california bar exam outline - property






California Bar Exam Outline - Property

This is an outline which I created as part of my preparations for the July 2000 California Bar Exam. I started with the outline of subjects covered on the MBE exam provided by the National Conference of Bar Examiners. To that outline I added the additional topics tested on the California Bar Exam. I then filled in the substantive information for those categories from the following sources:
  • PMBR lecture tapes (24 tapes covering torts, K, property, con law, crim law, and evidence).
  • BarBri "Early Bird" lectures covering K, evidence, crim law, crim pro, con law, civ pro, bus org, community property, and property.
  • PMBR Multistate Workbook Volume 1 Outlines (torts, K, property, crim law, crim pro, evidence, con law)
  • PMBR Multistate Workbook Volume 1 MBE answers
  • PMBR Multistate Flashcards
  • Strategies and Tactics for the MBE, by Emanuel
  • PMBR 6-day lecture and �Early-Bird� Workbook (MBE answers and Multistate Issue Graphs)
Once I started the BarBri lectures, I stopped using this outline, and instead studied from flashcards (made in part from this outline), and checklists. Therefore, this outline does not contain any substantive information from BarBri, and any additions or corrections that I would have made using the BarBri information. You should not rely on this outline as an authoritative primary source.

  1. Real Property

  1. Exam approach

  1. Conveyances are frequently invalidated on the exam by means of unrecorded deeds, forged deeds, and non-delivery of deeds.
  2. Identify (classify) what interests all the parties have, what their duties are, and what limitations exist on the interest.D

  1. Considerations

  1. Nature and characteristics
  2. Creation
  3. Classification of interests
  4. Rights of possession and user
  5. Legal and equitable remedies

  1. Interests in property

  1. Freehold / present possessory estates

  1. Fee simple absolute: Maximum of legal ownership of potentially infinite duration. Examples: CL: "To grantee and his heirs." ML: "To grantee." No restrictions on alienability (right of first refusal or conditions are allowed). When in doubt, courts construe conveyances as fee simple absolute.  Fee simple determinable: Fee simple estate which continues until the happening or nonhappening of a stated event, at which time estate automatically reverts back to grantor. Example: "X grants property to A so long as [until, while, during] property is used as a school."  Fee simple subject to condition subsequent: Fee simple estate which may be terminated upon the happening or nonhappening of a stated event, grantor may reenter the land. Example: "X grants property to A, but if [provided that; subject to the condition that] the property is not used as a farm, X may reenter." But "property to A to be used for residential purposes only" is a mere covenant, with no right to reclaim.  Fee simple subject to executory interest: Fee simple whose ownership passes to another grantee upon the happening of a stated event. Original grantor retains no rights. Example: "X grants property to A, as long as land is used as a farm, if not, then to B" or "X grants property to A, but if A dies without issue living at his death, then to B and his heirs."  Mere contractual obligation: Not a defeasible fee. Occurs when X grants to A, "subject ot the understanding that (some requirement)". Only remedy for X is breach of contract.  Fee tail: Fee simple whose inheritance was limited to grantee�s lineal descendents. Example: "To B, and the heirs of his body" or "To B, and the male heirs of his body." Fee owner (B) may alienate only for the duration of his life � at death, estate passes to his lineal heir. If no heirs, it reverts back to grantor. Modern law treats it as a fee simple absolute, or a life estate with vested remainder in grantee�s issue.  Life estates: Fee simple where a duration is measured by live of human being. Example: "X to A for life of A" (reversion to grantor) or "X to A for the life of B" (per autre vie � life of someone other than grantee).

  1. Life tenant is entitled to beneficial use of the land, but may not impair the value of the estates and interests owned by others, nor exploit natural resources where no prior use had been made. No duty to insure estate, and no responsibility for TP damage.
  2. Must pay interest on the mortgage and ordinary taxes, but the remainderman is liable for paying the principal. Assessments for permanent improvements are apportioned between life tenant and future interest holders.
  3. Life tenant cannot convey any more of his estate than he owns (i.e. can�t sell someone a fee simple).
  4. Never limited by time � only by life. But restrictions which result in forfeiture is ok.
  5. Dower: Widow entitled to life estate in 1/3 of lands her husband accumulated in fee simple during the marriage. Cannot be defeated by conveyance, even to BFP, unless wife joins in conveyance or releases dower. ML abolished in favor of intestate succession.  Cutsey: Widower entitled to life estate in all lands owned by wife during marriage. Marriage must have been legal, wife must have owned land in fee simple or fee tail, and wife must have had issue born alive by the husband, wife must predecease husband. ML abolished in favor of intestate succession.  Rule in Shelly�s Case: If freehold estate is given to a person for life, and in the same conveyance a remainder is limited to heirs of that person, then grantee takes in fee simple. Rule has been abolished in most states.  Doctrine of worthier title: A to B with remainder to A�s heirs. Remainder is cut off, and reversion in fee back to A after B�s life estate expires. Theory is that title by descent is worthier than title by devise. Does not apply if the remainder is to a named person, even if that person is grantor�s heir. Abolished in CA.  Merger: "A to B for life then to B�s heirs" is merged into a fee simple in B. Estates must be successive and vested.
Future interests

  1. In Grantor

  1. Reversion: Estate remaining in the grantor who has conveyed a lesser estate than that owned by the grantor. Example: "X to A for life of A." Reversion consists of X�s estate minus A�s estate. Can be created by a fee tail, life estate, or contingent remainder which does not vest. Interest is alienable.  Possibility of reverter: Interest retained by grantor of a fee simple determinable. Example: "X to A as long as the land is farmed." Reversion takes effect automatically upon happening of event. Not alienable inter vivos. Continued occupation by A beyond reversion will trigger adverse possession.  Power of termination / Right of reentry: Created when grantor grants fee simple subject to a condition subsequent. Not alienable inter vivos. Continued possession by grantee is not adverse, until grantor institutes legal action to recover the land. Failure to take action within reasonable time may waive the right. Example: "A to B provided that B grows corn."
In Grantee

  1. Remainders: Future interest in TP which is intended to take effect after natural termination of preceeding estate. Example: "X to A for life, then to C and his heirs" or "X to A for life, then if B survives A, to B and his heirs" (X has a reversion which may be eliminated if B survives).

  1. Requirements

  1. Express creation
  2. Must be in favor of a transferee (C) who is different from grantor (X)
  3. Must be created at same time and in same instrument as the creation of the estate which preceeds it (grant to A)
  4. Preceding estate must be of less duration than interest of conveyor (X).
  5. Remainder must take effect as a present interest in possession immediately upon termination of prior estate.
  6. Preceding estate must be either fee tail, life estate or estate for years, but never fee simple (that would be an executory interest, or simply invalid).
  7. Remainderman must be alive at time remainder is created. If not, the remainder is terminated by his death, and no descendable interest was created.

  1. Characteristics

  1. Takes effect only after natural termination of prior estate.
  2. Contingent remainders falls within rule against perpetuities, but vested does not.
  3. Vested remainderman has right against prior estate holder for waste, and to require prior estate holder to pay taxes and interest on encumbrances. Contingent remainderman does not.
  4. Alienable, devisable, inheritable.

  1. Vested: Created in ascertained and existing person (C) that is not subject to any condition precedent except natural termination of preceeding estate. Right to immediate possession upon termination of prior estate. Example: "X to A and the heirs of his body, remainder to C and his heirs" or "To B for life, then to C for life." Not subject to RAP.

  1. Absolutely vested: Limited to ascertainable or identifiable person without words of condition, and not subject to divestment. Ex: "X to A for life then to B".  Vested subject to partial divestment (or open): Remainderman is in existence and ascertained, but amount of estate could be dimished in favor of other members of class. Ex: "A to B for life, then to C and his heirs."  Vested subject to complete divestment: Remainderman is in existence and ascertained, and interest not subject to condition precedent, but right to possession or enjoyment is subject to termination by executory interest, power of appointment, or right of entry. Ex: "X to A for life then to B and heirs, but if B dies without heirs, then to C." Vested person has right against prior estate owner for waste and contribution for taxes and interest on mortgage.
Contingent: Remainder created in favor of ascertained person but subject to condition precedent, or is created in favor of unascertained or unborn person. Ex: "X to A for life, remainder to B and his heirs, if B marries before A�s death" or "X to A for life, remainder to B for life if B survives X." or "X to A for life, then to B�s children" (B has no children).

  1. Subject to RAP.
  2. No right against prior owner for waste or contribution for taxes or interest on mortgage.
  3. No right against tenant in possession
  4. Non destructible
  5. Subject to claims of creditors
  6. Versus executory interest: Remainder cannot follow a fee simple, and cannot cut short a preceding vested estate.
Successive: A to B for life, then to C for life, then to D for life�Executory interests: Cuts short a prior estate in a fee simple subject to executory interest. Future contingent interest created in favor of transferee in the form of springing or shifting use, which on the happening of the described contingency will be executed into a legal estate which cannot be described as a remainder. RAP applies.

  1. Characteristics

  1. Transferee must be different from grantor: Different from possibility of reverter or right of reentry, which allows grantor to regain estate.
  2. Always contingent � never vested.
  3. Cuts short prior estate upon happening or nonhappening of stated event or contingency � not after natural termination of preceeding estate.
  4. CAN follow a fee simple.
  5. Alienable, devisable and descendable.

  1. Shifting: Cuts short prior estate in favor of another grantee. Ex: "X grants to A for life, but if A goes bankrupt, then to B and his heirs". B will only get if A goes bankrupt, otherwise it reverts to X when A dies.  Springing: Cuts short reversion held by grantor. Upon contingency, estate passes back to grantor then to grantee #2. Ex: "X to A and his heirs, but if A goes bankrupt, then one year later to B and his heirs." During the one year lapse, estate reverts to X, then to B. Or "X to A and his heirs upon A�s marriage."  Devise: Created by will, as opposed to grant or deed.
Rule Against Perpituities: No contingent interest exists unless it must vest or fail, if at all, no later than 21 years after some identifiable life in being at the time the interest is created.

  1. Gestation time (9 mos) is added to the 21 yrs.
  2. Everyone presumed to be able to have children.
  3. Options to purchase land in the future: May violate if option is to "X or his heirs", because the heirs haven�t yet been determined until he dies, which may not occur w/in 21 years.
  4. If the gift fails for RAP, only the offending part of it fails, not the entire transaction.
  5. If there is any situation that won�t satisfy the rule, then the rule is violated.
  6. Class gift

  1. Vests only when class closes and all conditions precedent for every member of the class have been satisfied. Class closes when parent of class dies, or when any member of class can demand possession.
  2. Entire class gift void if any member violates RAP.
  3. Class gifts to grandchildren: Violation of RAP usually occurs in an inter-vivos grantor, where there is a greater chance of after-born children, rather than testator, where there is less of a chance of after born children.
  4. Class must not be so large that it can�t be practically determined by ordinary evidentiary processes.
Applies to: Contingent remainders, executory interests, option to purchase land not incident to a lease, special powers of appointment (not general powers, which are akin to property ownership). Does not apply to present possessory interests, reversions, vested remainders, possibilities of reverter, powers of termination, charitable trusts, resulting trusts. Example: "A to B for life, then to first child of C who attains age of 21 yrs, before or after death of B." This is ok, because after C (life in being) dies, within 21 years, the interest must either vest or fail, because a child of C must have attained the age of 21 by that point (or no child will exist � and interest will fail). But: "A to B for life, remainder to B�s children who attain the age of 22" violates RAP because child could be born after B�s death, and wouldn�t vest within 21 years.Restraints on alienation: Restrict grantee�s power to convey property to others.

  1. Estate restrained

  1. Invalid if imposed on fee simple.
  2. Concurrent estates: Restraint limiting power of joint tenant or tenants in common to seek partition are usually upheld.
  3. Restraints on non-fee simple estates are commonly upheld (non-assignment clause), but not if it violates the RAP.
  4. If restraint is voided, grantee takes free of restraint.

  1. Type of restraint

  1. Disabling: Withholds power of alienation ("any transfer is void"). Always void.
  2. Forfeiture: Grantor may terminate estate if conveyance is made (condition subsequent). Void only if fee is involved.
  3. Promissory: Grantee�s promise not to alienate.

  1. Extent

  1. Restraint may be total or partial.
  2. Time: Restraint must be limited in time.
  3. Persons: Prohibited if restraint is used to discriminate against religion, race, social groups (14th Amendment).
  4. Preemptive right or right of first refusal are upheld, so long as they don�t violate RAP. If right is limited to grantor, no problem because the grantor is the measuring life. But invalid if grantor "and his heirs" have the right.
Concurrent estates: Ownership/possession by 2+ persons at same time.

  1. Joint tenancy

  1. Creation

  1. CL (and MBE): "to B and C and their heirs" or "to B and C with right of survivorship" does the trick, but ML disfavors and therefore express creation is required, otherwise tenancy in common results.
  2. Created by deed or will, never descent.
  3. Two or more grantees or devisees.
  4. CA, as a community property state, treats J/T as community property for purposes of dissolution (see community property outline for more details).
Four unities:
Time: Interest must vest at same time. Title: Interest acquired by same instrument. Interest: Interest of same type and duration. Possession: Each J/T given identical rights of enjoyment.Each tenant owns an undivided equal interest in whole estate.  Severance
Express agreement Suit for partition by either J/T. The land can be split physically, or else court will order sale and split the proceeds. Ineffective until final decree is ordered. Severance of one of the four unities,by either tenant, results in tenancy in common. If there are 3 or more tenants, joint tenancy remains between the remaining original tenants, who have a tenancy in common with the new tenants.

  1. Conveyance of interest
  2. K for sale
  3. Foreclosure by creditor
  4. Mortgage of property in a title jurisdiction
Right of survivorship: Upon death of one tenant, title passes to surviving J/T.Tenancy by the entirety
Ownership by both H and W, with right of survivorship. TTIPP unities: Requires unity of time, title, interest, possession, person (H&W). Severance by death of either spouse (right of survivorship), divorce (converts to tenants in common), conveyance by both parties, execution by joint creditor (one spouse alone cannot convey or encumber the estate). No right to partition, and no ability of one spouse to unilaterally destroy tenancy.Tenancy in common
Co-tenants own undivided, separate, distinct share of property, which need not be equal in size. Each T has right to possess and enjoy whole property. When one co-tenant wrongfully ousts other tenant from possession, ousted tenant has COA against tenant in possession for ouster. If ousted tenant does nothing, adverse possession would apply. Each tenant can dispose of his interest by conveyance or devise. No right of survivorship. Destroyed by partition or merger.Rights and duties of co-tenants

  1. Fiduciary duty exists between co-tenants.
  2. Each tenant has the right to possess and enjoy the whole estate.
  3. Tenant in possession can retain profits gained from her use of property, and need not share with other tenant, unless outster or agreement. T in possession primarily responsible for paying taxes and mortgage interest (not principal). If no T�s in possession, all liable for proportionate share of taxes and mortgage payments, and can obtain reimbursement, and must share profits.
  4. No right to extract minerals or timber without sharing profits.
  5. No right of contribution for necessary repairs or improvements, unless partition, in which case court can take expenditures into consideration to make an equitable division of the proceeds. But this will be offset by the value of the occupancy by the J/T when the other was absent.
Leasehold/Nonfreehold estates (possession)

  1. Duties

  1. Express terms control
  2. T�s duty to pay rent

  1. Consideration paid for use and enjoyment of the land.
  2. Independent of any duties LL has, other than warranty of quiet enjoyment and habitability.
  3. Not pro-rated: LL cannot collect for partial term.
  4. Not extinguished upon destruction of premises, even if it�s an act of god (that�s the CL rule; ML does excuse duty to pay rent). Extinguished upon:

  1. LL release (T surrenders premises and LL accepts)
  2. Merger: T purchases property
  3. Expiration of lease
  4. Eminent domain: If complete taking. Partial taking only gets compensation.
  5. Constructive eviction: Material breach by LL which violates T�s implied covenant of quiet enjoyment and T quits possession
  6. Frustration or impossibility of purpose (illegality)
  7. Surrender
If T abandons, LL can accept surrender by retaking premises (terminates T�s liability), or re-rent premises and hold T liable for deficiency.T�s duty to repair
T has affirmative duty to make ordinary repairs, regardless of the cause of the damage. No liability for ordinary wear and tear. LL has no duty, unless he undertakes repairs and is negligent (tort).T�s duty of care (tort liability)

  1. No duty to trespasser unless anticipated or discovered, in which case duty to warn of known dangerous conditions which trespassor would not discovery himself.
  2. Licensee: Duty to warn of known dangerous conditions.
  3. Invitee: Duty to inspect and make safe.
LL duty to deliver possession of premises

  1. American/minority rule: No duty to deliver, and T has burden of evicting holdover tenant in possession. But because T does not acquire legal interest until actual possession taken, no rent is due until T comes into possession.
  2. English/Common Law: LL impliedly warrants that T will have legal right to possession at beginning of leasehold term. Failure of LL to provide possession gives T damages of costs for moving to new location and increased rental costs at substitute location for duration of initial term.
LL duty to warn of dangerous conditions (fitness of premises)

  1. LL not liable for dangerous conditions on premesis (caviet emptor prevails), except LL is liable for known (or should have known) hidden defects which existed at commencement of lease and which T would not reasonably discover and which injures T or guests.
  2. LL is liable for dangerous conditions if premises is furnished and leased for short period of time.
  3. LL liable for maintaining common areas.
  4. LL has duty to comply with building codes, health codes, etc. (implied warranty of habitability).
  5. LL cannot contractually shift this duty to T.
Quiet enjoyment
Every lease contains implied covenant of quiet enjoyment. LL�s actual (total or partial) or constructive (uninhabitable) eviction breaches this covenant, and relieves T of duty to pay rent. T must vacate within reasonable period of time of breach and sue for damages.Implied warranty of habitability
If the LL fails to maintain the residence as habitable, T may either vacate and recover damages resulting from LL�s breach, or remain in possession and reduce rent in an amount equal to diminished value of premises. Warranty is breached when the premises fails to comply, in a significant manner, with housing or building code.Conveyance
SOF applies, and writing must contain the following elements: Identity of lessor and lessee; describe land; state term of lease; set forth amount of rent. Oral tenancy of greater than one year is unenforceable.  Tenancy for term/years: Fixed duration specified in lease. Ends automatically, unless parties agree to renew. Also ends upon surrender.  Periodic tenancies: Tenancy is automatically renewed at expiration of previous tenancy (i.e. month-to-month). Proper notice required to terminate (i.e. 30 days). Created expressly or by implication.  Tenancies at will: Created by absence of lease agreement. Terminable at will of either party, without advance notice, but converts to periodic tenancy if periodic rent is paid to LL. Continues until terminated by death of either party, waste by T, assignment by T, transfer of title by LL, or lease by LL to other T.  Tenancies at sufferance: T wrongfully remains in possession (holdover) after expiration of tenancy. T liable for rent for possession, and LL can either sue, or elect to create a new periodic tenancy on terms of prior periodic tenancy. Similar to trespass, except that entry was lawful. Most state prohibit LL self-help (forcible entry).  Assignment & subleases
Absent express K prohibition (which must be very specific), T can freely transfer her leasehold interest in whole (assignment) or in part (sublease). K prohibitions are fully enforceable. If LL waives one assignment (such as by accepting rent from T2), he looses power to avoid any future assignment.  Assignment: Transfer of everything T1 has. LL can sue T1 and T2 for rent, but not T3.  Sublease: Transfer of less than what T1 has. LL can sue T1 for rent, but not T2. Includes letting someone store your stuff at your place for a fee. Doesn�t include giving a license to someone to enter onto your land.  Covenants which run with the land will apply to T2 if T2 is in privity of estate with LL (assignments, but not subleases)Fixtures
A fixture is a chattel (something movable) which is attached to the land with the intention that it become part of the realty.

  1. Intention of owner, given nature of article, manner and permanence of attachment to land, injury to land upon removal, completeness of integration with use of land, relation of chattel owner to land, and depreciation of land value upon removal.
  2. Chattel must be attached, actually or constructively, to realty
  3. Chattel must be appropriate for purpose for which land is used.
A fixture, other than a trade fixture (used in trade or business), may not be removed from the land by the occupier when she vacates. Trade fixture can be removed before expiration of lease, but only encompass chattle � not buildings added to the land. Trade fixtures belong to tenant, not mortgagee, when landowner defaults. Duty to repair damage caused by removal. Washers and driers are never fixtures.Eviction
Occurs where LL or paramount title holder excludes T from possession. Covenant of quiet enjoyment breached by eviction and relieves T�s duty to pay rent. LL must never use self-help: Must use judicial process (unlawful detainer).  Constructive eviction: When LL is responsible for T being substantially deprived of beneficial enjoyment of the premises, T is relieved of obligation to pay rent and may recover damages. N/A if act of god. At CL, LL didn�t have duty to repair other than common areas, therefore no constructive eviction by failure to repair structure�s natural deterioration or conditions over which LL had no control.  Retaliatory eviction: LL may not retaliate against T solely because T has exercised a state, federal or constitutional right, or has reported housing code violations to appropriate authorities. Precludes eviction, increasing rent, or decreasing services within a short period of time after protected action is taken by T. Even protects opposing rezoning and unionization of T�s.Surrender, mitigation of damages, and anticipatory breachNonpossessory interests

  1. Licenses
Permits a person to come onto the land of another without being viewed as a tresspassor. Not an interest in land: Much less significant than an easement. No writing required. Doesn�t run with the land. Personal in nature: Not assignable absent contrary agreement. Generally revocable at discretion of licensor, but irrevocable if coupled with an interest (reliance). Example: Free parking at shopping center ($2 parking would be a K � still revocable, but damages for breach of K); ticket to go to an entertainment or sporting event; hotel K (because guest doesn�t have exclusive possession).Profit
"Profit-a-prendre" Right of one person to go onto the land of another and extract a product (i.e. ice or oil, but not water) from that land. Easement for access is implied. Assignable, but extinguished upon overuse. Like an easement, these come in affirmative, negative, appurtenant and in gross varieties.Easements

  1. Creation

  1. Express by deed or will (SOF applies)  Prescription / Estoppel
Adverse use (not with permission) Open, visible, notorious Continuous & uninterrupted (seasonal use ok if appropriate for property) For statutory period May create a new easement, or expand the terms of an existing one. Different from adverse possession in that easement is created by use, whereas adverse possession is created by occupation.Implication
Original parties almost certainly would have agreed to easement; Common ownership of dominant and servient tenements at time of conveyance which severed the parcels, and owner retained one parcel; Alleged easement had, prior to the severance, been utilized for the purpose presently claimed; Use claimed is reasonably apparent from an inspection of the premises; and Easement is reasonably necessary for enjoyment of the dominant tenement. Types

  1. Grant: Grantor subdivides land and makes grant of landlocked land to grantee, grantee only has to show easement is reasonably necessary.
  2. Reservation: Grantor reserves easement for himself when he sells dominant lot. Must be strictly necessary.
Necessity
Dominant and servient tenements were under common ownership at time of division; and Strict necessity for easement existed when tenements were severed (i.e. landlocked property).Types

  1. Appertinant: Two parcels, one dominant, one ajoining servient. Dominant tenant can come onto servient land to make use of it, and is benefited from the easement. The easement runs with the servient land � enforceable by and against successors in interest to the original parties (conveyance of dominant estate transfers ownership of easement as well).  In Gross: Personal right to use servient tenanent subject to easement � no dominant tenement. Example: Letting your neighbor use your jacuzzi, or city sewer line going through your property, or telephone polls in front yard. Usually does not run with the land without "successors and assigns" language (but utility company easements do run to successive owners).  Affirmative: Allows owner to make affirmative use of subservient tenement � i.e. utility company right to ingress and egress. But no removal of things on the land.

  1. Owner of servient tenement can normally use the easement as well, but may not unreasonably interfere with dominant tenement�s easement (i.e. block the road).
Negative: Prevents servient tenament owner from doing some act or making some use of her land (usually regarding air, light, lateral support, subjacent support or control of artificial stream). Example: No structure will be built on A�s land (which would block B�s view of the ocean). Does not given dominant tenant any rights to do something on servient tenement land.Easement holder has right to enter servient tenement to repair, maintain and improve the easement, without liability for damages to the land, so long as his use is reasonable. Excessive use, beyond what was intended at creation, requires injunction to stop misuse. If scope isn�t express, a reasonable one will be implied. Easements for light, air and view are not implied, due to effect of restricting land development.Covenant
Best way to require grantee to do something. Requirements

  1. Writing
  2. For burden to run, there must be horizontal privity between original contracting parties; and vertical privity between party to covenant and party against whom enforcement is sought.
  3. For a benefit to run, only vertical privity is required.
Negative covenant differs from negative easement in that easement must be recorded, whereas covenant must satisfy requisites of running with the land. Types of covenants

  1. Covenant to pay rent
  2. To insure buildings on the premises
  3. To pay taxes on the premises
  4. Option to purchase
  5. Not to sell intoxicating liquor
  6. To build a structure
  7. Not to assign or sublease
  8. To supply water, light or heat
  9. But not: Covenant not to compete; to pay promissory note; to pay taxes on other land; personal K�s.
Remedies

  1. At law: Money damages
  2. Equity: Injunctive relief
Extinguishment

  1. Merger
  2. Release
  3. Condemnation
  4. Abandonment
Equitable servitude
Agreement between two parties not to do something regarding land use, enforced in equity by injunction (versus covenant, which is enforced at law by money damages). Requirements

  1. Writing
  2. No privity required
Implied reciprocal servitude
AKA "negative equitable servitude" Common scheme: Where subdivider intentionally creates common development scheme, any lot owner within scheme can enforce, even if the deed to one of the lots doesn�t mention the scheme. That lot owner should have had reason to expect that his land would be burdened by the scheme (inquiry notice by virtue of the fact that all the other lots had restrictions, or common development scheme filed with recorder�s office).Defenses

  1. Unclean hands
  2. Estoppel
  3. Substantial change in character of neighborhood (residential to commercial). But mere zoning ordinance change won�t extinguish.
Extinguishment

  1. Merger
  2. Release
  3. Condemnation
  4. Substantial change in character of neighborhood (residential to commercial). But mere zoning ordinance change won�t extinguish.
Running with the land
For a profit, easement, covenant or equitable servitude to run with the land, it must:

  1. Benefit or burden the land: A benefit enhances the value of the land, a burden makes the land less valuable.
  2. Touch and concern the land: Affect the quality or value of the property.
  3. Intent of both parties for K to run with land. "Assigns or successors" term in K, otherwise, BFP not bound.
  4. For a burden to run, some type of notice is required (constructive, actual or inquiry). Grantee is charged with constructive notice of contents of adjacent properties when properties are derived from common grantor (collateral document rule).
Termination
Express date of expiration Merger: Dominant and servient tenements come into the hands of the same person [in fee simple?]. Not revived when owner then sells off a part of the land. Written release by dominant tenant which complies with SOF. Abandonment or non-use coupled with a clear showing that he intends to abandon the use (i.e. removal of equipment off of property). Prescription: Servient tenement owner has used her land in a way that is inconsistent with and adverse to easement for statutory period, without consent of easement holder (dominant tenement). Estoppel: Subservient tenant, in reasonable reliance on conduct by dominant tenant, uses servient tenement in a way that is inconsistent with easement. Involuntary destruction, condemnation, or eminent domain taking of servient tenament (dominant tenement owner entitled to compensation for condemnation or eminent domain to the extent of the current value of the net income which the holder would have received but for the condemnation). End of necessitySOF requirements
In order to be enforceable, transfers of interests in land must comply with SOF, except licenses. Must be signed by party against whom enforcement is sought. Oral agreement will be enforced when grantee accepts physical possession of deed, or grantee has done acts which are unequivocally referable to the existence of a promise or agreement to transfer the property to her.Rights incident to possession

  1. Adverse possession

  1. Based on the SOL for recovery of real property.
  2. Requirements

  1. Intent to claim non-public land as one�s own.
  2. Actual

  1. Satisfied by leasing someone else�s land to a TP.

  1. Hostile and adverse (without permission)

  1. Honest mistake of ownership qualifies
  2. Actual owner doesn�t have to know of T, and T doesn�t have to know that he owns land by adverse possession.
  3. Satisfied when actual owner should recognize that an ejectment action is necessary to preserve her ownership.

  1. Exclusive (sole physical occupancy)

  1. Satisfied by excluding a co-tenant, which would give occupying tenant the entire estate.

  1. Open and notorious (visible)

  1. Adverse claimant acts with respect to the land in a way that would be expected of the rightful owner.

  1. Continuous and without interruption (seasonal use ok depending on type of land � i.e. farming)

  1. Interrupted by dispossession of claimant by rightful owner or occupier or subsequent adverse possessor; ejection by rightful owner; or abandonment.
  2. Tacking (aggregation of time) between adverse possessors is ok if privity between them: Descent, lease, deed, will, written K, oral K, oral gift, or mere possession under permission.

  1. For the statutory period

  1. Begins to run when cause of action accrues against adverse possessor.
  2. If a statute specifically allows for tolling, an owner who is under a disability (minority, insanity, incarceration) at time of accrual of COA (beginning of adverse possession) has extra time to bring action. No tacking of owners with disabilities.
Limitations of claims

  1. Cannot acquire larger estate than he claims.
  2. Cannot claim title to less than a freehold estate (life estate, fee tail, or fee simple)
  3. Does not impair rights of non-possessory interests (easements).
If rightful owner ejects unlawful occupier, owner can recover reasonable rental value from occupier. Title acquired by adverse possession trumps a subsequent BFP of record owner. If under color of title (defective document), claimant acquires title to all of the land described in the document, not just the portion occupied.Nuisance
D caused a non-trespassory, substantial, unreasonable interference with p �s use and enjoyment of her land. Example: Dog barking at 2am, seeding clouds above the land.Lateral and subjacent support
Landowner has absolute right to have her land supported in its natural condition. One who withdraws support from below or on the side of neighbor�s land is strictly liable for damage to the land in its natural state, or if land has been improved, the extent to which the damage would have occurred to the land in its natural state. Liability for artificial structures (doesn�t include trees or shrubs) only if removal of support was negligent. Theory: Neighbor shouldn�t be liable for the added weight of artificial structures on the land, unless neighbor is negligent. Excavation on one�s land which releases semi-fluid material from neighbor�s land which causes neighbor�s land to sink, there is liability. No liability for interfering with underground percolating waters. If neighbor isn�t liable for support, he may be liable for negligence, or abnormally dangerous activity.Water rights

  1. Title to land under non-navigable streams is in the abutting owner and extends to the center of the stream. Title in navigable streams or lakes is usually in the state.  Surface lakes and streams

  1. Riparian rights (majority): Owners of property which borders lake or stream has right to use all the water needed for domestic purposes, and limited use for commercial purposes (prior commercial use has priority). Upper riparians can take all the water they need for domestic uses, cannot take for commercial purposes unless there is enough for domestic needs of lower riparians.  Prior appropriation (minority � states where water is scarce): First person to make beneficial use of the water, regardless of the purpose, has right protected against those who come later, so long as he continues to use the water. Subsequent users must not unreasonably diminish quantity or pollute.
Underground and percolating waters

  1. Surface owner can use water for any reasonable, for any purpose, without liability. Unreasonable use resulting in damage to neighbor results in liability.
Surface waters within owner�s land: Landowner has unlimited discretion in dealing with surface waters, regardless of effect on others (common enemy theory � no liability for damage). Minority: Each landowner has right to natural flow of surface waters and duty not to interfere with such flow.Crop rights
Fructus naturales: Trees, grasses, shrubs, and their fruits. Considered real property and part of the land, until severed. Passes with conveyance of land. If straddeling property line, then owned as tenants in common. Fructus industriales: Crops which come from man�s labor. Treated as personal property of land�s tenant, and proceeds go to tenant or his heirs. At sale of property, they are included within the scope of the sale unless excepted.

  1. A tenant and his estate has an irrevocable license to care for and harvest crops planted during his tenancy, if tenancy was for an uncertain term and not terminated because of tenant�s acts. Not entitled to subsequent regenerative crops. At the natural close of the tenancy, any crops not severed belong to LL.
  2. Crops which are severed but not removed still belong to tenant.
Waste
Tenants have a duty not to commit waste (unreasonable perminant reduction in property value).

  1. Unreasonable: In view of the use to which land was previously put. Removing timber or minerals is usually waste, but not if those things were previously extracted or grantor consented to or should have anticipated that use.
Voluntary: Caused by affirmative act of T. T liable.  Ameliorating: Change in physical characteristics of premises by unauthorized act of T but which increases value of premises. T ordinarily not liable if the estate was worthless in its earlier form. Example: Tearing down a forest to plant a crop is an ameliorating waste, because the ability to plant a crop is more valuable than a forest.  Permissive: Injury to premises by T�s failure to act when duty exists, such as failure to make ordinary repairs or pay taxes.  Equitable: Injury to reversionary interest in land, but which is not considered legal waste. Only remedy is injunction (and this is the only type of waste against which an injunction can be gotten). Usually occurs when "without impeachment of waste" clause appears in K. Example: Tenant can�t bulldoze a perfectly good hotel to replace it with a shed � not good business sense.Conveyancing

  1. K of sale

  1. Writing (SOF applies)

  1. Buyer (grantee) must be identified with reasonable certainty. Buyer can fill-in-the-blank if he is a BFP. Sufficient description of land to be conveyed

  1. Sufficient lead as to identity of property to be conveyed
  2. Parole evidence is admissible to clear up patent (on face of deed) ambiguity [another source says latent???].
  3. May be incorporated by reference
Price: Recitation of consideration or actual exchange of consideration is necessary for reasons of formality and tradition. Signed by grantor (seal not required; attestation/acknowledgement not required for execution, but may be required for recording).Nonfeasance/misfeasance: As-is clause in K is effective to waive nonfeasance.  Part performance is an exception to the writing requirement. Buyer must pay seller part or all of purchase price, and either take possession or make valuable improvements. K voidable if executor is insane or intoxicated.Equitable conversion
Applies between execution of K and closing Seller deemed to be equitable owner of balance of purchase price, and buyer is equitable owner of property (therefore treated as legal owner for most purposes). Risk of no-fault loss on buyer as soon as K is signed, so he should take out insurance to protect expectancy interest. If seller has insurance but buyer does not, seller must give credit to buyer for the insurance proceeds (to avoid double recovery). Seller�s death does not negate K, and seller�s estate must convey title upon payment of purchase price. Devisee of property under seller�s will will not get the land nor money (which will go to devisee of personal property). Buyer�s death means that estate pays purchase price and title goes to buyer�s heirs.Marketable title
Implied covenant in K that seller has good and marketable title on date of deed delivery. Even implied in a K for quitclaim deed.

  1. Marketable title: Title reasonably free from doubt in both fact and law, such that it would be acceptable to a reasonably prudent buyer.
Buyer can rescind K at closing if seller does not have good and marketable title at closing. Buyer cannot rescind K before closing � seller has until that time to acquire valid and legal title. Deed supersedes K, so if buyer accepts deed without warranties of title, he�s SOL. Defects negating marketability

  1. Title based on adverse possession (until judicial determination of title), outstanding mortgages, restrictive covenants, outstanding reverter rights, unremovable encumbrance, easement which adversely affects use of land and would be binding on grantee, variations in names of grantors or grantees, gaps in chain of title, outstanding dower interest, violation of zoning regulation, threat of a lawsuit (i.e. for violation of zoning regulation), zoning ordinances changed between K and closing, tax lien.
  2. Restrictions on the use of land do not constitute defect.
  3. A mortgage which is paid off by proceeds from the sale during escrow is not a title defect (this has to do with the timing of escrow � which doesn�t close until the very last second).
Damages: Difference between K price and value of land on day of breach. Specific performance available.Deed

  1. Writing
SOF applies Must be signed by seller and any other parties who have a present or future interest Name the grantee (can be filled in later) Must describe land with sufficient accuracy. Land description priorities: Natural monuments (highest priority), artificial monuments, courses, distances, name, quantity (lowest priority). Notarization and witnessing not necessary for validity, but usually required for recording. A forged deed is completely null and void, and subsequent BFP�s are screwed.Delivery
Requires that grantor intended to deliver an immediately operative deed (can be shown by words, conduct, and parole evidence).

  1. Execution and mailing of deed is delivery, even if deed doesn�t get received.
Presumed if deed in possession of grantee, or recorded. Negated if grantor has power to revoke. Conditions not included in the deed are ineffective once grantee has possession. If unrecorded deed is in possession or control of grantor, presumption that there has not been a valid delivery. Escrow: Deed delivered to TP with conditions (A gives deed to TP to give to B if condition met). When conditions are met, ownership passes to grantee even if physical delivery not yet performed. If grantee wrongfully receives deed (conditions not met), title has not transferred.Acceptance of conveyance by grantee. Presumed if conveyance is beneficial to grantee.  Types

  1. General warranty: Includes all six covenants.  Special warranty: Includes fewer warranties than general warranty deed, generally only those specified in the deed.  Quitclaim: Includes no warranties � grantee takes whatever grantor presently has. No after acquired property covered. Statute may specify that any interest in property is alienable, which would then cover contingent remainders.  Interspousal transfer deed: Quitclaim deed with after acquired property covered.
Covenants of title
Any covenants in K for sale merge into deed and are extinguished. Once buyer accepts deed, he can only sue on covenants contained in the deed. Example: K which contains covenants, followed by quitclaim deed � grantee has no covenants. Exception: Collateral promises. Breached, if at all, when deed is delivered (do not run with land):

  1. Seisin: Guarantees that grantor owns estate (title and possession) he purports to convey, and there are no future interests which will vest at a subsequent time. Damages is payment price plus interest.  Right to convey: Guarantees that grantor has the right and capacity to convey title and possession to the estate he purports to convey.  Against encumbrances: Property not subject to any outstanding and undisclosed encumbrances, profits, mortgages, liens or restrictions on the property which would affect value. Grantee�s knowledge of encumbrance is not a defense (some states contra). N/A to existances of a public way. Damages is difference in FMV.
Breached, if at all, after deed is delivered (run with land, and can be enforced by remote grantees); requires showing of damages:

  1. Quiet enjoyment: Buyer will not be disturbed in his possession or enjoyment of property by TP�s lawful claim of title (eviction). Promise to defend.  General warranty: Title is good, and promise to defend grantee against all lawful claims of grantor or TP�s who would evict grantee. Damages is payment price plus interest.  Further assurances: Grantor will do some further necessary act to perfect grantee�s title. Not used much in the U.S.
After acquired title (estoppel by deed)

  1. If a person executes a deed purporting to convey an estate which he does not own, and grantor later acquires that title, then estate passes to grantee. Subsequent BFP prevails over grantee if grantee failed to record deed.
  2. Usually N/A to quitclaim deed.
Priorities and recording

  1. Types

  1. Race/notice: BFP, without notice, who records unbroken chain of title first, wins.

  1. "Every conveyance which shall not be recorded is void as against any subsequent BFP whose interests shall be first duly recorded."
  2. "No unrecorded conveyance or mortgage of real property shall be good against subsequent purchasers for value without notice, who shall first record."
Pure notice: BFP, without notice, prevails over prior unrecorded conveyance.

  1. "No conveyance shall be good against any subsequent BFP unless the same be recorded."
Pure race: Whoever first records within the chain of title prevails, even if not BFP or has notice of prior transfer (no good faith required; only 2 race states: Louisiana and NC).Determines when BFP�s (not donees, heirs, devisees or gratuitous recipients) are protected against prior unrecorded conveyances

  1. BFP: Purchaser for value (even minimal or past value given), in good faith, without notice of prior competing interest.
  2. BFP is still a BFP even if up the chain there was a devise. A person who buys from an heir is protected against prior unrecorded conveyances of the ancestor.
  3. Shelter rule: Grantee of a BFP has priority over any interest which grantor (the BFP) would have prevailed against.
Unrecorded deed is valid between the parties, and against non-BFP�s without notice. Only affects subsequent purchasers. A deed outside the chain of title (would not be discovered in reasonable title search) is deemed not recorded.  Notice
Actual Constructive notice: Circumstances which appear in the grantee�s unbroken chain of title. Includes contents of unrecorded documents referenced by recorded instrument. Inquiry: Anything suspicious in deed or on land (unexplained possessor).Not applicable to adverse possession. Errors: Burden is on filer to ensure that there are no errors in recording. Person purchasing property will want to look up his grantor�s name in both the grantee index and the grantor index.Boundary line agreement
Parties unaware of true boundary line; Express or implied agreement as to location, even if not in writing; and Possession conformed to agreement. Binding upon subsequent purchasers, but they may sue their seller for breach of covenant against encumbrances.Remedies
Specific performance where substantial part performance exists, else damages (FMV � K), and restitution for monies spent. Because specific performance is an equitable remedy, equitable defenses are available, such as if p would be unjustly enriched. If seller cannot convey full marketable title (i.e. land isn�t as large as they thought) but buyer wants to complete the transaction, buyer can obtain abatement of purchase price.Mortgages

  1. Mortgage is a security interest for performance (payment) of debt.

  1. Instruments: Note is evidence of debt, mortgage is security for the debt. Mortgage must be recorded to be effective against BFP�s.
  2. Parties: Mortgagor is the person taking out the mortgage. Mortgagee is the bank.

  1. Types

  1. Lien theory jurisdiction: Mortgage creates a lien on the land (majority), but legal title remains with purchaser.  Title theory jurisdiction (CL and minority view): Mortgage operates as a conveyance of the legal title on the mortgage, subject to defeasance upon payment of the mortgage debt.
Redemption after default
Equity: Mortgagor can pay off mortgage (and expenses) prior to foreclosure to reacquire title. Statutory: Mortgagor can redeem for some fixed period after foreclosure, even if the property has been sold to a BFP. BFP doesn�t have to give back the property, but mortgagee has to give mortgagor the value of the property.Priorities
Prior mortgage prevails over subsequent one. Unrecorded mortgage is not protected. But if mortgage is assigned to a TP, the TP doesn�t have to record to protect so long as initial mortgage was recorded (TP should record, but not required to). If foreclosure proceeds are insufficient, deficiency judgment is allowed.  Transfer by mortgagor: Grantee who "assumes the mortgage" becomes personally liable for mortgage and deficiency judgment (mortgagee is an intended beneficiary of the sale from grantor to granee). Otherwise, only recourse for mortgagee is to foreclose on the land (indicated by "subject to the mortgage" or silent deed).Foreclosure
Types

  1. Strict foreclosure (CL/minority): Foreclosure meant literally foreclosing or barring the mortgagor from redeeming his land in equity (equity of redemption). It was in the form of a decree that if the mortgagor didn�t redeem his land by paying the debt by a certain date, he would be foreclosed from ever redeeming.
  2. Modern law foreclosure allows bank to sell the property and apply the proceeds to the debt, then to junior incumbrancer, then refund to debtor (or sue debtor for deficiency). Sale must be by public auction � not private.
Junior encumbrancer (2nd mortgage bank) must be made a party to the foreclosure by the senior encumbrancer (1st mortgage bank) to eliminate junior�s claims, otherwise, junior retains his right to redeem or foreclose In a foreclosure by a junior encumbrancer, senior mortgage is unaffected by the proceedings. Fixtures: Mortgagee has priority over mortgagor for fixtures, except that trade fixtures belong to tenant.Installment land K: Forfeiture clause says that if debtor misses a payment, seller can cancel K, keep all money paid to date, and keep the property (harsh, but enforced).Land use control

  1. Zoning

  1. May be used to segregate incompatible uses from developing in the same area. Single family residences are the highest use, and commercial/industrial is the lowest use.
  2. Cumulative use zoning allows for higher uses to be built on land zoned for a lower use. Noncumulative zoning prohibits such hierarchy.
  3. Density control: Height limitations, setback requirements.
  4. Constitutional issues: Presumed valid under police power of the state.
  5. Procedural due process requires notice and opportunity to be heard.
  6. Substantive DP requires rational relationship to permissible state interest, such as health, safety and general public welfare.
  7. Equal protection requires that similarly situated landowners be treated similarly. Rational basis test is used, unless suspect class or fundamental interest, which gets strict scrutiny. Protects against spot zoning; requires comprehensive planning.
  8. 5th Amendment requires just compensation for taking. Nonconforming uses are generally allowed to remain, while subsequent development can be curtailed.
Eminent domain
Government takes title to the land, physically invades the land, severely restricts the land, or extracts a public benefit from the land. 5th Amendment requires both due process (i.e. prior hearing) and just compensation prior to taking. Regulation which protects the public from harm is a valid exercise of state�s police power, and non-compensatable. Partial taking does give damages. Example: City gives cable company exclusive monopoly and requires landowners to allow cable boxes on their homes. Property owner entitled to compensation. State may permit free speech at private shopping centers if activities do not unreasonably interfere with landowner�s use of property. When a non-possessory interest (easement, profit) is taken, the dominant tenement owner is entitled to compensation for condemnation or eminent domain to the extent of the current value of the net income which the holder would have received but for the condemnation. When a leasehold is taken, tenant is not owed a reduction in rent, but may be able to get an apportionment of the condemnation award. 

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