1. In general: Governments have the power to take title to property against the owner‟s will. The
5th A says “nor shall private property be taken for public use without just compensation.” This clause
imposes three necessary conditions before someone can get relief for a taking:
a. private property: doesn‟t cover liberties, privacy rights, others‟ property, common property.
b. actually have been taken: includes destruction and things that take away the value of the
property (this is the controversial issue).
c. establish that you didn‟t get just compensation: You have to actually try to get just
compensation before the court will recognize the action, you can‟t just go complain.
d. For public use: not necessary condition, but construed as a limitation. It can be understood
three ways. Hawaii Housing Authority, Poletown, Raiders, Hadacheck – See theories
on big outline for this.
2. What is a taking?
a. taking possession: permanent physical invasion by the government or a third party with
government authorization is a taking and must be paid for.
b. Regulatory takings: several tests have been developed to determine whether government
regulation is under police power or is a taking. With police power, the gov‟t doesn‟t
have to compensate, with takings they do.
1. Harm test: Police power is validly exercised to prevent harm or prohibit a
nuisance, therefore no compensation needs to be given. But where the purpose
is for public benefit you have to give compensation. Hadacheck, Penn Coal v.
Mahon, Keystone Coal
2. Test of severe economic loss: The imposition of severe economic loss may
show a taking. This test means that the owner must be left with some reasonable
economic value in the property otherwise it is a taking. You can do a reciprocity
test and determine if the owner is left with some advantages and if they are then
it may not have to be a taking.
3. Destruction of all economic value: If the regulation denies all economically
beneficial uses it is a categorical taking, unless the state shows that it is justified
in preventing a common law nuisances. Lucas, Hadachek
4. Exaction/Easement: A city may impose on a property owner applying for a
building permit a condition that benefits the city. This condition must be
logically related to the specific public need that the owner‟s building creates.
Nolan, Dolan, Penn Central
c. Remedies for Reg. Taking: If land use regulation is declared a taking, a land owner may have
a suit for injunction or damages. First English Evangelical Church of LA.
d. State Balancing Test: A state court may balance the private loss against the public gain.
They will look at the utility of the action (economic efficiency) and the fairness. Penn
3. What is just compensation?
a. Market value: Usually this means fair market value. It can include value of possible future
expectations as well as existing uses. It does not include the loss of business located on
b. Indemnification: You could just indemnify them and make them whole. Better than market
c. Partial Taking: If only part of a tract is taken, the owner is entitled to severance damages. In
some states it is a before and after rule. They take the difference of the value of the land
before and the value of the remainder after and give them that. In some states they look
at value + damages that may have been suffered by only having the remainder.
Land Use Controls:
1. Definition: An unprivileged interference with a person‟s use and enjoyment of their
2. Private Nuisance: Substantial interference that is either intentional and
unreasonable or unintentional but negligent, reckless or abnormally dangerous. The plaintiff must
have a property interest that is affected by the nuisance. Estancias Dallas
a. Intentional Nuisance: The unreasonableness of the interference determines whether it
is intentional. Conduct is unreasonable if the gravity of the harm outweighs the utility of the actors
conduct. Restatement 2nd of Torts, page 750
b. Unintentional Nuisance: Recklessness or Negligence is the standard. Morgan v. High
c. How decide if there is a nuisance: Courts look at the character of the harm, character
of the neighborhood, social value of the conflicting uses, and whether the Plaintiff has come to the
nuisance (Spur) And they look to see if it was a nuisance at common law.
d. In Comparison to Trespass: With trespass property owners have a right against the
world to exclude (protect ones right to exclusive possession of the land – if you‟re a land owner and
someone does something to displace you, you have automatic injunctive relief, it is a strict liability
3. Public Nuisance: Affects the general public, the test for determining public nuisance
is the same as for private nuisance. It is generally public officials that have the right to stop it. Boomer
v. Atlantic Cement Company, Spur Industries v. Del Webb
4. Public v. Private: The distinction is important because only someone with an interest
in land can bring suit (private), also, any member of the affected public can sue on a public nuisance,
but only if they can show “special injury.”
5. Four Rules to Resolve Nuisance Claims: (1) abate the activity in question by
granting the plaintiff injunctive relief (Morgan and Estancias), (2) let the activity continue if the
defendant pays damages (Boomer), (3) let the activity continue by denying all relief (the converse of
the first one), (4) abate the activity if the plaintiff pays damages (converse of the second, Spur – this is
the new one).
1. Definition: An interest in land which entitles a person to use of land possessed by
a. Types of Easements:
1. Affirmative – You give someone the right to go onto your land and do something on it.
2. Negative – The owner of the negative easement can keep the servient land owner from doing
something on the land.
b. Dominant v. Servient: The land benefited by the easement is the dominant tenement
and land burdened by the easement is the servient tenement. Easements that are attached to the
dominant tenement passes to any subsequent owners of that tenement.
c. Easement in Appurtenant: Such an easement benefits the dominant owner‟s of
another tract of land.
d. Easement in Gross: This easement benefits a person personally, not as an owner of
the land. It merely gives one the right to use of the servient land. Pass to beach.
e. Easement by estoppel: If there is detrimental reliance by a permitee, they will allow
the easement to be considered created. Holbrook v. Taylor.
f. Easement v. License: A license is permission to go on to another‟s land (like to a
plumber), it can be written or oral and is generally revocable any time. Shepard v Purvine, Henry v.
2. Creation of Easements
a. Creation by express grant: An easement, being an interest in land, must be in writing
signed by the grantor to satisfy the statute of frauds. If it is oral permission it is a license. Can be
created for any length of time. A grant for limited use or limited purpose or of a space without clearly
marked boundaries, indicates an easement.
b. Creation by reservation: A grantor may convey land and reserve for himself an
easement over the land. Early common law prohibited reservations so the courts invented a theory
that the grantee re-granted the easement to the grantor.
1. Exception of an Easement – a reservation is the re-grant of a new easement, an exception is a
deed provision that excludes from the grant a pre-existing easement.
2. Reservation for a third party – there is a prohibition against reservation of an easement in
favor of a third party. No third party beneficiaries. Willard v. First Church (where they could benefit
c. Creation by implication: Two kinds, created by law, they are exceptions to the statute
of frauds because they don‟t require writings.
1. Easements from existing use (quasi easement)– if before the tract of land was divided a use
existed on the servient part that is reasonably necessary for the enjoyment of the dominant part and a
court finds that the parties intended the use to continue after separation -- an easement may implied.
Van Sandt v. Royster
2. Easement by necessity – This is generally a way of access and requires strict necessity and
not mere convenience. An easement by necessity is implied only when the tract is divided and no
prior existing use is required. It terminates when the necessity ends. Othen v. Rosier
d. Creation by prescription: Easement may be created by a period of adverse use. This
is where we get the three elements of prescription. Like adverse possession. These can be created by
lost grant (page 811) or by adverse possession. The first requires acquiescence, and the second
requires hostility. They both can be defeated with a showing of license.
1. Three Things for adverse possession easements: (a) Open and Notorious, (b) Adverse and
under claim of right, and (c) continuous and uninterrupted (tacking is ok).
2. Public easements: most jurisdictions allow the public to acquire a public easement by
prescription if the use of a private land fulfills the prescription requirements (roadway, or walkway to
beach, etc). Matthews v. Bay Head
3. Scope of Easements
a. General Rule: The intent of the parties determines the scope of the easement.
b. Subdivision of the Dominant tenement: Each subdivided lot has a right to use
easements to the dominant estate, but the servient estate cannot be burdened with more than was
contemplated by the original easement. Brown v. Voss
c. Use for benefit of non-dominant land: A dominant owner cannot increase the scope
of the easement by using it to benefit a non-dominant tenement.
d. Changes: If you want to change it you have to have mutual consent. Preasault
e. Overburdening: You can‟t overburden the easement. There are three types of
Annexing – is per se not ok. When someone tries to tack C on to B and use the
easement from B to C – Brown v. Voss.
Intensification – subject to reasonableness test (page 840). 10 cars a day using
Multiplication of uses – per se bad. You can‟t change the type of use,
unilaterally of the easement. A cable company comes in and digs a ditch on an
easement for use of TV. Miller v. Lutheran
4. Transfer of Easements:
a. Easement in appurtenant: is transferred with the dominant or the servient tenement.
b. Easement in gross: The older rule used to be that you couldn‟t assign them, but now
you can. Miller v. Lutheran
5. Termination of Easements:
a. By unity of title: An easement is extinguished when one person acquires title to both
the dominant and servient estates.
b. By dominant owner: An easement may be released by writing. An oral release by
the dominant owner is not valid, unless there are acts showing intent to abandon (non-use or mis-use
c. By servient owner: Destruction of the servient tenement extinguishes the easement.
d. Abandonment/change of use: When the use of the easement changes, and the original
use is abandoned, the easement ceases to exist – Presault v. U.S.
6. Categories of Negative Duties:
a. Affirmative right in a dominant owner: Classic easement case, A has a right to cross
B‟s land to get to a highway.
b. Negative duty to a dominant owner: Servient owner has negative duty to abstain from
doing certain things. A promises not to build something that will block the dominant owners view.
c. Affirmative duty of a servient owner to a dominant owner: You trim a tree or
something, Home Owner Association payments.
d. Historical/England crap: They had 4 categories of negative duties: don‟t block
windows, don‟t interfere with air in a defined channel, don‟t remove lateral support, don‟t interfere
with flow of water.
C. Equitable Servitudes
1.Equitable Servitudes: An ES is a covenant that equity will enforce against
assignees of the burdened land who have notice of the covenant. An injunction is the usual remedy.
An ES is an interest in land.
2. Equitable Servitude v. Real Covenant -- Differences:
a. Remedy: ES injunction asking for enforcement of the servitude, RC you get
b. Creation: ES can be created by implication, RC has to be in writing.
c. Privity of Estate: ES: generally doesn‟t require horizontal or vertical privity, some
states do require vertical privity when a person other than the original promisee is enforcing the
3. Equitable Servitude v. Real Covenant – Similarities:
ES and RC must both touch and concern the land and neither is enforceable against the
bona fide purchaser without notice. The Restatement of Servitudes abolished the difference between
4. Creation: It can be created by implication or by righting. If it is created by implication,
it is implied from a general plan, like with developers and subsequent grantors need to have notice that
there is a restriction on the lot.
5. Equitable Servitude will be enforced by a successor if four requirements are met. 1.
intent, 2. no privity of estate unless required, 3. touch and concern, 4. notice.
D. Real Covenants
1. Definition: A covenant is promise to do or not to do something. A real covenant is a
promise relating to the use of land. A real covenant is a covenant that runs with the land so that each
successive land owner may enforce, or is burdened by the covenant.
2. Creation: A writing is required for a real covenant. It will not be implied, nor will it
arise by prescription.
3. Enforcement: The main question is whether the benefit or the burden will run to the
assignees. There are requirements for the burden to run. (the same are required for benefit, but w/out
Notice). Neponsit, Western, Rick
b. Privity of Estate: Need horizontal and vertical for burden. You only need vertical
c. Touch and Concern -- Neponsit, Caullett (doesn’t T and C)
d. Notice – inquiry notice can be enough (Sanborn)
4. Theories of Touch and Concern: Generic: any promise of negative duty on a
servient owner is touch and concern.
b. Joint Wealth Maximization test:
c. Literal Approach/ Face of the Land/Merrill: He thinks that touch and concern stuff,
change the face of the land physically, so when people do an inspection of the land they will be on
inquiry notice. He thinks that promises that affect face of the land allow for quick evaluation of the
value of the promise and the effects on the land. He thinks that Neponsit is a good example of this
because the home owner‟s situation because the upkeep they provide is visually apparent. Change in
the way the land looks is the test. If is isn‟t noticeable, it doesn‟t T and C. (Sanborn – inquiry notice)
5. Termination of covenants (from class):
Can be extinguished by non use, estoppel, abandonment, or if everyone starts
ignoring it Pocono (no abandonment).
Or you can get a formal relase – Rick (she relied and she should be able to)
Or if there are changed conditions, no longer benefits, purpose of restriction is
thwarted Western (conditions not sufficiently changed), Rick (conditions
didn’t change enough)
Efficient breach, but this lowers consumer trust in covenants
Unconcionability – at the time of the creation of the covenant.
II. ESTATE SYSTEM
Types of Estates:
1. Fee Simple: This estate has the potential of enduring forever.
2. Fee Tail: A fee tail estate also has the potential to endure forever but ends if and
when the first fee tail tenant has no lineal descendants to succeed him in possession.
3. Life Estate: Estate ends with the death of the person.
4. Lease Hold Estate: Estate lasts for fixed time or by other agreement between a
landlord and a tenant.
B. The Fee Simple
1. Fee Simple Absolute: Absolute ownership.
a. Creation: At common law, they used to A “and his or her heirs,” if they didn‟t have those
words, the grantee only took a life estate. Under modern law, a will is presumed to pass
the largest estate that the grantor or testator owns (to A = fee simple).
b. Transferability: freely alienable
c. Inheritance Definitions:
1. Heirs: persons who survive decedent and are designated as intestate successors under
the state‟s statute of descent.
2. Issue: issue = descendants, not just kids, further descendants too
3. Ancestors: By statute, parents usually take as heirs if the decedent leaves no issue.
4. Collaterals: All persons related by blood who aren‟t descendants or ancestors,
5. Escheat: If you die with out any heirs, the land escheats to the state where the
C. The Fee Tail
1. Definition: A fee tail is an estate in land created by a conveyance „to A and the heirs of his body.” It
descends to A‟s lineal descendants generation after generation. It was a way to keep rich people‟s kids
from selling their land and to keep it in the family.
2. Nature of the Estate: it lasted as long as the grantee or any of his descendants survives and it is
inheritable only by the grantee‟s descendants.
3. Creation: At Common law the language created it w/ “to A and the heirs of his body.”
4. Modern Law: The Fee Tail has been abolished in England and in all but four US states. Most
courts construe “to A and heirs of his body” to give a fee simple. Some states interpret it to mean fee
simple absolute, others interpret it to be a fee simple subject to conditions if A has no children.
5. Characteristics: The tenant in fee tail cannot defeat the rights of his own descendants, on the death
of the tenant in fee tail the land automatically goes to his descendants (it is like a life estate in that guy
and then to his descendants). The fee tail could only be inherited by issue of the original grantee.
6. Future Interest following Fee Tail: To keep the land in the family upon the expiration of a fee tail
(ie they die without issue) the land would revert to the grantor or he could direct it to another, thus
making possible future interests of reversion or remainder.
7. Disentailing: Today a fee tail can be converted into a fee simple absolute by cutting off all rights of
the original tenants kids by a deed.
D. Life Estate
1. Types of Life Estates
a. For life of grantee:
b. Life estate measured by someone other than the life estates: O coveys Blackacre to B for the
life of A (the measuring life). If B dies before A, the life estate goes to B‟s heirs until A
dies. If A dies first, then it goes back to O or someone named.
c. Life estate in class: Can be created in several persons. O coveys Blackacre to the children
of A for their lives. The general rule is that the remainder does not become possessory
until all of the life tenants die.
d. Defeasible life estates: This means there is some kind limitation (either subject to condition
subsequent or subject to an executory limitation).
Life Estate Subject to Condition Subsequent: O coveys to A for life, but if A doesn‟t use the
land for agricultural purposes, O retains the right to re-enter.
Life Estate Subject to an Executory Limitation: O coveys to A for life, but if B marries during
A‟s life, to B.
(LESCS – O has to elect to reenter, LESEL – the land is divested automatically in a third
person based on a specific event happening).
e. Construction: Interpretation of ambiguous language as to what estate is created is done on
case by case analysis and based on grantor‟s probable intent (White v. Brown).
2. Alienability of Life Estate: A life tenant can transfer whatever estate she has (but just till she dies).
3. Doctrine of Waste: The Life Tenant is entitled to the use and enjoyment of the land but cannot
permanently impair the value (waste). There are three kinds:
a. Affirmative (voluntary) waste: the life tenant destroys property or exploits resources.
b. Permissive (involuntary) waste: the life tenant allows the land to fall into disrepair.
c. Ameliorating waste: this is when the principle use of the land has changed so much as to
increase the value (actionable if the grantor was trying to pass specific structure or if the
original structures would have worked for the new cause and they ripped them down).
4.Sale of Property by a Court: If the life tenant and the owners of the remainder are adults, competent,
and in agreement, then fee simple can be sold. If one of them doesn‟t agree, the court can order a sale
if it is everyone‟s best interests. Some state‟s statutes authorize the sale of fee simple under certain
conditions. Baker v. Weedon
E. Restraints on Alienation:
1. Disallowed restraints:
a. Total restraint: White v. Brown.
b. A sale requiring consent of another
c. A sale only to a member of a club with arbitrary power to deny membership.
d. Racial restraint
2. Allowed restraints on Use:
a. Disabling – withholds from the grantee the power to sell. Example: fee simple determinable.
This is an automatic action. (like for school use)
b. Forfeiture – if it is sold, it goes to the grantor and heirs. Example: fee simple subject to
conditional. Right of Entry cause of action, requires the filing of a lawsuit.
c. Promissory – A sells to B with the condition to the sale that A is required to promise to B
that they aren‟t going to sell. That is an example of a covenant. Breach of Contract
type of action.
3. Restraints on Use: makes the property less alienable by eliminating prospective purchasers who
desire to make use of the property in a manner forbidden by the restraint. These are generally upheld.
Moutainbrow v. Toscano (oddfellows)
F. Defeasible Estates
1. A defeasible fee simple is one that may last forever or may come to an end upon the happening of
an event in the future.
a. Fee Simple Determinable: This estate ends automatically when a specific event happens (to
the school as long as used for school purposes (to the school for school purposes
1. Creation: Determinable fee is created by language that connotes that the fee
is to last only until a state event occurs. Words of limitation: so long as, or until,
etc. Expressions of motive or purpose are inadequate. Mahrenholz
2. Transferability: A fee simple determinable may be transferred or inherited,
but it remains subject to the limitation.
3. Future interests: Every fee simple determinable is accompanied by a future
interest, generally future interest is retained by the transferor and is a possibility
of reverter. This future interest can either be expressly retained or arise by
operation of law. Ink v. City of Canton
b. Fee Simple Subject to Condition Subsequent: a fee simple that does not automatically
terminate, but may be cut short or divested at the transferor’s election when a stated
condition happens. Unless and until entry is made, the fee simple continues. This is the
essential difference between the two.
1. Creation: Fee Simple SCS is created by giving the grantee a fee simple and
then providing that it may be cut short if a condition happens. The language is
like “to the school but if/upon the condition of/however it ceases to use the land
for school purposes, grantor has the right of reentry.” Mountain Brow
2. Transferability: The Fee Simple SCS can be transferred or inherited until the
grantor can or does exercise the right of entry (but is still subject to the right of
3. Future interests: The right of entry.
c. Fee Simple Subject to Executory Limitation: This is when there is a fee simple, there is a
happening or event, and the estate is automatically divested into a third person (not the
grantor or grantee). Ex: To the school, but if it ceases to use land for school purposes,
then to the hospital.
H. Future Interests
1. Definition: A future interest is a present non possessory interest capable of becoming possessory
in the future. This future interest gives legal rights to the owner of the interest.
2. Recognizable future interests:
a. Interests retained by transferor (grantor):
1. Reversion: The big thing here is that you are giving less than you could – you retain
something – a reversion, that may or may not become possessory. The interest may be
expressly retained or may arise by operation of law. At common law, reversion was
transferable during life and descendible and devisable at death – this is still the case.
2. Possibility of Reverter : this is a future interest remaining in the transferor when a fee
simple is created. (the transferor is carving out of his estate a determinable estate of the
same quantum (ie same level of ownership). At common law you couldn‟t transfer this,
but now you basically always can. The possibility of reverter is considered a property
interest and alienability is an inherent characteristic of property interest. Mahrenholz,
Ink v. City of Canton is an example
3. Right of entry (also known as power of termination): When an owner transfers an
estate subject to condition subsequent and retains the power to cut short or terminate the
estate, the transferor has a right of entry.
b. Interests created in the transferee:
1. Vested remainder: A remainder is vested if it is created in a specific (ascertained)
person and is ready to become possessory whenever and however all proceeding
estates expire. It is not subject to a condition precedent. Ex: To A for life, then to B in
Indefeasibly vested: the holder of this interest is certain to acquire possession in the
future and will be entitled to retain permanently the estate.
vested subject is open or subject to partial divestment: A remainder created in a class of
persons (such as in A‟s children) is vested if one member of the class is ascertained and
there is no condition precedent. The remainder is vested subject to open or vested
subject to partial divestment if later-born children are entitled to share in the gift.
Not subject to rule in perpetuties
2. Contingent remainder: It is contingent if it is given to an unspecific (unascertained)
person or is subject to a condition precedent.
Unascertained person can be someone who isn‟t born yet or who can‟t be determined
until the event happens.
A contingent remainder in fee simple always creates a reversion in grantor.
Subject to condition precedent is an express condition set forth in the instrument which
must happen before the remainder becomes possessory.
Subject to rule in perpetuities
3. Executory interest: a future interest in a transferee that must, in order to become
possessory, (1) divest or cut short some interest in another transferee (shifting
executory interest), or (2) divest the transferor in the future (springing executory
Springing: O conveys to A and her heirs, if A quits smoking (A has a springing
executory interest which will divest a fee simple from O if she quits smoking. O has a
fee simple subject to an executory interest (springing)).
Shifting: O coveys to A and his heirs, but if B returns from Rome, to B and his heirs.
(A has a fee simple subject to the executory interest (shifting) and B has an executory
Subject to the rule against perpetuities
After all this history stuff modern executory interests, you can now have a fee
simple subject to an executory limitation. This is a fee simple that, upon the happening
of a stated event, is automatically divested by an executory interest in a transferee.
3. Trusts: A trust is a fiduciary relationship in which one person, the trustee, holds legal title to
property subject to equitable rights in beneficiaries. Merrill loves these.
a. Creation: You have to manifest an intent to create a express trust. A written instrument (will
or deed) is necessary for the express trust of land and an express trust of personal
property may be created by writing, spoken words, or conduct. Broadway Bank
b. Powers of the Trustee: A trustee usually has very broad power and can manage the property
in the same manner as any intelligent person would manage their own property.
c. Duties of a Trustee: Trustee is personally liable for breaches of the fiduciary duty.
I. The Rule Against Perpetuties
1. Rule: No interest is good unless it must vest if at all, not later than 21 years after some life in being
at the creation of the interest.
a. The rule against perpetuities is a rule that strikes down contingent interests, that might vest
too remotely. The essential thing to grasp about the rule is that it is a rule of logical
proof. You must prove that a contingent interest will necessarily vest or fail within 21
years after some life in being at the creation of the interest.
2. Applies to: contingent remainders and executory interests
3. Does not apply to: vested interests (vested remainder, reversion, possibility of reverter, and
right of entry).
4. What Might Happen Test: If there is any possibility that a contingent interest will vest too remotely,
the interest is void. Courts do not wait to see what actually happens, they look at the interests at the
time of creation
5. Lives in Being: Any person who can affect the vesting of the interest and who is alive at the
time of creation of the interest can be a validating life provided the claimant can prove the interest will
vest or fail within 21 years of that person‟s death. (validating life can also include the preceding life
tenant, the taker or takers of the contingent interest, they don‟t have to be persons mentioned in the
instrument, but they must be persons who can affect vesting of the interest.”
6. Classes: If it is a gift to a class, it might be too remote and so the whole class will be void. Class
gifts do not vest in any member of the class until the interests of all in the class have vested. Jee v.
Audley also applicable here.
7. Remote Possibilities: An interest is void under the rule if there is any possibility that the interest
might vest beyond the permitted period. The fertile octogenarian rule, unborn widow rule, and
afterborn children. Jee v. Audley
8. Application to Defeasible Fees: Although a fee simple determinable followed by an executory
interest is subject to the rule, there is an exception – a gift from one charity to another. Brown v.
Woburn stuff kind of falls here.
9. Option: It applies to options. Central Delaware
10. Wait and See Doctrine: Interests are judged by actual events not by possible events. Some states
wait out the relevant lives plus 21 years. (this is a different way to do it)
J. Tenancy in Common
1. Nature of the Tenancy: Each tenant has a separate but undivided interest in the property including
the right to possession of the whole. When one co-tenant dies the remaining tenants in common have
no survivorship rights. Equal shares are not necessary for tenants in common, co-tenants can own
different types of estates in the same property.
2. Alienability: Each co-tenant can transfer his or her interests in the same manner as if they owned it
3. Presumption of tenancy in common: The presumption NOW is that whenever there is a conveyance
made to two or more people who are not married, it is a tenancy in common.
4. Partition: allowed. Either in kind or by sale. Delfino v. Vealencis.
K. Joint Tenancy
1. Nature of the Tenancy: Joint tenants own an undivided share of the property and there is a right of
survivorship to the surviving co-tenant to the whole estate.
2. The Four Unities Requirement: To be a joint-tenant, the tenants must take their interest (some
statutes in some jurisdictions get rid of these and go with express intent to create a joint tenancy
a.Time: at the same time
b. Title: by the same title (same instrument, joint adverse possession, can‟t arise from intestate
succession or other act of law)
c. Interest: they must have identical interests
d. Possession: they have an equal right to possession of the whole property (a joint tenant can
voluntarily give exclusive possession to the other joint tenant) (this 4th one is the only
one that is essential to a tenancy in common as well.
3. Straw Men: At common law you used to have to use a straw person to create a joint tenancy, but
now state allow direct conveyance to both spouses as joint tenants.
4. Creation: Common Law presumed that any conveyance to two or more people other than spouses
created a joint tenancy unless there was contrary language. Conveying to married people was
considered tenancy by the entirtety NOW it is presumed to be tenancy in common when to two or
more unmarried people (you can give tenancy in common to married people, just not presumed). TO
GIVE Joint Tenancy, you have to use express language.
5. Severance of Joint Tenancy: If at some point one of the four unities is severed, the joint tenancy
becomes the tenancy in common. Examples:
a. Conveyance by Joint Tenant: Joint tenant has the right to convey their interest, but by doing
so they sever the joint tenancy with respect to that share. Riddle v. Harmon
b. Mortgage by Joint Tenant: In title theory states, a mortgage usually conveys legal title,
therefore if one party gets a mortgage the tenancy is severed. In lean theory states, a
security interest, rather than a legal title is conveyed and the mortgage does not sever
joint tenancy. Harms v. Sprague
c. Lease by Joint Tenant: Some states follow common law rule that says that if a joint tenant
leases, that it severs the joint tenancy, other states don‟t follow that rule. No severance:
Swartzbaugh v. Sampson
d. Agreement among tenants: Joint tenants can agree that one tenant has the right to exclusive
possession without severance, however, severance occurs if they agree to hold as
tenants in common. All about intent.
6. Avoidance of Probate: You avoid probate because there is no need to change title at the joint tenants
death (joint tenancy is the practical equivalent of a will).
7. Creditors: During a joint tenants life, creditors can reach that interest and if they take then the
tenancy is severed. But, if they wait until the joint tenant is dead, there is nothing the creditor can
8. Unequal Shares: Some states are starting to allow people to have unequal shares in joint tenancy.
9. Bank Accounts: page 338 for info on joint tenant bank accounts. Convenience account v. Joint
10 Partition: allowed, either in kind or by sale.
L. Tenancy by the Entirety:
1. Nature of the Tenancy: It can ONLY be created between married people. One person can‟t sever
it. The right of survivorship can‟t be destroyed.
2. Creation: At common law, conveyance to husband and wife created tenancy by the entirety. This is
still the presumption in many states, some do presume joint tenancy though.
3. Rights during marriage: At the Common Law it was that the husband had all the rights. Modern
Law: States give women an equal right of possession. Creditors of either spouse can‟t reach the
property. Sawada v. Endo, United States v. 1500 Lincoln Avenue
4. Divorce: Divorce terminates the tenancy by entirety. Some states think that it becomes a tenancy in
common, others think it becomes a joint tenancy.
5. Personal Property: It used to be that you couldn‟t have a tenancy by the entirety in personal
property, but now you can.
6. Modern Status: Tenancy by the entirety is not recognized in about half the states.
7. Partition: not allowed.
M. Relations among Concurrent Owners
1. Partition: Any common or joint tenant may bring a suit in partition, the court either physically
divides (partition in kind) or sells the common property, adjusts all claims of the parties and separates
them (partition by sale). Partition is not available for tenants by the entirety. Delfino.
2. Sharing the benefits and burdens of co-ownership
a. Possession by one tenant: Each co-tenant is equally entitle to possession of the entire
property. The parties may agree among themselves that one co-tenant has the right to
1. Ouster: Ouster occurs when one co-tenant deprives another co-tenant of the
right of possession. An ousted co-tenant can bring suit to collect his share of
reasonable rental value, or a suit to partition.
2. Adverse Possession: A co-tenant becomes an AP only upon clear notice or
repudiation of the common title being given to other co-tenants, exclusive
possession alone is insufficient. If you are an AP, it is an ouster. Spiller
b. Leases and Severance: Leases can sever joint tenancy depending on jurisdiction. Common
Law was that it did. Swartzbaugh v. Sampson
N. Marital Interests
1. Conveyance and Creditors
Sawada v. Endo, U.S. v. 1500 Lincoln Avenue
III. LAND TRANSACTIONS
1. Covenants of title
a. Types of Deeds:
1. General Warranty Deed: This contains all of the 6 usual covenants (see below) and title
against defects arising before as well as during the time the grantor has title.
2. Special Warranty Deed: Contains all 6 usual covenants, but covers only defects arising
during the time the grantor had title.
3. Quitclaim deed: A deed that has no warranties in it at all. It just gives title. You can‟t sue on
b. Six Covenants for Title and Warranty Deeds:
1. Covenant of Seisin – the grantor warrants that he owns the estate that he purports to convey.
Present. Brown v Lober (could have been), Rockafellor v. Gray (Iowa rule)
2. Covenant of Right to convey – the grantor warrants that he has the right to convey the
property. In most instances this covenant serves the same purpose as the first one, but it is possible for
a person to have seisen and not the right to covey. Present
3. Covenant against encumbrances – The grantor warrants that there are no encumbrances on
the property. Encumbrances include, among other items, mortgages, liens, easements, and covenants.
Present. Frimbger v. Anzellotti
4. Covenant of general warranty – the grantor warrants that he will defend against lawful
claims and will compensate the grantee for any loss that the grantee may sustain by assertion of
superior title. Future
5. Covenant of quiet enjoyment – the grantor warrants that the grantee will not be disturbed in
possession and enjoyment of the property by assertion of superior title. This covenant is, for all
practical purposes, identical with the covenant of general warranty and is often omitted from general
warranty deeds. Future. Brown v. Lober.
6. Covenant of further assurances – grantor promises that he will execute any other documents
required to perfect the title conveyed. Future
c. Present Covenants: The first three are present. A present covenant is broken, if ever,
at the time the deed is delivered. Either the grantor owns the property at that time, or he doesn‟t (etc).
The present covenants do not run with the land and cannot be enforced by a remote grantee. The
statute of limitations on these begins to run on the breach of such covenant at the date of delivery of
d. Future Covenants: The second three are future. A future covenant promises that the
grantor will do some future act, such as defending against claims of third parties or compensating the
grantee for loss by virtue of failure of title. Future covenants do run with the land. If there is privity
of estate between the original grantor/coventor and the remote grantee. This means that the coventor
conveyed either title or possession to his grantee who conveyed it to the remote grantee. The Statute
of limitations runs from the time of eviction or whenever the covenant is broken in the future.
2. Estoppel by Deed: Where a grantor purports to convey land that he does not then own and
subsequently acquires title, title passes to the grantee under the earlier deed.
3. Delivery – To be effective, a deed must be delivered with the intent that it be presently
operative that is what makes it legal delivery.
D. Recording System
1. Common Law Rule – a grantor who was prior in time to record prevailed over one
subsequent in time.
2. Types of recording acts – three types:
a. Race Statutes: As between two claimants, whoever records first wins. Actual notice
of prior claim is irrelevant.
b. Notice Statutes: Subsequent purchaser is protected against a prior unrecorded
instrument if he has no actual or constructive notice of a prior claim.
c. Race Notice Statutes: Subsequent purchaser without notice is protected against a
prior unrecorded instrument only if he records before the prior instrument is recorded.
3. Whose protected by recording acts –
a. Purchasers: All purchasers who are without notice and who give valuable
consideration (bona fide purchasers) are within protection of the recording system. Lewis v. Superior
b. Without Notice: The purchaser must be without actual record or inquiry notice of a
prior claim at the time she paid consideration. Luthi v. Evans, Orr v. Byers, Messersmith v. Smith,
Daniels v. Anderson, Harper v. Paradise (inquiry notice), Waldorff Insurance and Bonding, Inc. v.
Eglin National Bank
c. Valuable Consideration: This must be more than nominal but does not have to equal
market value. Love and affection are not enough.
E. Chain of Title Problems
1. Estoppel by deed: A deed given by someone who doesn‟t have title yet, is not considered to
be in the chain of title (some jurisdictions say it is and you have to do a huge search to find how the
person you are getting it from got it).
2. Deeds recorded late: If a grantee records her deed after a later deed has been recorded, the
later recorded deed is not in the chain of title. (O gives to A and B separately, A doesn‟t record, B
does. B gives to C, A records, C records. C wins, because A‟s recordation was bunk). Board of
Education of Minn v. Hughes
3. Deeds from common grantor: Courts can‟t decide wither prior deeds out of the same grantor
are within a chain of title. Guillette v. Daly Dry Wall Inc