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Flashcards in Property Deck (186):

Ways to Transfer Property

1. Sale
2. Gift
3. Devise
4. Intestate Succession


Present Interests in Land

1. Fee Simple
2. Defeasible Fees
3. Life Estate
4. Fee Tail


Fee Simple

Capable of lasting forever

Created by "and his heirs" or ambiguous language
- don't be fooled by words of intent or purpose


Defeasible Fees

May be terminated by the occurrence of an event, but capable of lasting forever

- Fee Simple Determinable
- Fee Simple Subject to Condition Subsequent
- Fee Simple Subject to Executory Interest


Fee Simple Determinable

Limited by specific durational language

Terminates automatically

Future Interest: Possibility of Reverter (held by grantor)


Fee Simple Subject to Condition Subsequent

Limited by specific conditional language
- Language must suggest that the grantor must exercise a right in order to take possession

Future Interest: Right of Reentry (held by grantor)


Fee Simple Subject to Executory Interest

Will end upon the happening of an event and the future interest will vest in a third party (someone other than the grantor)

Future Interest: Executory Interest


Executory Interest

Future interest that will divest an earlier interest


Life Estate

Present estate that is limited by a life

Created by "for life"
- if ambiguous, look for the grantor's intent to create an estate that will end upon the death of a measuring life

Ends when the measuring life dies

Future interests -
Reversion (in grantor)
Remainder (in third party)


Three Kinds of Waste

1. Affirmative
2. Permissive
3. Ameliorative


Affirmative Waste

Waste caused by voluntary conduct, which causes a decrease in value


Permissive Waste

Waste caused by neglect toward the property, which causes a decrease in value


Ameliorative Waste

Special situation where person in possession changes the use of the property and actually increases the value of the property


Doctrine of Waste Situations

- Future vs. Present Interest Holder
- Landlord vs. Tenant
- Co-tenant out of possession vs. Tenant in possession
- Mortgagee vs. Mortgagor


Concurrent Estates

Ownership or possession of real property by two or more persons simultaneously

Basic Rule: Concurrent owners each have right to use/possess the whole property (unless contracted otherwise)


Kinds of Concurrent Estates

1. Tenancy in Common;
2. Joint Tenancy; and
3. Tenancy by the Entirety


Tenancy in Common

Default concurrent interest
- No right of survivorship
- Each co-tenant can transfer the property freely at death as well as during life


Joint Tenancy

Defining characteristic is the right of survivorship, whereby the surviving joint tenant(s) automatically take the deceased tenant's interest

Grantor must make clear expression of intent; PLUS
survivorship language

Four unities must be in place


Four Unities


1) Possession: every joint tenant must have equal right to posses the whole of the property

2) Interest: joint tenants must have an equal share of the same type of interest

3) Time: joint tenants must receive their interests at the same time

4) Title: joint tenants must receive their interests in the same instrument of title



If any of the unities are severed, then the joint tenancy is terminated and terns into a tenancy in common with respect to the transferred share


Severance: Inter vivos transfer

A transfer during life will destroy the right of survivorship and convert the estate into a tenancy in common


Severance: Mortgages

Lien Theory (Majority): Mortgage is a lien and does not destroy the joint tenancy

Title Theory (Minority): Mortgage severs title and the tenancy between the joint tenants and creditor is converted into a tenancy in common


Severance: Leases

Split in jurisdictions

Some hold that a lease severs the joint tenancy

Others treat the lease as a temporary suspension of the joint tenancy


Tenancy by the Entirety

Joint Tenancy between married spouses
- Fifth unity is marriage
- right of survivorship

Tenants by the entirely cannot alienate or encumber their shares without the consent of their spouse


Rights and Obligations of Concurrent Owners: Possession and Use

Each co-tenant has right to possess all of the property, regardless of that co-tenant's share and regardless of the type of co-tenancy

Exception: When co-tenants have entered into an agreement to the contrary



When the co-tenant in possession denies another co-tenant access to the property, the ousted tenant can:
- get an injunction granting access to the property, and/or
- recover damages for the value of the use while the co-tenant was unable to access the property


Concurrent Estates: Third-Party Rent

Rent received from a third party's possession of the property, minus operating expenses, are divided based on ownership interests of each co-tenant


Concurrent Estates: Operating Expenses

Necessary charges, such as taxes or mortgage interest payments

- Divided based ownership interests of each co-tenant
- A co-tenant can collect contribution from the other co-tenants for payments in excess of her share of the operating expenses


Concurrent Estates: Repairs

There is no right to reimbursement from co-tenants for necessary repairs

The co-tenant who makes the repairs can get credit in a partition action


Concurrent Estates: Improvements

There is no right to reimbursement from co-tenants for improvements

The co-tenant who makes the improvements can get credit in a partition action



Equitable remedy available to all holders of a tenancy in common or joint tenancy
- unilateral right

Partition in Kind: physical division; preferred by courts

Partition by Sale: Court will order a partition by sale if the physical partition is:
- Not practical; or
- It is not fair to all parties

Proceeds are divided among the co-tenants based on their ownership interests


Agreement Not to Partition

Co-tenants can agree not to partition. Enforceable, provided:
- Agreement is clear; and
- Time limitation is reasonable


Springing vs. Shifting Executory Interest

Springing: Divests the grantor
Shifting: Divests the prior grantee


Vested Remainder

Interest that is:
1) Given to an ascertained grantee; and
2) Not subject to a condition precedent


Vested Remainder Subject to Open

- Vested Remainder in a class gift; and
- Full class membership is unknown


Rule of Convenience

Prevents classifying an interest as Vested Subject to Open and therefore avoids RAP.

If the grant doesn't have an express closing date, the Rule of Convenience closes the class when any member of the class becomes entitled to immediate possession


Doctrine of Worthier Title

Prevents against remainders in grantor's heirs
- creates a presumption in a reversion to the grantor


Rule in Shelley's Case

Prevents against remainders in a grantee's heirs
- uses the doctrine of merger to create a fee simple


Relevant Life

Person who affects vesting, usually mentioned or implied by the grant


Validating Life

Person who tells us whether or not the interest vests within the perpetuities period (lifetime plus 21 years)

- must have been alive when the interests were created
- can validate her own interest
- if no validating life, then interest is no good and we strike it from the grant


Rule Against Perpetuities

“No interest is good unless it must vest, if at all, not later than twenty-one years after the death of some life in being at the creation of the interest.”


RAP and Class Gifts

If the gift to any member of the class is void under RAP, then the gift is void as to all members of the class
- Can be saved by Rule of Convenience


Exceptions to the Class Gift Rule

1) Transfers of a specific dollar amount to each class member; and

2) Transfers to a subclass that vests at a specific time


RAP Exceptions

1) RAP does not apply to a gift from one charity to another charity

2) RAP does not apply to an option held by a current tenant to purchase a fee interest in the leasehold property



Creates both a contract interest and a property interest


Types of Estates that Govern the Landlord-Tenant Relationship

1) Tenancy for Years
2) Periodic Tenancy
3) Tenancy At Will
4) Tenancy at Sufferance


Tenancy for Years

Measured by a fixed an ascertainable amount of time

Created by an agreement by the landlord and tenant
- must demonstrate intent

Terminates automatically upon the expiration of the term, or before the term is over when the tenant surrenders the lease OR the tenant or landlord commits a material breach of the lease.


Periodic Tenancy

Estate that is repetitive and ongoing for a set period of time

Created through the intent of the parties to create a periodic tenancy, either expressly or impliedly

Renews automatically until proper notice is given
- Proper notice means the terminating party gives notice before the start of what will be the last term
- Notice is effective the last day of the period


Tenancy at Will

May be terminated by either landlord or tenant at any time for any reason

Created by express agreement or implication

No notice to terminate
- if agreement gives only the landlord the right to terminate then the tenant also has the right to terminate
- if the agreement gives only the tenant the right to terminate at will, the landlord is not given the right to terminate at will

Death by either landlord or tenant terminates the tenancy


Tenancy at Sufferance

Created when a tenant holds over after the lease has ended
- Terms of the prior lease control

- tenant voluntarily leaves
- landlord evicts
- landlord re-rents to the tenant


Tenant Duties

1. Pay Rent

2. Avoid Waste


Duty to Pay Rent

Arises out of contractual relationship between the landlord and tenant

Duty suspended when:
1) premises are destroyed, so long as the tenant didn't cause the damage
2) landlord completely or partially evicts the tenant
3) landlord materially breaches the lease
- Implied Covenant of Quiet Enjoyment
- Implied Warranty of Habitability


Implied Warranty of Quiet Enjoyment

The tenant can withhold rent when the landlord takes actions that make the premises wholly or substantially unsuitable for their intended purposes, and the tenant is constructively evicted


Constructive Eviction

1) Premises were unusable for their intended purposes;
2) Tenant notifies landlord of the problem;
3) Landlord does not correct the problem; and
4) The tenant vacates the premises after a reasonable amount of time has passed


Implied Warranty of Habitability

The landlord has an obligation to maintain the property such that it is suitable for residential use. We are concerned with conditions that threaten tenant health and safety
- tenant cannot waive
- landlord's failure to comply with applicable housing codes constitutes a breach
- applies to residential properties, usually multi-family building


Breach of IWH

If premises are not habitable, tenant may:
- Refuse to pay rent;
- Remedy the defect and offset costs against the rent; or
- Defend against eviction

To withhold rent, tenant must:
1) notify the landlord of the problem; and
2) give the landlord a reasonable opportunity to correct the problem


Tenant Duty to Avoid Waste

- the duty to avoid waste is a background rule; does not have to be expressed

- Tenant must not commit affirmative or permissive waste

Tenant may make changes to the property that increases the property's value, but landlords usually require permission before a tenant can make the change


Duty to Repair

Residential Lease: Landlord is presumed to be responsible for repairs. Tenant must notify the landlord of any needed repairs
- landlord is not responsible to make repairs caused by the tenant's action

Commercial Lease: landlord can place the duty of repair on the tenant


Duty to Mitigate Damages

Majority Rule: landlord must make reasonable efforts to re-enter the property
- if the landlord does not make diligent effort to mitigate, tenant is relieved from obligation to continue paying rent
- if the landlord does seek to mitigate, landlord is entitled to the difference between the original rent and the rent received
- landlord does not have to accept and unacceptable replacement tenant

Minority: Landlord does not have to mitigate damages
- more common in commercial leases


Increasing Rent on Holdover

If landlord continues relationship with a holdover tenant, the rent under the old lease is the amount due, unless the landlord had informed the tenant of an increase in rent prior to the expiration of the old lease.


Duty to Deliver Possession

Majority: The landlord must deliver actual possession of the leasehold premises (physical possession)

Minority: Landlord only required to deliver legal possession


Conditions of Leased Premises

Landlord cannot deny the tenant quiet enjoyment

Landlord must control:
- Common areas (lobby, hallway, laundry room)
- Nuisance-like behavior of other tenants

Does not have to control:
- Off-premises actions of third parties that are beyond the landlord's control


Landlord-Tenant Tort Liability

Tenant: owes a duty of care to invitees, licensees, and foreseeable trespasser

Landlord: liable to invitees, licensees, and foreseeable trespassers
- in negligence for latent or hidden defects about which the tenant has not been warned
- for faulty repairs completed by the landlord negligently
- in negligence for injuries in common areas



A complete transfer of the tenant's remaining term



A transfer for less than the entire duration of the lease


Assignment/Sublease Rent

In an assignment, the landlord can collect rent from:
- Original tenant (privity of contract); or
- Subsequent tenant (privity of estate)

In a sublease, the landlord can collect rent from:
- The original tenant (privity of contract and estate)


Can the landlord deny permission to a transfer of the lease?

Majority Rule: A landlord may deny permission to a transfer only for a commercially reasonable reason

Minority Rule: A landlord can deny permission at her discretion (for any or no reason at all)

Note: A landlord does not need the tenant's permission before transferring her interest. The new landlord is bound by the terms of the existing lease.


Fair Housing and Discrimination Statutes

- Refusing to rent
- Requiring different rents
- Falsely denying that a unit is available
- Providing different services to facilities (unless disabled)
- Stating a discriminatory preference in an advertisement

On the basis of race, color, religion, national origin, sex, disability, and familial status

Primary focus on multi-family residential houseing


Adverse Possession

Allows a person in unlawful possession to acquire good title to a piece of property. Until the person acquires good title, the person is a trespasser


Elements of Adverse Possession

1) Continuous for statutory period
2) Open and Notorious
3) Hostile
4) Exclusive


AP: Continuous

Requirement is not literal. Seasonal or infrequent use may suffice if the use is consistent with the type of property being possessed
- True owner can interrupt period by ejecting the AP

If the adverse possessor cannot satisfy the continuity requirement on her own, she can tack on a predecessor's time on the property to satisfy the SOL so long as the AP and predecessor are in privity


AP and Disabled True Owner

The SOL will not run against a true owner who has a disability at the time the adverse possession begins
- Insanity
- Infancy
- Imprisonment


AP: Open and Notorious

Use must be such that it would put a reasonable true owner on notice of the adverse use


AP: Hostile

Adverse to owner's interest

Majority: does not inquire into state of mind


Good Faith - AP must think the land is unowned or that she is the rightful owner

Bad Faith - AP based on aggressive trespass


AP: Exclusive

An AP cannot share possession with the true owner

Two APs that both acquire title acquire title as tenants in common


Scope of Possession

Traces the Legal Boundaries of the Property

If the AP enders under color of title from an invalid instrument and occupies a portion of the property described in the instrument, the AP is in actual possession of the occupied land and constructive possession of the remaining land described int he deed


Stages of Land Sale Contracts

1) Contract Stage
- any liability must be based on a contract provision

2) Deed Stage
- any liability must be based on a deed warranty

Doctrine of Merger: covenants under the contract are merged into the deed and therefore can't be enforced unless the covenant is also in the deed



Land sale contracts are subject to the SOF

1) Writing
2) Signed by the party to be charged
3) Essential terms (parties, description of the property, price and payment info)


Exceptions to SOF

- Part Performance

- Detrimental Reliance


Part Performance

Partial performance by either the seller or the buyer is treated as evidence that the contract existed

- Payment of all or part of the purchase price;
- Possession by the purchaser; or
- Improvements by the purchaser


Detrimental Reliance

An estoppel doctrine that applies where a party has reasonably relied on the contract and would suffer hardship if the contract is not enforced


What is marketable title?

Title that is free from an unreasonable risk of litigation
- Standard of reasonable buyer

Every land sale contract includes an implied covenant of marketable title

Defects that render title unmarketable:
- Title acquired by adverse possession that hasn't been quieted
- Private encumbrances
- Violation of a zoning ordinance


Implied Warranty of Fitness or Suitability

In most jurisdictions, both the initial homeowner-purchaser and subsequent purchasers may recover damage
- suit must be brought within a reasonable time after discovery of the

Applies to defects in new construction


Duty to Disclose Defects

Most jurisdiction impose a duty on the seller to disclose to the buyer all known, physical, material defects

Materially defect must substantially affect the value of the home, health and safety of its occupants, or the desirability of the home
- general disclaimers will not satisfy duty to disclose


Seller's Remedies on Breach by Buyer

- Damages: difference between contract price and market price (profit)

- Rescission: can sell property to someone else

- Specific Performance


Buyer's Remedies on Breach by Seller

- Damages: difference between contract price and market value on date of breach (only out-of-pocket expenses if breach was in good faith)

- Rescission: Returns payments to he buyer and cancels the contract

- Specific Performance


Equitable Conversion and Risk of Loss

Majority Rule: The buyer holds equitable title during the period between he execution of the contract and the delivery of the deed
- buyer responsible for damage during that time
- seller has legal title and right to possess

Minority Rule: Places risk of loss on the seller until closing and deliver of deed


What is a mortgage?

A security device used to secure repayment of a debt

Note: promise to repay the debt
Mortgage: Instrument that provides security to the note


Purchase Money Mortgage

Person takes out a loan for the purpose of purchasing property


Future Advance Mortgage

A line of credit used for home equity, construction, business, and commercial loans


Alternatives to Mortgages

1. Deed of Trust
2. Installment Land Contract
3. Absolute Deed
4. Conditional Sale and Repurchase


Liability of Transferring Mortgagor

Mortgagor may transfer the property by deed, by will, or by intestate succession.

Mortgagor remains personally liable after the transfer unless:
- Release by mortgagee
- Modification of transferee's obligation by mortgagee


Due-on-Sale Clause

Gives lender the option to demand immediate full payment upon transfer (an acceleration clause that allows the lender to speed up the payment when the property is transferred)


Due-on-Encumbrance Clause

Acceleration when mortgagor obtains a second mortgage or otherwise encumbers the property


Liability of Subsequent Transferee

Assumption of Mortgage
- if the transferee assumes the mortgage, mortgagor is secondarily liable
- both original mortgagor and the transferree are liable upon default (no writing required in most jurisdictions)

"Subject to" Mortgage
- Transferee is not personally liable upon default
- default if deed is silent or ambiguous as to liability


Transfer by Mortgagee

The mortgage follows the note

A transfer of a mortgage but not the note, the transfer is either:
- Void because the note is the evidence of the debt; or
- the note and mortgage are considered a single entity , thus the note follows the mortgage


When can the mortgagee/lender take possession?

Lien Theory State: mortgagor cannot take possession until foreclosure

Title Theory State: Lender technically has the right, as the holder of title, to possess the property at any time

Intermediate Title Theory State (Minority): Mortgagor retains title until default, at which point the lender can take possession


Equity of Redemption

A common law right held by the mortgagor to reclaim title and prevent foreclosure upon the full payment of the debt
- must exercise right of equity of redemption before the foreclosure sale


Deed in Lieu of Foreclosure

Rather than face foreclosure, mortgagor can convey the property to the lender in exchange for releasing her from any outstanding debt


Foreclosure Methods

A forced sale of an asset to pay off a debt

- Judicial Sale: sale under the supervision of a court
- Power of Sale (Private Sale): sale is held by the mortgagee/lender

Proceeds used to pay off the debt and excess proceeds will be used to satisfy other creditors


Is the mortgagor responsible if the sale produces less than the mortgagor owes?

Yes, in that situation, the court can issue a deficiency judgment for the remaining balance


Foreclosure Priorities

General Rule: Interests acquired before the interest that is being foreclosed (Senior Interests) survive the foreclosure. Interests acquired after the interest that is being foreclosed (Junior Interests) are extinguished by the foreclosure. Surviving debts are satisfied chronologically.


Exceptions to Foreclosure Priorities

1. Purchase-money mortgage exceptions (priority over all mortgages)
2. Recording act exceptions
3. Subordination agreement between mortgagees
4. Mortgage modification
5. Future-advance mortgages


Effects of Foreclosure

Eliminates the mortgagor's interest in the property
EXCEPTION: Statutory Redemption


Deed Basics

For a deed to be valid, it must be delivered and accepted.

The controlling question is whether the grantor had present intent to transfer
- Physical transfer is not required
- Grantor can make a proper delivery to an agent
- Acceptance is generally presumed provided the gift is for value


Contents of a Deed

- identify the parties
- must be signed by the grantor
- include words that evidence a present intent to transfer
- include a sufficient description of the property


What does it mean to record?

Publicly register

Puts the world on notice that you own the property


Common-Law Recording Rule

A deed does not have to be recorded to be valid

First in time, first in right
- Every state modifies by statute


What interests are covered by recording acts?

- Deeds
- Mortgages
- Lease
- Options
- Judgments affecting title
- Other instruments creating an interest in land, such as easements or covenants


Kinds of Notice

1) Actual: when subsequent grantee has real, personal knowledge of a prior interest
2) Constructive: when prior interest is recorded
3) Inquiry Notice: when a reasonable investigation would have disclosed the existence of prior claims


Race Statutes

First to record wins, even if the subsequent purchaser had notice of prior, unrecorded conveyance


Notice Statutes

Subsequent purchaser has good title if she buts without notice of a prior, unrecorded conveyance



Subsequent purchaser has good title if:
1) purchase without notice of a prior unrecorded conveyance; and
2) they record first


Shelter Rule

A person who takes from a bona fide purchaser protected by the recording act has the same rights as grantor


Estoppel by Deed

Arises when a grantor conveys land the grantor does not own

If a grantor subsequently acquires title to the land, the grantor is estopped from trying to repossess on grounds that he didn't have title when he made the original conveyance


Kinds of Deeds

1) General Warranty
2) Specialty Warranty
3) Quit-claim


General Warranty Deed

Provides the greatest amount of title protection

Grantor warrants against all defects, even if the grantor didn't cause the defects


Present Covenants

- Covenant of Seisen
- Covenant of the Right to Convey
- Covenant Against Encumbrances


Covenant of Seisen

Warrants that the deed describes the land in question


Covenant of the Right of Convey

Warrants that the grantor has the right to convey the property


Covenant Against Encumbrances

Warrants that there are no undisclosed encumbrances on the property that could limit its value


Future Covenants

- Covenant of Quiet Enjoyment
- Covenant of Warranty
- Covenant of Further Assurances


Covenant of Quiet Enjoyment

Grantor promises to defend against future challenges to the grantee's title to the property


Covenant of Warranty

Grantor promises to defend against future assertions of encroachment


Covenant of Further Assurances

Grantor promises to fix future title problems


Special Warranty Deed

The grantor warrants against defects caused by the grantor


Quitclaim Deed

The grantor makes no covenants as to the health of the title
- Least amount of title protections


Breach of Deed Covenants

Present Covenants: Breach occurs at the time of conveyance
Future Covenants: Breach occurs after the conveyance, once there is interference with possession


Remedies: Covenant Against Encumbrances

Lesser of the difference between the title with our without the defect, or the cost of removing the encumbrance


Remedies: Covenants of Enjoyment and Warranty

Lesser of the purchase price or the cost of defending title that is in fact defective


Remedies: Covenants of Seisin, Right to Convey, an Further Assurances

Lesser of the purchase price or the cost of perfecting title



Tangible personal property that is attached to real property in a manner that is treated as part of the real property


Making Improvements

A fee simple owner of property is free to make improvements to the property, including fixtures, subject to governmental land use regulations

Holders of life estates or tenants are limited by the doctrine of waste


Removal of Fixtures

The buyer of real property is generally entitled to the chattel unless the seller reserves int he contract the right to keep the chattel.

Presumption that life tenants and tenants can remove fixtures unless doing so would permanently damage the property

Trespassers: formerly could never remove any fixtures, can now remove or recover value added to the property so long as they acted in good faith


What happens if a decedent dies without a will and without heirs?

The decedent's property escheats to the state


Specific Gift

A devise of property that can be distinguished from the rest of the testator's estate


General Gift

A devise of personal property that will be satisfied from the general assets of the estate


Demonstrative Gift

A general devise that is satisfied from a particular source


Residuary Gift

The balance of the estate after all the general and specific gifts have been made



Devise of property that fails because it is no longer in the testator's estate at the testator's death
- If a gift is adeemed, the beneficiary gets nothing


Ademption By Satisfaction

When property is no longer in the estate because the testator gives the property to the beneficiary while the testator is still alive



When the beneficiary dies before the testator dies and no alternative beneficiary is named in the will, the devise is said to have lapsed

- Becomes part of the residuary in the absence of an anti-lapse statute


Anti-Lapse Statutes

Designed to prevent gifts from lapsing. Apply if:
- The lapsed gift was made to a party specified in the statute; and
- The deceased beneficiary is survived by issue



Device for managing property whereby one person (the trustee) owns property for the benefit of another person


Restraints on Alienation

A restriction on transferring property

Absolute restraint on alienation is void

Partial restraint is valid if it is for a limited time
- if restraint is valid, any attempt to alienate the property will be null and void
- if the restraint is invalid, the restraint is rejected and the property can be transferred in violation of the restraint


What is an easement?

Right held by one person to make use of another person's land
- Servient Estate: land burdened by the easement
- Dominant Estate: land benefitted by the easement


Affirmative Easement

Gives the holder the right to do something on someone else's property


Negative Easement

Gives the holder a right to prevent someone from doing something on their land


Easement Appurtenant

Tied to the land


Easement in Gross

Benefits the holder personally


Express Easement

Subject to the SOF so it must be in writing

Created by grant or reservation (where grantor conveys land but reserves an easement right in the land for the grantor's use or benefit)


Types of Implied Easements

- Easement by Necessity
- Easement by Implication
- Easement by Prescription
- Easement by Estoppel


Easement by Necessity

Created only when property is virtually useless
1) Dominant and servient estates were owned by one person; and
2) Necessity arose when the estates were severed into separate estates, and at that severance, one of the properties became virtually useless without an easement

Ends when necessity ends


Easement by Implication

Created by an existing use on a property
1) A large estate owned by one owner;
2) Before division, the owner of the large tract uses the land as if there is an easement on it (quasi-easement);
3) Use must be continuous and apparent at the time of severance;
4) Use must be reasonably necessary to dominant estate's use and enjoyment


Implied Easement by Prescription

Similar to adverse possession

- Continuous use for statutory period
- Open and notorious
- Hostile

Exclusivity not a requirement


Easement by Estoppel

1) Starts with permissive use;
2) The second neighbor relies on the first neighbor's promise
3) The first neighbor withdraws the permission

If reliance was detrimental to the second neighbor, the first neighbor is estopped from withdrawing permission, in effect creating an easement


Scope of Easement

Express: determined by terms

Implied: determined by the nature of the prior use or necessity


Who has the duty to maintain the property subject to an easement?

The owner of the easement unless agreed otherwise by the parties


Terminating an Easement

1. Release
2. Merger
3. Abandonment
4. Prescription
5. Sale to a Bona Fide Purchaser
6. Estoppel
7. End of Necessity


Easement Release

The holder of the easement expressly releases it.

The release must be in writing (SOF)


Easement Merger

An easement is terminated if the owner of the easement acquires fee title to the underlying estate.

The easement merges into the title.


Easement Abandonment

The owner acts in an affirmative way that shows a clear intent to relinquish the right

Usually need non-use plus an act demonstrating intent to abandon


Loss by Prescription

Holder fails to protect easement against a trespasser for the statutory period


Loss of Easement by Estoppel

Servient owner changes position to his detriment in reliance on statements/conduct of the easement holder that the easement is abandoned



Right to enter another's land and remove natural resources
- Operate similarly to easements, but profits cannot be created by necessity



A revocable permission to use another's land


Real Covenant

A promise concerning the use of the land that runs to successors to the promise


Requirements for Requirements to Run

1. Writing
2. Intent
3. Touch and Concern
4. Notice
5. Privity


Touch and Concern

Requirement for covenant to run

Benefit or burden of the covenant must affect both the promisee and promisor as owners of the land


Horizontal Privity

To run the burden to a successor, the original privities to the promise must have been in privity of estate, where the estate and covenant are contained in the same instrument


Vertical Privity

To run the burden: successor must take original party's entire interest

To run a benefit: successor need only take an interest that is carved out of the original party's estate


Remedy for Breach of Real Covenant



Equitable Servitude

1) Writing
2) Intent to run with the land
3) Touch and concern the land
4) Notice
- No privity requirement

Remedy is injunctive relief


Implied Reciprocal Servitude

- Intent to create a covenant on all plots in the subdivision
- Reciprocal (befits and burdens each and every parcel)
- Must be negative (restriction on owner's use)
- Successor on notice
- Common plan or scheme


Changed Circumstances Doctrine

Where the restriction no longer makes sense due to drastic changes in the surrounding area since the restriction was put in place


Riparian Rights

Landowners who border a waterway own the right to reasonable use of the waterway


Prior Appropriation

First to make productive use of the water, regardless of where their land is located, has rights to the water


Lateral Support Rights

A landowner is liable in negligence when his actions caused a subsidence on a neighbor's land and the neighbor's surface buildings contributed to the subsidence

Strict liability when neighbor's surface buildings do not contribute


Subjacent Support

Owner of the mineral rights is strictly liable for failure to support the land and any buildings on it that existed when the rights were created

Liable for negligence for any buildings after the rights were created



State and local government may regulate the use of land through zoning laws
- for protection and safety of the community


Exemptions and Variances

An owner may request a variance from the zoning ordinance of the owner can demonstrate that the ordinance imposes undue hardship and that the variance is not contrary to public welfare


Non-Conforming Use

A use that lawfully existed before the zoning ordinance existed but violates it once it was enacted.

Most jurisdictions permit such a use to continue, but prohibit expansion of non-conforming uses


What happens when a developer is in the middle of a building project when the zoning ordinance is changed?

The doctrine of vested rights controls

The use is acceptable if the project was started in good faith


Eminent Domain

Federal and state governments can take property through the eminent domain party.

- Receives title to the property
- Pays the landowner just compensation


Private Nuisance

A substantial and unreasonable interference with another individual's use or enjoyment of his property

Substantial: One that would be offensive, annoying, or inconvenient to an average person in the community

Unreasonable: The injury outweighs the usefulness of the defendant's actions


Public Nuisance

Unreasonable interference with the health, safety, or property rights of the community
- plaintiff must show she suffered a different kind of harm than the rest of the community