or the
loan features a substantial prepayment penalty

30
 or a prepayment penalty that extends beyond
the introductory rate period.
e. Installment Land Contract
i. Different than mortgage
1. Seller maintains title
2. Default: foreclosure and resale (not take possession)
ii. Terms of Contract
1. The Buyer (vendee) signs contracts to make payments
2. The seller (vendor) retains title to the property until all
payments are made (then vendor transfers title)
3. If the seller fails to make payments, the seller regains
possession of the property and retains all payments made by
the buyer
f. Specific Performance
i. An equitable court-ordered remedy that requires precise fulfillment
of a legal or contractual obligation when monetary damages are
inappropriate or inadequate, as when the sale of real estate or a
rare article is involved.
1. Not an available remedy if:
a. Performance is impossible
b. A legal remedy is adequate to address the injury
c. Performance would cause undue hardship to the
defendant
ii. Giannini v. First Nat’l Bank of Des Plaines
1. Condo was never legally deemed a “condo” because sellers
would lose money
a. Absent oppression or fraud, a buyer of real property is
entitled to a specific performance of a valid contract
for the sale of real property as a matter of right.
b. Specific Performance enforced because no undue
hardship to developers (just made a bad bargain) and
enforcement was not impossible (property was
currently a rental)
4. Title Protection
a. Methods of Title Insurance
i. Title Covenants
ii. Title Opinion Based on Search of Public Records
iii. Title Insurance
b. Title Covenants

31
 i. A promise/warranty made by the grantor in the deed about the state
of the title
ii. Rights of buyers vary based on
1. Type of deed
2. Scope of written promises
iii. Types of Deeds for Purposes of Title Covenants
1. General Warranty Deed
a. The best type of deed
b. Protects against all defects before or after the grant of
title
2. Special Warranty Deed
a. Protects against defects that arose after the grantor
obtained title
i. Can’t tell if there were any issues prior
3. Quitclaim Deed
a. No warranty
b. Usually exchanged between families or foreclosures
iv. Covenants within Deeds
1. Present Covenant: Effective at time deed was transferred
a. Covenant of seisin
i. Promise that grantor owns the estate
ii. example: breached if grantor purports to
convey a fee simple but only owns a life estate
b. Covenant of right to convey
i. Promise that grantor has the right to convey
ii. example: breached if grantor is a trustee who
lacks the authority to transfer title to the trust
property
c. Covenant against encumbrances
i. Promise that there are no encumbrances
ii. example: breached if there is a prior mortgage
on the property
d. (A and B are usually the same, except in trusts where
one may own the property but does not have the right
to convey)
2. Future Covenant: Exist throughout the life of the deed
a. Covenant of warranty
i. Promise the grantor will defend against any
superior claims

32
 ii.example: if a third party holds better title than
the grantee does, the grantor must defend the
grantee’s title
b. Covenant of quiet enjoyment
i. A promise the grantees possession will not be
disturbed by anyone holding superior title
ii. example: breached if the grantee is evicted
because of a defect in her title
c. Covenant of further assurances
i. Grantor will act to cure title defects that existed
at closing
3. Brown v. Lober
a. The mere existence, without more, of a superior title
does not constitute a breach of quiet enjoyment.

c. Title Opinions Based on Search of Public Records

i. Records office will use:
1. Grantor-grantee index
a. Transaction based
b. TN uses this
2. Tract index
a. Parcel based
ii. To search title one must:
1. Locate the recorded documents that affect title to the parcel
then
2. Evaluate legal significance
3. Luthi v. Evans
a. Mother-Hubbard Clause
i. Gives everything (all interest of any kind
conveyed)
b. Conveyances of real property interests must provide a
specific legal definition of the interests being
conveyed
iii. Different Approaches to Priority
1. Traditional Common Law Rule
a. “First-in-time; first-in-right”
2. Modern Recording Act Approaches
a. Race
i. Person who records first has priority
1. Can have notice of prior interest

33
 2. Just a purchaser (any purchaser)
b. Notice
i. Subsequent bonafide purchaser has priority,
regardless of who records first
ii. Without notice of prior interest
iii. Final purchaser
c. Race-notice
i. The subsequent bonafide purchaser who
records first has priority
1. Without notice of prior interest
2. Records first
d. Examples:
i. S conveys to B, who does not record
ii. S conveys to C
iii. B records
iv. C records
1. Race: B
2. Notice: C
3. Race-Notice: B
e. Messersmith v. Smith
i. The recording of a title instrument that does not
meet the recording act’s statutory requirements
does not provide constructive notice of the
transfer to subsequent buyers
ii. Zimmer Rule applied
1. BFP’s must have a clean trail/chain
3. Properly Acknowledged Deeds
a. General Rule
i. A deed must be properly acknowledged
b. Majority Rule
i. Where the acknowledgment appears valid on
the face of the document- even though the
acknowledgment is actually defective because
of a hidden flaw, the majority of states will treat
the deed as if it were properly recorded
c. Minority Rule
i. “The Zimmer Rule”
1. Requires that all deed in the BFP’s line
must be properly recorded in order for
the BFP to prevail even if the only defect

34
 is a hidden flaw in the acknowledgment
of the deed and the BFP through his
search would not discover it
a. If there is a problem then it cuts
off the “clean” chain
4. Void v. Voidable
a. The rule that a deed procured by fraud is voidable
and allows the grantee to convey good title to
subsequent purchaser
i. Obtained by fraud
b. However, if the fraud prevents the grantor from
knowing that she is signing a deed or the deed is
forged, then the deed is void and a BFP cannot
obtain good title
i. Any subsequent grantees receive nothing
5. Considerations
a. Gifts affect analysis
i. Cannot be a bona fide purchaser if received by
a gift
b. ALL recording acts only apply to purchaser
6. The Shelter Rule
a. A grantee who has received an interest in the
property from a bona fide purchaser, will also be
protected as a bonafide purchaser, even if the
grantee would not legally qualify for this status
because of awareness or previous interest
d. Chain of Title Problems
i. Wild Deed
1. Off the Chain of Title
a. S conveys to B, who does not record
b. B conveys to C
c. C records
d. S conveys to D
e. D Records
i. B-C Deed is wild
ii. D owns the title because D would not have
found history of C
ii. Deed recorded too late
1. Will only go back on search enough to find recent transfer,
search will not expose other recording

35
 a.S conveys to B, who does not record
b.S conveys to C, who has actual knowledge of B
c.C records
d.B records
e.C conveys to D
f.D records
i. D owns the title because he will not discover
B’s interest; D will look back to find C then find
who C got it from (S). He will see S gave it to C
then stop his search. He will not continue to S-
B.
iii. Deed recorded too early
1. The earlier recording will not be detected via search
a. S owns Greenacre
b. B conveys to C
c. C records
d. S conveys to B
e. B records
f. B conveys to D
g. D records
i. D owns the property; he will look up and find B,
and that B received it from S. C recorded too
early to give notice (the B to C will be missed)
iv. Deed from a common grantor
1. No notice provided because some records are only recorded
on one deed; or easement is not continually recorded
a. S owns Greenacre and Forrestacre
b. S conveys Greenacre to B, granting an easement to
cross Forrestacre for the purpose of accessing
Greenacre
c. B records
d. S conveys Forrestacre to C, who is not aware of
easement
e. C records
i. No notice. Easement is a nullity because it was
only recorded on Greenacre and not
forrestacre; should have been recorded on
each deed.
2. Board of Education of Minneapolis v. Hughes

36
 a. One who records his valid title first is the record
owner of real property, regardless of whether another
party has earlier received the same property.
i. Board of Ed. was a subsequent BFP
e. Notice
i. A person can fail to qualify as a subsequent bona fide purchaser
because she had
1. Actual Notice
a. Actual knowledge of prior interest
2. Constructive Notice
a. Record notice
i. Notice of prior interest that is discoverable by a
standard search of land records
b. Inquiry notice
i. Notice of prior interest that could be obtained
by investigating suspicious circumstances
3. Caution:
a. Do not forget about the Shelter Rule which allows a
bona fide purchaser to transfer to a later grantee even
if the later grantee would not himself be a BFP
ii. Raub v. General Income Sponsors of Iowa, Inc.
1. The title was obtained by fraud and was voidable
a. But valid once transferred because the banks were
BFPs
b. A bona fide purchaser is entitled to have its purchase
upheld if it is not on reasonable notice to make inquiry
into whether the grantor obtained the property
fraudulently
5. Title Insurance
a. If the buyer suffers a loss from a title defect that existed on the effective
date of the policy, he receives compensation from the title company.
b. Most title insurance companies use standard policy forms prepared by the
American Land Title Association (w/ five basic sections)
i. Cover Page: sets forth the scope of coverage provided
ii. Schedule A: stating the name of the insured party, the maximum
amount insured by the policy, and the estate that is insured
iii. Schedule B: listing specific items that are expected from coverage
for this property
iv. Exclusions: listing specific items that are excluded from coverage
for all properties

37
 v. Conditions: specifying procedural requirements, such as the time
and manner for making claims
c. Imposes two obligations on the insurance company:
i. Duty to Defend
1. The title insurance will pay the costs necessary to protect the
owner’s title if it is challenged
ii. Duty to Indemnify
1. The title insurance company will compensate the owner for
losses caused by defects in the title
a. Has exceptions/exclusions
i. Conflicting laws
ii. Damages caused by owners
d. Riordan v. Lawyers Title Insurance Corp.
i. Had no right of way to property (on foot or by horse only)
1. Federal gov’t had regulations preventing roads in protected
area
a. Sold property for huge profit then tried to claim
damages (loss of value due to no right of access)
2. Title insurance for lack of a right of access to the property
and unmarketability of title does not cover losses caused by
lack of only practical access or physical defects

VIII. Private Land Use Planning

1. Easements
a. Key terms
i. Easements are interests in land owned by another person,
consisting in the right to use or control the land, or an area above or
below it, for a specific limited purpose.
ii. Land benefited by the easement is called the dominant tenement
(dominant land). Land burdened by the easement is servient
tenement (servient land).
iii. The easement holder is the dominant owner. The owner of the
servient tenement is the servient owner.
iv. An appurtenant easement benefits the easement holder in using
the dominant tenement, a specific parcel of land. An easement in
gross is not connected to the holder’s use of any particular land;
rather, it is personal to the easement holder.
1. I.e easement in gross: right to fox hunt

38
 v. An affirmative easement allows the easement holder to use the
servient land to perform an affirmative act. A negative easement
allows the easement holder to prevent the servient owner from
performing an act on the servient land.
b. Express Easements
i. Express easement by grant – arises when the servient owner
grants an easement to the dominant owner
ii. Express easement by reservation – this arises when the dominant
owner grants the servient land to the servient owner, but retains or
reserves an easement over that property
iii. Statute of Frauds Requirements for Express Easements
1. Writing must:
a. Identify the parties;
b. Describe the servient land and the dominant land;
c. Describe the exact location of the easement on the
servient land;
d. AND State the purpose for which the easement may
be used.
c. Millbrook Hunt, Inc. v. Smith
i. The grant of an interest in land typically constitutes an easement if
it is for a definite period of time.
1. Permission to fox hunt for 75 years
2. Example of a gross easement
d. License
i. informal permission that allows the holder to use the land of
another for a particular purpose, but is not classified as an interest
in land and can be revoked at any time.
e. Implied Easement by Prior Existing Use
i. Elements:
1. Severance of title to land held in common ownership;
2. An existing, apparent, and continuous use of one parcel for
the benefit of another at the time of severance; and
3. Reasonable necessity for that use
a. Reasonable necessity – “The easement was
necessary to the comfortable enjoyment of the
grantor’s property. If land may be used without an
easement, but cannot be used without
disproportionate effort and expense, an easement
may still be implied in favor of either the grantor or
grantee on the basis of necessity alone.”

39
 b. Note: the Restatement is much more relaxed; no
“reasonableness” required, just needs to be beneficial
or convenient
ii. Van Sandt v. Royster:
1. One lady owned all the land; made a long sewer line and
then sold parcels
2. An easement will be implied in favor of a grantor for sewer
pipes running under the grantee’s land, because the grantee
is charged with notice, as the existence of such pipes is
apparent even if it is not visible.
a. Notice: modern plumbing
f. Easement by Necessity
i. Elements:
1. Severance of title to land held in common ownership; and
2. Necessity for the easement at the time of severance.
ii. How much necessity is needed?
1. Strict necessity (traditional/majority approach)
2. Lack of reasonably practical access (minority middle
position approach reflected in Berge)
iii. Berge v. State of Vermont:
1. Access only by water may constitute an easement by
necessity.
2. What is necessary depends on the nature and location of the
property and may change over time
3. Reasonable necessity
a. minority position – Restatement view
i. More relaxed: just need convenience
iv. An easement by necessity only lasts as long as it is necessary
g. Prescriptive Easement
i. Elements:
1. Open and Notorious
2. Adverse and Hostile
a. “An ‘adverse use’ of land is a wrongful use, made
without the express of implied permission of the
owner of the land . . . A use of another’s land that
began as permissive will not become adverse unless
the license (created by the granting of permission) is
repudiated.”
b. Majority: Hostility is presumed
c. Minority: Claimant must prove hostility

40
 3. Continuous
4. For the statutory period
ii. O’Dell v. Stegall:
1. A person claiming a prescriptive easement has the burden
of proving his use of the land was adverse.
h. Easement by Estoppel (Irrevocable License)
i. Elements:
1. A landowner allows another to use her land thus creating a
license;
2. The licensee relies in good faith on the license, usually by
making physical improvements or by incurring significant
costs; and
3. The licensor knows or reasonably should expect such
reliance will occur
ii. An easement by estoppel and irrevocable license arise from
equitable principles; accordingly, Courts will strongly consider the
equities of a case before applying these principles.
1. The Restatement provides before setting forth requirements
related the elements set forth above that “If injustice can be
avoided only by establishment of a servitude, the owner or
occupier of land is estopped to deny the existence of a
servitude burdening the land. . . .”
iii. Kienzle v. Myers:
1. An easement by estoppel exists where a property owner
induces another to change position in reliance on a
supposed easement, even if the property owner did not
mislead the other party.
i. Flexibility of Easement
i. Modernization and technology
1. The manner, frequency, and intensity of an easement’s use
may change over time to accommodate technological
development, but such changes must fall within the
purposes for which the easement was created, as
determined by the grant’s terms.
2. Marcus Cable Association L.P. v. Krohn
a. Intensification is allowed in accordance with original
purpose of easement
i. I.e. purpose = electrical wires
1. The modern addition of cable was not
the same purpose

41
 a. Cable is communicative and not
part of providing electrical power
b. An express easement may only be used for the
purposes specified in the easement’s terms according
to their common meaning.
j. Relocating an easement
i. Traditional/Majority Approach
1. the location of an easement can only be changed by
agreement of both the dominant and servient owner
a. Subject to SOF
ii. Restatement Approach:
1. Unless expressly denied by the terms of an easement, the
owner of the servient estate is entitled to make reasonable
changes in the location of the easement at the servient
owner’s expense, to permit normal use or development of
the servient estate, but only if the changes do not:
a. significantly lessen the utility of the easement,
b. increase the burdens on the owner of the easement
in its use and enjoyment, or
c. frustrate the purpose for which the easement was
created.
d. Note: Changes may only be made if the original
agreement does not forbid it
k. Methods of Terminating Easements:
i. Abandonment
1. Non-use; AND
2. Acts by the dominant owner conclusively and unequivocally
manifesting either
a. A present intent to relinquish the easement OR
b. A purpose inconsistent with future purpose
ii. Condemnation
1. condemnation of the servient land also terminates the
easement. In this event, the easement holder is entitled to
just compensation
iii. Estoppel
1. An easement ends if the servient owner substantially
changes his position in reasonable reliance on the holder’s
statement that the easement will not be used in the future
iv. Merger

42
 1. If one person obtains title to both the easement and the
servient land, then the easement terminates under the
doctrine of merger
a. Happens immediately and automatically
b. Ex. Must reestablish at time of resale
i. Owner A acquires B; easement terminates.
But, if A sells B later, needs to re-establish
easement or else it won’t exist (does not
automatically reappear when property changes
ownership)
v. Misuse
1. In some jurisdictions, if the holder seriously misuses the
easement, it may be ended through forfeiture
vi. Prescription
1. If the servient owner blocks/obstructs/prevents the use of
the easement in an
a. open and notorious manner
b. adverse and hostile manner
c. continuous manner
d. for the required period (often statutory)
vii. Release
1. The easement holder may release the easement to the
servient owner by executing and delivering a writing that
complies with the statute of frauds
viii. Preseault v. United States
1. “Rails to Trails Case”
l. Negative Easements
i. An easement that entitles the dominant owner to prevent the
servient owner from performing an act on servient land.
m. Conservation easement
i. restricts the development and use of the servient land in order to
preserve open space, farmland, historical sites, or wild and
undeveloped land.

IX. Real Covenants

1. A promise concerning the use of land that benefits and burdens both the original
parties to the promise and their successors.
2. -Real covenants have a burden (the duty to perform the promise) and a benefit
(the right to enforce the promise).
3. Real Covenant Elements:

43
 a. Compliance with the statute of frauds
b. Intent to bind successors (usually in express language of the document)
c. Touch and concern the land (must relate to the enjoyment, occupation or
use of the property)
d. Notice: successor must have notice – can be actual, constructive (record)
notice, or inquiry notice
e. Horizontal Privity [(relationship between the original parties)]
i. Mutual interests – some states require the original parties to have
mutual interests in the affected land (e.g. landlord and tenant;
cotenants; or owners of the dominant and servient lands for an
easement)
ii. Successive interests – some states require a grantor-grantee
relationship between the original parties
iii. No horizontal privity required – in the modern trend states
abandoning the horizontal privity requirement
f. Vertical Privity [(relationship between the original promisor and successor
and between original promisee and successor)] – concerns the
relationship between the original parties to the promise and successors;
exists only if successor receives the entire estate that the original
promisor/promisee had
i. Requires transfer of full interest
4. Deep Water Brewing v. Fairway Resources:
a. In Washington, a covenant runs with the land if
i. it is enforceable between the original parties;
ii. it “touches” and “concerns” the land;
iii. it binds successors in interest;
iv. there is privity between the original parties to the covenant and
present disputants; and
v. there is privity between the original parties

5. E
q
u
i
t
a
b
l
e

44
 Servitude
a. for the burden to run with the land:
i. Must satisfy the requirements of the Statute of Frauds OR fall
within the common plan exception (imposition of uniform
restrictions on a subdivision even if the burdens/benefits do not
appear in the chair of title for every lot)
ii. Intent to bind successors
iii. Touch and concern the land
iv. Notice
b. Note: Unlike with real covenants, horizontal and vertical privity are not
required
c. Much easier to enter into an equitable servitude than a real covenant
i. Types of damages/remedies
1. Injunctive = equitable servitude
2. Monetary = real covenant
d. Tulk v. Moxhay:
i. One who purchases property with knowledge of restrictive
covenants burdening the land must honor the covenant.
6. Common Interest Community
a. Planned residential developments:
i. in which all properties are subject to comprehensive private land
use restrictions AND
ii. which are regulated by a homeowners association
b. Common Interest Community Declarations
i. Homeowners Association – Declaration establishes the association
that administers the community, specifying powers, and means of
selection of a board, etc.
ii. Declaration sets forth covenants, conditions, and restrictions of the
CIC
iii. Declaration provides for Assessments which require all unit owners
to pay monetary assessments which finance the operation of the
association.
iv. Declaration notes ownership rights, which indicate that each unit or
lot owner holds a fee simple absolute in his or her unit or lot and
either an undivided interest in the common area or the common
area is held by the association on behalf of the members.
7. Defenses to CC&Rs:
a. Unreasonableness
i. Nahrstedt v. Lakeside Village Condominium Association, Inc.:
1. Cat case vs. Covenant banning pets

45
 2. California law provides that common interest development
use restrictions are enforceable unless unreasonable.
a. “. . . unless they are wholly arbitrary [‘bears no
rational relationship to the protection, preservation,
operation or purpose of the affected land’]
b. violate a fundamental public policy, or
c. impose a burden on the use of the affected land that
far outweighs any benefit.”
3. Court first presumes the covenant is valid
a. “[Courts presume the validity of CC&Rs because] it
discourages lawsuits by owners of individual units
seeking personal exemptions from the restrictions. . . .
It provides substantial assurance to prospective
[buyers] that they may rely with confidence on the
promises [in the CC&Rs]/ And it protects all owners in
the planned development from unanticipated
increases in association fees to fund
b. the defense of legal challenges.”
b. Abandonment
i. The party opposing enforcement must prove that existing violations
of the covenant are so great as to lead the mind of the average
person to reasonably conclude that the restriction in question has
been abandoned that the property owners neither adhere to nor
enforce the restriction.”
a. Single violations do not constitute abandonment
ii. Fink v. Miller:
1. Wood shingle requirement despite risk of fire
a. 30% of homes in subdivision actually had asphalt
roofs
2. A covenant is abandoned when there are readily observable
violations of sufficient number, nature, and severity as to
lead an average person to conclude that the property owners
neither adhere to nor enforce the covenant.
c. Changed Conditions
i. In order to discharge the covenant, the burden of proof is on
challenger to show that the original purpose of the restriction has
been materially altered or destroyed by changed conditions, and
that a substantial benefit no longer extends through enforcement of
the restriction.
ii. Vernon Township Volunteer Fire Department Inc.:

46
 1. A restrictive covenant is not invalidated by non-conforming
activity that takes place outside the restricted tract.

X. Land Use Regulation

1. What is the appropriate balance between:
a. the landowner’s interest to use her property as she wishes and
b. society’s interest in regulating land use for the benefit of the broader
society?
2. Zoning
a. Standard State Zoning Enabling Act was a model law that states could
adopt if they wished, and many did. The Act both:
i. empowered local governments to adopt zoning ordinances and
ii. specified the key provisions for an effective ordinance
b. Village of Euclid v. Ambler Realty Co.:
i. Pivotal case: Modern land use law
ii. Municipal zoning regulations are constitutional, unless they are
clearly arbitrary and unreasonable, having no substantial relation to
the public health, safety, morals, or general welfare.
1. Fall under the gov’ts police power
a. Purely a legislative action and valid
2. The Court’s ruling upheld zoning codes nationwide
a. Applied rational-basis test
i. Rationally related to a legitimate governmental
interest
3. Set new classifications:
a. U-1 is restricted to single family dwellings. . .;
b. U-2 is extended to include two-family dwellings;
c. U-3 is further extended to include apartment houses,
hotels, churches, schools, public libraries, and other
public buildings;
d. U-4 is further extended to include banks, offices,
studios, telephone exchanges, fire and police
stations, restaurants, theaters, and other retail stores
and shops;
e. U-5 is further extended to include light industrial
uses;
f. U-6 is further extended to include general
manufacturing and industrial operations
g. There is a seventh class of uses which is prohibited
altogether.

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c. Typical Zoning Ordinance
i. Two basic components:
1. the text of the ordinance; and
2. maps that implement the ordinance.
ii. Typical mandates:
1. a minimum lot size (e.g., 12,000 square feet);
2. a height limit (e.g., 30 feet);
3. a lot coverage requirement (e.g., no more than 40% of the
lot may be covered by a structure); and
4. setback requirements (e.g., the home must be located at
least 40 feet away from the front and rear lot lines, and 8 feet
away from each side lot line).
d. Prior Nonconforming Uses
i. Zoning plans normally have provisions that authorize prior
nonconforming uses to continue despite their inconsistency with the
zoning law; they are “grandfathered in.”
ii. In general, for the nonconforming use to be permitted to continue,
this usage must have been lawful and existent when the zoning
ordinance was passed. The right to continue with the
nonconforming use runs with the land.
iii. Owners are generally entitled to make reasonable alterations to
their facilities and render them practicable for their purposes but are
not allowed to make substantial changes in use that violate the
zoning restrictions (owners may not trade one nonconforming use
for another nonconforming use) or expand their nonconforming use
(some zoning codes do allow, however, for normal expansion in
use).
1. Note: Increasing the frequency of a nonconforming use does
not constitute an expansion; it classifies as intensification
a. Same use of purpose
b. Tripp v. Mayor of Baltimore
i. Exotice dancing club case
iv. Traditionally, a nonconforming use could be terminated only if:
1. the structure was destroyed;
2. the use was abandoned or discontinued;
3. the use was a nuisance; or
4. the municipality acquired the property through eminent
domain, paying fair market value.
v. Reasons for allowing nonconforming uses

48
 1. Expectations that nonconforming uses will fade away as they
become out of sync with neighborhood
2. Frustrates the expectations of people who invested in a
previously legal use
a. General political discontent
b. Risk of regulatory takings
c. Claims in extreme cases
e. Amortization
i. - City uses a legal process created by the state and will use law to
phase out existing nonconforming use. Not a taking as long as
amortization provides reasonable time.
1. AVR, Inc. v. City of St. Louis Park:
a. Factors used in determining amortization time period:
b. Information relating to the structure located on the
property;
c. Nature of the use;
d. Location of the property in relation to surrounding
uses;
e. Description of the character of and uses in the
surrounding neighborhood;
f. Cost of the property and improvements to the
property;
g. Benefit to the public by requiring the termination of the
nonconforming use;
h. Burden on the property owner by requiring the
termination of the non- conforming use;
i. The length of time the use has been in existence and
the length of time the use has been non-conforming
ii. Abandonment:
1. Abandonment generally terminates a nonconforming use.
Abandonment occurs if the landowner both
a. intend to relinquish his right to use and
b. Voluntarily ceases the use for a set period of time,
varying by jurisdiction from 30 days to two years.
f. Zoning Amendment
i. In most jurisdictions zoning amendments are evaluated using the
rational basis standard.
ii. Map Amendment (area becomes a different zone)
iii. Text Amendment (zone can have different types of buildings)
iv. Smith v. City of Little Rock:

49
 1. Rezoning a previously residential property (to a commercial-
Wendys) in a residential neighborhood is not inherently
arbitrary and capricious.
2. Introduced the issue of Spot Zoning:
a. Singles out a small parcel of land for different
treatment
b. Primarily for the benefit of the private owner
c. In a manner inconsistent with the general plan for the
community
g. Variance
i. Area Variance – permits a modification of lot size, setback, height,
frontage, density, or similar requirements, like setback requirement.
ii. Variances
1. Area Variance
a. Area Variance – permits a modification of lot size,
setback, height, frontage, density, or similar
requirements, like setback requirement.
2. Use Variance
a. authorizes a type of use that is otherwise prohibited
by the zoning ordinance.
b. Because there is a risk that a use variance will
circumvent the uniformity of the zoning plan – without
the procedural safeguards built into the amendment
process – some states impose higher standard on this
type of variance
i. showing of strict hardship
iii. Must Meet the Five Requirements of Unnecessary Hardship:
1. Unique physical circumstances or conditions
2. Because of physical conditions a variance will be necessary
to enable the reasonable use of the property
3. Unnecessary hardship was not created by the applicant
4. Will not alter the essential character of the neighborhood
5. Variance is the minimum necessary to afford relief
iv. Detwiler v. Zoning Hearing Board of Lower Salford Township:
1. Requested Area variance in order to build home on odd
shaped lot (the front yard/back yard restrictions made it
impossible)
2. Important not to create hardship by purchasing property with
known restrictions

50
 a. Uncommon outcome – usually will not get variance
when purchasing land and knowing zoning code
3. A landowner’s knowledge of zoning requirements prior to the
purchase of property is not sufficient, in and of itself, to bar
the grant of a variance. . . . Hardship is self-inflicted only
where a landowner has paid a high price for the property
because he assumed that a variance which he anticipated
would justify the price.”
a. However, in most jurisdictions, knowledge of the
zoning requirement is sufficient to bar the grant of a
variance, regardless of the price paid by the
landowner.
h. Special Exceptions
i. Special Exceptions
1. A use that is permitted in the zone if certain conditions
specified in the zoning ordinance are met.
ii. Unlike a variance, special exception is a use authorized by the
ordinance but one that must be regulated on a case-by-case basis
to avoid injury to existing owners.
iii. Ex. Home Business:
1. No person other than family members engaged in
occupation
2. Occupation is subordinate to home use, and only takes up
25% of floor area
3. No change in appearance to building
4. Not conducted in accessory building
5. No excess traffic or parking
6. No obnoxious sounds, glare, or odor.
i. New Flexible Techniques:
i. Conditional zoning:
1. Rezoning a particular parcel when the owner satisfied
conditions imposed by the city or county, in order to mitigate
the impact of the zoning change.
ii. Floating zone:
1. A zoning district with detailed provisions (usually to
accommodate large-scale developments such as shopping
centers) which does not have a specific location until an
owner applies to have the zone applied to her property.
iii. Cluster zone:

51
 1. A residential zone that restricts the number of homes, but
allows the developer choice about where the homes will be
located; this permits the “clustering” of residences and
encourages preservation of open space.
iv. Planned unit development:
1. Zoning that allows a developer to plan an entire community
(with homes, businesses, and public services), subject to
guidelines for density and other concerns; this is essentially
cluster zoning extended to all users.
j. Enforcing conformity
i. Ladue Part I
1. State ex rel. Stoyanoff v. Berkeley
a. Pyramid House case
2. Aesthetics is a reason to enforce conformity and valid under
the police power
a. Protect the general welfare: subjective comfort and
enjoyment
b. Protects the “comfort and happiness” of residents
c. Preserves property values
ii. Ladue Part II
1. Sign Case
a. Aesthetics cannot limit free speech
b. “Ladue has almost completely foreclosed a venerable
means of communication that is both unique and
important.”
c.

XI. Concurrent Ownership

1. Modern Concurrent Estates:
a. Tenancy in Common
i. O conveys “to A and B.”
1. Two or more persons have a possessory interest in the
property at the same time.
2. Each owner has the legal right to use and possess the
entire property regardless of the size of her fractional share.
3. Each owner’s interest is alienable, descendible, and
devisable.
4. Each ownership interest is a fractional share of the whole.

52
 5. Each tenant in common owner is entitled to his fractional
share of any proceed of a sale or share of any rental profits
of the property.
b. Joint Tenancy
i. O conveys “to A and B as joint tenants with right of survivorship.”
ii. A concurrent interest like a tenancy in common, but the joint tenant
also has a right of survivorship in the other shares
1. Each tenant’s interest is alienable, but is neither
descendible nor devisable. If a joint tenant dies, her interest
is divided equally among the other joint tenant owners.
iii. If an ownership interest is alienated, that share is no longer part of
the joint tenancy, and has no right of survivorship.
iv. At common law a joint tenancy could only be created when the
“four unities” were present
1. Time – joint tenants acquire their interests at the same time
2. Title – joint tenants acquire title through the same
instrument
3. Interest – joint tenants have the same ownership share in
the estate
4. Possession – joint tenants have an equal right to possess,
use, and enjoy the property.
a. Traditional Common Law Approach: Presumption in
favor of joint tenancy over tenancy in common.
i. Modern Majority Rule: Presumption in favor of
tenancy in common over joint tenancy with
requirement that a joint tenancy must be
expressly created in writing.
ii. Modern Minority Rule: Presumption in favor of
tenancy in common over joint tenancy but
allowing for consideration of extrinsic evidence
and adhering to transferor’s actual intent.
iii. Tennessee no longer requires the “four
unities”, but only if made explicitly clear.
5. Uniform Simultaneous Death Act:
a. In the case of instant simultaneous death, say each of
the joint tenants survived each other, divide the
property up evenly and make it descendible.
v. James v. Taylor:

53
 1. If an instrument of conveyance does not show an intent to
create a right of survivorship, the instrument cannot create a
joint tenancy.
2. “Every interest in real estate granted or devised to two (2) or
more persons, other than executors and trustees as such,
shall be in tenancy in common unless expressly declared in
the grant or devise to be a joint tenancy.”
c. Severance
i. Tenhet v. Boswell:
1. A lease does not sever a joint tenancy, but expires upon the
death of the lessor.
2. Inasmuch as the estate arises only upon express intent. . .
we decline to find a severance in circumstances which do
not clearly and unambiguously establish that either of the
joint tenants desired to terminate the estate . . .”
d. Partition
i. A partition ends the co-tenancy and distributes its assets.
1. Voluntary Partition:
a. The cotenants may agree to divide the property
physically or to sell it and share the proceeds.
2. Involuntary or Judicial Partition: Any tenant in common or
joint tenant also has the right to sue to force a partition of the
property
a. Physical Partition or “Partition in Kind”:
i. a physical division of the property between the
cotenants
b. Partition by Sale:
i. forced sale of the property with a subsequent
division of the proceeds between the cotenants
e. Ark Land Co. v. Harper:
i. Coal mining company vs. family home in WV
ii. The economic value of property is not a decisive factor in
determining whether to partition in kind or by sale.
iii. Partition by Sale Factors:
1. That the property cannot be conveniently partitioned in kind
2. That the interests of one or more of the parties will be
promoted by the sale
3. That the interests of the other parties will not be prejudiced
by the sale
2. Cotenant Rights and Duties

54
 a. Each cotenant is responsible for payment of her share of operating
expenses such as mortgage payments, taxes, insurance, etc.
b. Each cotenant is entitled to a proportionate share of any rents or profits
derived from the land
c. Generally, a cotenant who does not use the land is not entitled to rent
from the cotenant who does use the land, unless there is an ouster
d. Esteves v. Esteves
i. Son not entitled to rent benefits because he chose not to live there
1. Owed his parents his share of maintenance on the home
a. Taken from the sale of home
b. But, credited from parents use of land (value)
ii. Where a cotenant has sole possession of the property and
demands contribution for operating and maintenance expenses
from the non-possessing cotenant, the tenant in possession must
allow a corresponding credit for the value of his sole occupancy.
e. Repairs and Improvements
i. Repairs and Maintenance:
1. Cotenants cannot be made to pay a share of repairs;
however, the cotenant who paid for the repair will get a credit
for the value of the repair at the time of sale or partition.
ii. Improvements:
1. Cotenants cannot be made to pay a share of improvements
to the property; however, the cotenant who paid for the
improvement will keep any value added by the improvement
at the time of sale or partition.
3. Marital Property
a. Separate Property System:
i. During the Marriage:
1. Property acquired before marriage is kept separate
2. Property acquired during the marriage is considered to be
the property of the acquiring spouse.
ii. Divorce:
1. Courts perform an equitable distribution of property acquired
by either spouse during the marriage.
iii. Death:
1. The surviving spouse may choose a forced share (1/3 to 1/2)
of the decedent’s estate or take under the decedent’s will.
iv. Note: Majority of States use Separate Property System
1. Including Tennessee

55
 v. Note: Using [separate/individual] funds to purchase a home
because commingled (applies to Community Property System as
well)
b. Community Property System:
i. During the Marriage:
1. Property acquired before marriage is kept separate
2. All earnings during the marriage and all assets are acquired
are owned equally by both spouses as “community
property.”
ii. Divorce:
1. All community property is divided 50/50.
iii. Death:
1. Decedent may devise her half of community property and
any separate property as she wishes.
iv. Note: Money in bank account from before you were married – as
long as it is in bank account – is your separate property.
1. Again, if it is used to purchase something like a house with
your spouse, it is “commingled”
4. Tenancy by the Entirety
a. O conveys “to A and B as tenants by the entirety.”
b. Like a Joint Tenancy, but only applies to married couples.
c. Unlike a joint tenancy, this form of concurrent ownership cannot be
severed unilaterally, but only ends through death, divorce, or agreement of
both spouses
d. In most state that recognize a tenancy by the entirety (about half do not –
TN does), neither spouse may individually transfer or encumber his or her
interest. As a result, this allows for shielding of assets held through a
tenancy by the entirety from creditors.
e. Sawada v. Endo:
i. Husband transfers home to son after accident, pending
liability/damages; P sues for fraudulent conveyance
1. But households are owned by tenancy in entirety
a. Wife owns too; separate interest
ii. The interest of a husband or wife in a tenancy by the entirety is not
subject to the claims of his or her individual creditors during the
joint lives of the spouses.
iii. Traditional common law approach
1. possession and profits of the estate are subject to the
husband’s dominion and control.

56
 2. The full interest of one spouse may be sold or levied, subject
to the other spouse’s right of survivorship.
3. Any attempted conveyance by one spouse is void and estate
is not subject to the separate debts of one spouse.
4. Right of survivorship is alienable. Creditors may take the
property if the debtor spouse is the surviving spouse.
f. Guy v. Guy:
i. A professional degree is not marital property
ii. A professional degree
1. Does not have an exchange value
2. Is personal to the holder
3. Terminates at the death of the holder
4. Cannot be assigned or sold
5. Is an intellectual achievement
g. In re Estate of Roccamonte:
i. Non married couple; relied on promise to support; marital-like
relationship
ii. A decedent’s promise to his unmarried cohabitant to support her for
life, made in consideration of a marital-style relationship, is
enforceable against his estate.
iii. Alimony
1. payment in support of your spouse. Duty during marriage to
support the spouse that survives after the marriage contract
is over.
iv. Implied marriage contract?
1. Alimony comes from the contractual aspect of marriage.
However, it is possible to enter into a contract by taking
actions that resemble a contract.
2. “Pal-imony”: Pal and alimony

XII. Nonfreehold Estate

1. Fair Housing Act of 1968:
a. Section 3604
i. To refuse to sell or rent after the making of a bona fide offer, or to
refuse to negotiate for the sale or rental of, or otherwise make
unavailable or deny, a dwelling to any person because of race,
color, religion, sex, familial status, or national origin.
ii. To discriminate against any person in the terms, conditions, or
privileges of sale or rental of a dwelling, or in the provision of

57
 services or facilities in connection therewith, because of race, color,
religion, sex, familial status, or national origin.
iii. To make, print, or publish, or cause to be made, printed, or
published any notice, statement, or advertisement, with respect to
the sale or rental of a dwelling that indicates any preference,
limitation, or discrimination based on race, color, religion, sex,
handicap, familial status, or national origin, or an intention to make
any such preference, limitation, or discrimination…
b. Discrimination Against Handicapped Persons Also Includes
i. a refusal to permit, at the expense of the handicapped person,
reasonable modifications of existing premises occupied or to be
occupied by such person if such modifications may be necessary to
afford such person full enjoyment of the premises except that, in
the case of a rental, the landlord may . . . condition permission for a
modification on the renter agreeing to restore the interior of the
premises to the condition that existed before the modification,
reasonable wear and tear excepted;
ii. a refusal to make reasonable accommodations in rules, policies,
practices or services, when such accommodations may be
necessary to afford such person equal opportunity to use and enjoy
a dwelling . . ..
c. Exemptions
i. Rooms or units in dwelling containing living quarters occupied . . .
by no more than four families living independently of each other, if
the owner . . . occupies one of such living quarters as his
residence.
ii. Any single-family house sold or rented by an owner if he owns less
than three houses and does not use a real estate broker or agent in
the sale or rental.
2. Neithamer v. Brenneman Property Services, Inc.:
a. HIV/Gay guy tries to rent apartment; denied even after offering to pay 1
month rent up front
b. Once a plaintiff makes a prima facie showing of discrimination under the
Fair Housing Act, the defendant may provide a non-discriminatory reason
for rejecting the plaintiff’s housing application, but the plaintiff may rebut
this by establishing the defendant’s nondiscriminatory reason is a pretext.
i. A number of states have added to state law protection for sexual
orientation but the federal government has not amended.
c. McDonnell Douglas Burden Shifting Test
i. Step One:

58
 1. Plaintiff must establish a prima facie case of discrimination
by showing:
a. that he is a member of a protected class and
Defendants knew or suspected that he was;
b. that he applied for and was qualified to rent the
property in question;
c. that Defendants rejected his application; and
d. that the property remained available thereafter.
ii. Step Two:
1. Once Plaintiff establishes a prima facie case, the burden
shifts to Defendants to articulate some legitimate,
nondiscriminatory reason for their rejection of Plaintiff’s
application.
iii. Step Three:
1. If Defendants satisfy this burden, Plaintiff must show either
that Defendants’ reasons are pretext or that material facts
are disputed, precluding summary judgement.
3. Leaseholds
a. Tenancy for a fixed period of time [Term of Years Tenancy]
i. Specified amount of time for the lease
ii. Seen frequently with commercial tenants
iii. Does NOT automatically renew
b. Tenancy for a renewable period [Periodic Tenancy]
c. Tenancy at will
i. Periodic tenancy without a written contract
d. Tenancy at sufferance
i. Holdover tenant
ii. If you stay even a day over, the landlord can unilaterally renew your
tenancy obligation (for up to a year in Tennessee)
e. Kajo Church Square, Inc. v. Walker:
i. There is no such interest as a “leasehold for life.”
4. Landlords, Holdover Tenants and Delivering Possession
a. Keydata Corp. v. United States:
i. NASA vs. Keydata Case; building was not available on date of
lease; NASA wants out of contract
ii. The landlord is required in all states to deliver the legal right to
possession of the property.
1. The divide among states is as to whether the landlord must
also deliver actual possession of the property.
iii. English Rule (Majority Rule)

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 1. the landlord must deliver actual possession of the premises
at the beginning of the term.
iv. American Rule (Minority Rule)
1. the landlord merely covenants to deliver the legal right to
possession of the property but is not obligated to provide
actual possession.
b. Conditions of the Premises:
i. In re Clark:
1.
2. Tenants can receive damages from landlords for egregious
living conditions
c. Constructive Eviction
i. Wrongful conduct by the landlord that
1. Landlord fails to perform an obligation in the lease,
2. Landlord fails to adequately maintain and control the
common area,
3. Landlord breaches a statutory duty owed to the tenant,
4. Landlord fails to perform promised repairs,
5. Landlord allows nuisance-like behavior.
ii. Substantially interferes with the tenant’s use and enjoyment of the
leased premises
iii. Fidelity Mutual Life Insurance Co. v. Kaminsky:
1. Gynecology office; abortion protestors
2. A landlord’s failure to act in the face of repeated requests to
protect a tenant’s quiet enjoyment of the premises can
constitute a constructive eviction.
a. Failure to take steps to prevent conduct can be
wrongful conduct
b. Doesn’t have to completely interfere with tenant’s use,
just substantially
iv. JMB Properties Urban Co. v. Paolucci:
1. Renewed lease; stayed for years after complaints of noise
2. If a tenant does not vacate the premises within a reasonable
time after a constructive eviction, he waives his claim to
constructive eviction.
3. Procedure
a. In general, a tenant seeking to rely on constructive
eviction must:
i. notify the landlord about the problem,

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 ii. give the landlord a reasonable period of time to
fix the problem, and
iii. vacate the premises (can’t leave to quickly –
can’t stay too long)
4. Remedies
5. Majority Rule:
a. Allows the tenant to move out without having a
continuing obligation to pay rent.
6. Minority Rule (Restatement approach):
a. Allows tenant to remain in possession of the property
and obtain damages based upon a constructive
eviction.
d. Implied Warranty of Habitability
i. “The theory that the residential landlord warrants that the leased
premises are habitable at the outset of the lease term and will
remain so during the course of the tenancy.”
ii. Wade v. Jobe:
1. Sewage backed up in basement; no heat;
2. If a landlord breaches the implied warranty of habitability,
the tenant is entitled to a percentage reduction of the rent for
the period of the breach
iii. Implied Warranty: Policy Justifications
1. Modern tenants seek use of the structure, not the land
2. Tenants are unable to inspect the property properly or to
make repairs
3. Tenants are in a poor position to bargain effectively to
require landlords to fix problems
4. Concept of implied warrant is in harmony with housing and
building codes reflecting a legislative desire to ensure decent
housing
iv. Remedies
1. Withhold Rent:
a. Usually the most effective remedy because it gives
landlord incentive to repair premises. Most
jurisdictions, tenant may withhold all rent, even for a
partial breach of warrant. Some courts recommend
that rent be paid into an escrow fund under judicial
control.
i. Breach of the implied warranty is a defense to
eviction action.

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 2. Repair and Deduct:
a. In many states, the tenant may withhold rent and use
these funds to repair the defects.
3. Sue for damages:
a. The tenant may sue for damages while remaining in
possession or after vacating the premises.
i. Courts differ wildly on the appropriate measure
of damages.
ii. Difference between the value of the dwelling as
warranted and the value of the dwelling as it
exists.
iii. Percentage diminution test:
1. considers the percentage by which the
defects reduce the tenant’s use and
enjoyment of the premises.
2. Court reviews the importance of the
defect and how long it has existed.
v. Note:
1. Landlord cannot waive the implied warranty of habitability.
a. Even if it is not the landlord’s fault, still can be
considered violating the implied warrant.
2. General rule is that there only has to be a lockable door.
Unless there is a local law requiring a deadbolt, landlord is
not required to provide any extra security.
3. Even if there is no specific housing code about an issue, if it
renders the apartment uninhabitable (i.e., toxic mold) it falls
under the implied warranty.
e. Ending the Tenancy
i. Surrender
1. Landlord and tenant agree to end the lease early
ii. Abandonment
1. “An abandonment of the leased property by the tenant
occurs when he vacates the leased property without
justification and without any present intention of returning
and he defaults in the payment of the rent.” (RST)
2. Traditional options for a landlord responding to an
abandonment:
a. Sue for all rent:

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 i. Landlord could keep the premises vacant until
the lease term expired, and then sue T for all
the accrued rent.
b. Terminate the lease:
i. L could treat T’s abandonment as an implied
offer of surrender and terminate the lease.
c. Mitigate damages and then sue for rent:
i. L could mitigate his damages by reletting the
premises to another tenant, retaining that rent,
and then suing T for the balance.
iii. Duty to Mitigate
1. Sommer v. Kridel:
a. Tenant told landlord his engagement was off and
could not pay rent; Landlord did not fill vacancy
(refused to another interested party) and tried to sue
for damages for the entire year
b. A landlord has a duty to mitigate damages where he
seeks to recover rents due from a defaulting tenant.
i. Landlord has the burden of showing that she
used reasonable diligence in attempting to re-
let the premises.
ii. Must treat the apartment as if it was one of her
vacant stock.
iii. Must advertise the apartment in relevant
media, and must show to prospective tenants.
iv. Eviction
1. Tenant can refuse to pay rent or violate the terms, yet refuse
to leave property.
2. Landlord must then force them to leave property.
3. A landlord may not evict a tenant in retaliation for the tenant
reporting housing violations or other problems with the
condition of the property.
v. Retaliation
1. Hillview Associates v. Bloomquist:
a. Trailer park tenants rallied to file complaints about the
condition of the park; all served with eviction notices
b. Except as provided in this section, a landlord shall not
retaliate by increasing rent or decreasing services or
by bringing or threatening to bring an action for

63
 possession or by failing to renew a rental agreement
after any of the following:
i. The tenant has complained to a governmental
agency charged with responsibility for
enforcement of a building or housing code . . ..
ii. The tenant has complained to the landlord of a
violation under section 562B.16 [requiring the
landlord to maintain habitable condition].
iii. The tenant has organized or become a
member of a tenant’s union or similar
organization . . ..
c. . . . In an action by or against the tenant, evidence of
a complaint within six months prior to the alleged act
of retaliation creates a presumption that the landlord’s
conduct was in retaliation . . . [T]he trier of fact must
find the existence of [retaliation] presumed unless and
until evidence is introduced which would support a
finding of its nonexistence.
vi. Traditional Common Law Approach to Eviction:
1. Use self-help:
a. L could retake possession through self-help by
physically entering the premises and causing T to
leave, as long as L used only a reasonable amount of
force.
2. Sue the tenant:
a. L could sue T, secure a judgement ordering T’s
eviction, and have the judgment enforced by a law
enforcement officer. (Majority modern trend)

Estates:

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Freehold Estates:
Fee simple: present interest and future interest held by ONE person

Anything else has multiple interests:

Be able to identify who has present and future interest

O conveys to A for life

-A has life estate (present)
-O has a reversion (future)

O conveys to A for life, then to B

-A has life estate (present)
-B has a vested remainder in fee simple (future)

Fee Simple: “Owner to A and her heirs”

Life Estates: “Owner to A for life” and “Owner to A for life, then to B”

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Fee Tail (mostly abolished): “To B and the heirs of his body”

Fee Simple Determinable: “O Conveys to G and her heirs until Alaska secedes from
the United States”

Fee Simple Subject to a Condition Subsequent: “O conveys to G and her heirs but if
Alaska secedes from the United States, then O has the right to re-enter and reclaim the
land”

Fee Simple Subject to Executory Limitation (**Interest created in third party): “O

conveys to G and her heirs so long as Alaska does not secede from the United States,
then to M and her heirs”

Condition Precedent (no comma) or Condition Subsequent (comma):

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Ex. “To A for life, then to B if B survives A, and if not, then to C” (CP) OR
“ to A for life, then to B, provided that if B does not survive A, then to C” (CS)

C.S: RAP DOES NOT apply

“To B for life, and then to D, unless D does not have children” (comma)

C.P: contingent remainder, subject to RAP

All contained in one clause: “To B for life, and then to D if D has children” (no
comma)

Future Interests:

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Remainders are types of interests for grantees: Classifications
-capable of becoming possessory immediately upon the expiration of the prior
estate
-MAY NOT cut short (divest) any other person’s interest
Vested Remainders:
Going to an ascertainable person (in existence and known at time of transfer)
Anyone named in a problem satisfies this
No condition precedent
Vested Remainder subject to Divestment
Vested Remainder subject to Open
-must be given to at least one ascertainable person, i.e to d’s children
(one exists but more may come along); pregnancy: a fetus is considered an
ascertainable person

Contingent Remainders:
Given to an UNascertainable person OR subject to a condition precedent
“Heirs” is unascertainable until the day that D dies
As a legal matter it's impossible to ascertain the identity until death of grantor

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 ALARM: “heirs”: creates FLAGs for a contingent remainder and may need
to worry about RAP
-do not confuse to D and her heirs: fee simple (a indefeasible
vested remainder in a fee simple)
-to the heirs of D: contingent remainder in heirs
Condition Precedent because in order for D to have any interest D must first
satisfy condition (i.e. if D becomes President)

Executory Interests:
Executory interest: comes into being by divesting another estate or interest to become
by possessory: MUST divest (as opposed to remainders that may not divest)

Springing: divests the transferer/grantor

“O to A and her heirs ten years from now”
O has present interest in fee simple subject to an executory limitation; A
has a springing executory interest in fee simple

Shifting: divests a transferee

“To A and her heirs until Alaska secedes from the United States, then to B
and her heirs”

Examples of Short Answer: will likely have names instead of letters

O conveys to “C for life, then to D and his heirs if D lives to the age of 30”
Present: C has life estate
Future: D has a contingent remainder in fee simple
Future: O has a reversion

O conveys “to E for life, then to F’s children and their heirs”. Assume that F never
had children
Present: E has life estate
Future: F’s children have a contingent remainder in fee simple (they are
unascertainable)
Future: O has a reversion
O devises ‘to G for life, then to H, but if H does not survive G, then to I”
Present: G has a life estate
Future: H has a vested remainder in a fee simple subject to divestment
(LOOK AT THE COMMA-- condition subsequent)

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 Future: I has a shifting executory interest (bc the only way that I can get
the property is if H does not survive G; even though H just has to die it is
still divesting the interest of H)

O conveys “to J for life, then to K for life, then to L’s children” Assume that L is
alive and has one child, M.
Present: J has life estate
Future: K has a vested remainder in life estate
Future: L’s children have a vested remainder subject to open in fee simple
(because on child already exists and there may be more)

O devises “to G for life, then to H, but if H does not survive G, then to I.”
Vested remainder subject to divestment

O conveys “to J for life, then to K for life, then to L’s children.” Assume that L is
alive and has one child, M.
K: indefeasible vested remainder
L: vested remainder subject to open

Rule in Shelley’s Case(interest created in the “heirs” of the grantee change to fee
simple in the grantee:
O conveys “to B for life, then to M for life, then to M’s heirs”
-applies

O conveys “to C for life, then to H for life, then to C’s heirs”
-applies; rewrite: “to C for life, then to H for life, then to C”

O conveys “to D for life, then to F’s heirs”

-does not apply

Doctrine of Worthier Title (Grantor creating future interest in his own “heirs”
changes to a vested future interest in the grantor):
O conveys “B for life, then to X’s heirs”
-does not apply
O conveys “to C for life, then to X for life, then to O’s children”
-does not apply; did not use “heirs”

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 O conveys “to D for life, then to X so long as it is used as a school, then to
O’s heirs”
-applies; rewrite “then to O”

Doctrine of Destructibility of Contingent Remainders (Requires all contingent

remainders to vest by the end of the preceding estate)
O conveys “to G for life, then to M and her heirs if M marries”
-G has a life estate
-M has a contingent remainder in fee simple
-O holds a reversion (if M does not marry)

O devises “to C for life, but if X marries Y, then to X”

-X marries Y: executory interest
-Rule does not apply

O conveys “to B for life, then to M’s children.” Assume M has no children
-Would revert back to O

O conveys “to D for life, then to D’s children.” Assume D has no children.
-Would revert to O; Shelly’s Rule does not apply bc it did not say
“heirs”

Rule Against Perpetuities:

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72
First step is to remember that RAP only applies to: contingent remainder, executory
interests, and vested remainders subject to open
(may have to answer that a RAP does not apply b/c “ …type of interest....”)

-Perpetuities Period:
Last individual who was alive when the interest was created
-21 years after last person alive
-starts at the moment of creation of the interest; life in being must exist at
time of interest
*** CONVEYANCE (time of delivery of deed) AND DEVISE (interest
created at time of death) MATTERS
Lives in beings will be mentioned in the problem (or reasonably inferable)
Know 6 steps!: is there a RAP problem and WHY (do not need to analyze what
would happen after the 6 steps, the effects on the will)

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RAP Examples:

O conveys “to B for life, then to M’s first child to reach 30.” (M is childless)
-M could have a child P one year after the conveyance. P is not a life in being.
-O, B, and M could die shortly after P’s birth
-P, who is not a life in being, cannot reach age 30 within 21 years of of the
deaths
O, B, and M, the lives in being at the time of the creation of the interest.

O conveys “to B for life, then to M if Mlives to be age 50”

Answer: No RAP problem here. (THIS IS A CONDITION PRECEDENT) M has a
contingent remainder in a fee simple. M is a life in being at the time of the transfer, and
we will know within his lifetime (at time of death) whether or not he will live to be 50.

O devises ‘to City, but if the land is not used as a school, then to H and her heirs”
Answer: There is a RAP problem. The city has a fee simple subject to a condition
subsequent. H has a shifting executory interest beause H will cut short the City’s
ownership if the condition occurs (executory interest triggers RAP). H is our life in being.
We can imagine that immediately after the transfer, H has a new child, after which H
dies. The city might use the land as a school for more than 21 years before we might
know whether or not the city will violate the provision and the land will go to H’s heirs.

O conveys “to D provided that if it ceases to be used as a church, then to G if he is

living”
Answer: There is no RAP problem. G is a life in being (subject to a condition
precedent), and at the time of his death we will know whether or not D ceased to use
the land as a church (not looking beyond death of G). Different than last example bc we
are measure by the life of G.

O devises “to my grandchildren who reach age 21”

Answer: No RAP here because this is a devise and not a conveyance-- so we will
know for certain at the time of O’s death whoever O’s children are (and O’s childrens
are lives in being). Their children (o’s grandchildren) will reach age 21 or not within 21
years of the life of each of the parents (O’s children, the lives in being): would have an
issue if higher than 21 (i.e. 22 or more), no issue if less than 21 (i.e. 18). What is
awkward about the clause is we are inferring a generation as a life in being (O’s
children). Fixed set of lives in being.

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O conveys “to my grandchildren who reach age 21”
Answer: now there is a RAP problem. The problem is because O is still alive, so
after conveyance O may have a new child, who will NOT be a life being at the time of
transfer. If O and all of his other children die, then we may not know within 21 years
whether or not the new child will have children of his or her own. NO fixed set of lives in
being.
-similar to fertile octogenarian issue

O conveys “to C if anyone finds a cure for cancer”

-Cure could happen years after all parties dead – void when created

O conveys “to C if C finds a cure for cancer”

-Will certainly succeed or fail by the time of C’s death- valid

Vested remainder subject to open is subject to RAP

Rule of thumb: devices are safer than conveyances.

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Chain of Title Problems:

Race: Person who records first has priority

Notice: Subsequent bonafide purchaser has priority, regardless of who records first

Race-Notice: The subsequent bonafide purchaser who records first has priority

Issues arise over the way indexes are used

Grantor-Grantee Index

Deeds that are not found (wild deed) are treated as nullities BECAUSE they do not
provide proper notice.
S conveys to B, who does not record
B conveys to C
C records
S conveys to D
D records

---The transfer of B-C is nullified. (this works in ANY jurisdiction: race/race-notice/notice

bc the recording is a nullity)
--D has title (even though C owns it legally)

Hard one: Deed recorded too early:

S owns greenace (assume that S told B this would one day be theirs)
B conveys to C.
C records
S conveys to B
B records
B conveys to D
D records

D has no notice of recorded deed of C

D has title

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Deed recorded too late
Will only go back on search enough to find recent transfer, search will not expose other
recording
S conveys to B, who does not record
S conveys to C, who has actual knowledge of B
C records
B records
C conveys to D
D records

D owns the title because he will not discover B’s interest; D will look back to find C then
find who C got it from (S). He will see S gave it to C then stop his search. He will not
continue to S-B.

Void v. Voidable:
Fraud in the inducement to convey a deed/mistake/misrepresentation: VOIDABLE; can
convey good title to a Subsequent BFP

Deed is forged: VOID; CANNOT convey good title to a BFP

Stolen: Void title
Only exception is if you have stolen the held on long enough to satisfy adverse
possession

Tenancy:

S conveys Greenacre “to A, B, and C as tenants in common.” Shortly thereafter, A sells

his interest to F; then B dies, devising her interest to G. Who owns what interest in
Greenacre?
- F, C, and G each have 1/3 interests in the property.

S conveys Greenacre “to A, B, and C as joint tenants with right of survivorship.” Shortly
thereafter, A sells his interest to F; then B dies, devising herinterest to G. Who owns
what interest in Greenacre?
- F has a 1/3 share; C has a 2/3 share; and G has nothing because the devise
from B was invalid.

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Alternative Theory: Adverse Possession or in the alternative Prescriptive Easement
(REPEAT even if the analysis overlaps)

Prescriptive Easement:
-Open and Notorious
-Adverse and Hostile (majority = hostile is presumed)
-use made without permission
-use is not adverse if granted by permission (unless license was repudiated)
-Continuous
-For the Statutory Period

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