A.

Adverse Possession 6 Elements

Actual & exclusive possession physical occupation as average owner would
Open and Notorious reasonable inspection by owner for notice
Exclusive use of type expected of true owner
Continuous consistent with land, seasonal and periodic acceptable if
consistent w/typical prop. use
i)
Tacking Allow non-owners in privity w/preceding APs to add together
uninterrupted periods of use.
5.
Adverse or hostile possession objective, w/out permission
6.
For the statutory period varies widely from state to state
Adverse Possession Additional Info
The cause of action accrues when all of the AP elements are satisfied.

Can only AP against holder of poss interest at the time cause of action accrues.

Landlord/tenant Tenant can only AP against LL if he repudiates lease first.

Mistaken boundary valid AP boundary violation large enough to be noticed.

Claim of Right statutes Minority juris. req. claim of right test: reqs. that
APs act toward land as average landowner would from which the intention to
claim land is implied. (Small # of states)

Good/bad faith Minority of states require each of these.

B. Freehold Estates Direct restraints on alienation is repugnant to a fee
a) Fee Simple Absolute O to A (and his heirs) no future interest
Defeasible Fees PI terminates at non-death event
a.
Fee Simple Determinable so long as; while; during; unless
i. FI - Poss. Of Reverter (Can AP)
b.
Fee Simple Sub. Cond. Subs. but if; provided that; on condition (can be
cut short)
i. FI - ROE or POTermination (No AP)
ii. Reserves Os right w/in stat. period
c.
Fee Simple Sub. To Exec. Limitation until, then to; but if, then to
i. Future interest to 3rd party (executory) (Can AP against holder of
executory interest)
b) Life Estate for life
a) Reversion (to grantor) reverts auto to O at As death
b) Remainder (to 3rd party) to B on As death
c) Fee Tail No longer exists; use Life Estate.
Future Interests - Remainders
1. Vested Remainder (Patient)
a.
Given to an ascertainable person (not subject to cond prec)
i.
Vested Remainder
1. A remainder certain of becoming poss
2. Example: O conveys Blackacre to A for life, then to B and her heirs.
ii.
Vested Remainder Subject to Open (Partial Divestment)
1. Subject to division among future born persons.
2. Example: O conveys Blackacre to A for life, then to As children and
their heirs. At the time of conveyance, A has one child, B.
iii.
Vested Remainder Subject to Total Divestment
1. Can be destroyed by a future occurrence.
2. Example: O conveys Blackacre to A for life, then to B and her heirs,
and if B does not survive A, then to C and her heirs.; however, if
2. Contingent Remainder Not certain to vest/Meet at least one: (Impatient)
1.
Event that is not certain to happen; and/or
a. Person cant be ascertained at initial conveyance.
b. Subject to a condition precedent (O to A for 100 years, then to B if he
graduates)
c. Destructibility of Contingent Remainders:
i.
If B doesnt meet condition before A dies
ii.
If A doesnt have kids, revers to O to give remainder as fee simple
Future Interests in Transferor:
i.
Reversion Alienable, devisable, and descendible
ii.
Possibility of Reverter and Right of Entry Common law: NOT alienable
or devisable, but descendible
iii.
Executory Interest Common law: NOT alienable or devisable, but
descendible.
Rule Against Perpetuities - limit to dead hand control:
A. O can only control land to account for tendencies of people he knows and the
minor children of those he knows
B. Rule: interest must vest, if at all, no later than 21 years after a life in being.
C. E.g. O->A for life, then to As first child who graduates NYU = INVALID. As
child may graduate > 21 years after A dies. So A had LE, O has reversion.
Uniform Statutory Rule Against Perpetuities (USRAP)
i)
Wait and see approach
ii) Irrebuttable presumption that a widow is a life in being
iii) Reformation (ct. can add a savings clause to keep conveyance from
violating RAP)
iv) Alternative 90 year vesting period: The interest either vests or terminates
within 90 years after its creation
Wait and see approach
v) Common Law: Actually wait until all lives in being at the time of the
conveyance die in order to see if anyone could vest >21 years
laterThis could take a VERY long time. If it has already become
apparent (by the time youre in court) that the conveyance will survive
the RAP, then the ct. will declare it valid. Otherwise, theyll just wait.
1.
2.
3.
4.

vi) USRAP Apply wait and see, but not until 90 years.
Subject to RAP: Contingent Remainder; VR Subject to Open; Executory
Interest
Not Subject to RAP: Vested Remainder; VR Subject to Divestment; Rev./Poss.
Of Rev/ROE
A. Leasehold Estates Each leasehold includes an estate in the tenant, a reversion in
the landlord, exclusive possession in tenant, and a contract between the parties.
1.
Term of Years Estate lasts for fixed per of time. Reversion in LL or
remainder in 3rd party. Req eviction for holdovers. Material breach from either
party could terminate term early.
2.
Periodic Tenancy Period of time, renews auto at end of term date (mo or yr).
30/60 day notice of termination and death of either party doesnt terminate K.
3.
Tenancy at Will Rare, but allows termination at will by either party. Death
terminate tenancy.
4.
Tenancy at Sufferance tenant has rightful poss, but wrongfully stays after
lease ends. (holdover)
Terms must satisfy SOF. Tenancies less than a year can be made by oral contracts.
A breach can lead to eviction proceedings or damages.
1.
Landlord Rights:
i)
Receive rent at agreed for full term
ii) Lease other premises free of interference
iii) Be notified, inspect and repair (w/in reas. Time)
iv) Reversion of poss interest in property
2.
Landlord Duties:
i)
Deliver actual poss (or right of poss)
ii) Fulfill covenant of quiet enjoyment
iii) Maintain premises in habitable condition
iv) No retaliatory eviction thru more rent less serv.
3.
Tenant Remedies
i)
Rescission
ii) Damages
iii) Repair and offset
iv) Rent abatement
Assignments:
1.
Tenant may alienate rights and duties as right of pos
2.
Assignees liable direct to LL from priv of estate
3.
Landlord can still sue original tenant
Sublease:
1.
Provides new tenant w/poss rights
2.
Subtenant has no direct obligation to LL
3.
LL can sue upon breach of original lease
If tenant terminate early, LL has 4 options:
1.
Accept surrender and release tenants from lease
2.
Retake premises and mitigate damages
3.
Accept surrender, treat as breach, and sue for damages
4.
Sue for rent upon accrual, make reas. effort to get new tenants (sue for
mitigation and advertising)
Covenant of Quiet Enjoyment (Implied)
1.
LL promises not to interfere with use
2.
Actual eviction changing locks or physical stop
i)
Allows elimination of rent
ii) Partial AE when undue construction blocks part of prop access (entitled
to not pay rent)
iii) Full Const. Ev. LL interferes so bad theres no practical use. Tenant
must vacate. Removes rent. Interferes with Ts poss and renders
premises unfit for occupation.
(1) Part Const interference with part of leasehold
(2) Court abates rent based on decrease use of property
3.
In Blackett v. Olanoff LL breached ICOQE by not stopping noise by cocktail
lounge tenant. Not intentional, but still deprived tenant of implied right.
Warranty of Habitability safe, clean and fit for human habitation
1.
Implied warrant that LL will comply with bldg. code
2.
Usually frees tenant of rent obligations
Retaliatory Eviction LL must commence summary proceedings to evict.
B. Concurrent Ownership
1.
Tenancy in Common
i)
Each has undivided poss interest, but poss uneven
ii) Each can transfer their own interest and encumber
iii) Tenants may file partition to terminate co-tenancy
iv) Each tenant may use the entire property.
2.
Join Tenancy 4 unities:
i)
Each interest created at the same time (and duration)
ii) All must acquire interest by same title
iii) All must possess equal interests
iv) All tenants must have right to possess whole parcel (undivided interest)
3.
Tenancy by the Entirety (Marriage + 4 unities)
i)
Conveyance made after marriage (straw man)
ii) Survivorship is stronger than joint tenancy (debt)
iii) Severance upon death/divorce/mutual agreement
iv) No encumbrance unless mutual consent
4.
Sharing rights/responsibilities
i)
No duty to pay rent unless ouster (pushed out)

ii) Entitled to proportionate profits

iii) Duty to share basic expenses, some repair
iv) Improvements pay off indiv. at sale of property
*** Every cotenant has the right to possess the ENTIRE PROPERTY .
A. Majority Rules for cotenancy:
i)
Rent from 3rd party: Each cotenant is due their share of rent collected
from 3rd parties (minus maintenance and other appropriate expenses).
ii) Rent from cotenant: Occupying cotenants are NOT required to pay rent to
non-occupying tenants, unless there has been an ouster or agmt to pay.
iii) Expenses: Occupying cotenant has to pay ongoing maintenance, either in
total, or in proportion to the amount of the property that they occupy.
iv) Improvements: Cotenants are NOT required to pay for improvements
made to the property. However, on partition, the improving cotenant is
entitled to the increase in value of the property due to the improvement.
v) Ouster: Once an ouster occurs:
1.
AP begins
2.
Ousted cotenant is due rent
3.
However, ousted cotenant still owes his share of the
maintenance costs (since he still has ownership interest)
(2) Sample definition: Ouster occurs when a cotenant obtains sole
possession of the land that is adverse to the other cotenants, where
the cotenant repudiates or disavows the relation of the cotenancy or
where the tenant without possession is aware of actions by the
tenant.
(3) What Constitutes an Ouster? It typically has to be absolutely clear.
(4) Exclude them from a portion of prop, this can constitute an ouster.
vi) Partition 2 Options
(1) Partition In Kind (actual physical partition of the property) is
preferred, but is often impracticable.
(2) Partition by Sale NOT preferred
1.
person requesting partition by sale has burden of proof to
show that partition in kind is not feasible:
a.
Physical attributes of the land are such that a partition in
kind is impracticable or inequitable, AND
b.
The interests of ALL owners would better be promoted
by a partition by sale
C. The Recording System
1.
General Policy: Purpose of Recording acts was primarily to reign in doubledealers. As long as 1st grantee records, it will work. If they dont record, then
they havent done their part to prevent double-dealing; therefore, subsequent
good faith purchasers get blackacre.
2.
Must be a subsequent purchaser for value (NOT including donees!) AND:
i)
Notice jurisdiction - No notice (actual or recorded) at time of purchase
ii) Race-Notice jurisdiction No notice (actual or recorded) & 1st recorded
iii) Race jurisdiction 1st recorded even with notice
3.
Types of Notice
i)
Actual Notice You actually know of the conveyance
ii) Record Notice If you look at the index you should see the prior
conveyance within the chain of title
iii) Inquiry Notice You need to inspect the property and make the inquiries
that a reasonable person would make (e.g. about power lines running
across your property)
4.
Foreclosure
i)
Judicially supervised req proof of default, existence of mtg, & right to
foreclose
(1) Notice must be given to mortgagor & public
(2) All parties allowed to bid
ii) Reinstatement mortgagor may pay arrears to reinstate the mtg (some
juris)
iii) Equity of Redemption mortgagor pay full amount of mtg to satisfy debt
oblg
iv) Statutory Right of Redemption some juris allow mortgagors to buy back
foreclosed property
v) Deficiency judgment When a foreclosure sale doesnt satisfy existing
debt, some jurs allow mortgagee to obtain DJ against mortgagor for the
balance. (BMW)
5.
Deeds
i)
Must 1) identify parties 2) describe property being conveyed, 3) state
intent to convey, 4) sign
D. Servitudes: Easements Can be appurtenant (run w/land- transferrable) or in
gross (personal and transferrable if intended)
Servient Estate = Land that the easement is on (burdened estate)
Dominant Estate = Property whose owner is allowed to use Easement (benefitted)
Creation of Easements:
1) Prescription Used for same purpose for established period of time.
2) Estoppel License becomes irrevocable due to
a) Detrimental reliance on
b) The consent or acquiescence of servient estate
3) Express Provision (via deed or will)

4)

Implication
a) Time of convey part is being used to benefit other part of land
b) Use is apparent; c) use is continuous; d) use reasonably necessary
for or beneficial to enjoyment of dominant tract
5) By Prior Use
a) Implied by necessity
b) One parcel, split and sold (land now landlocked)
Easement Types:
1) Appurtenant runs with the land/owner benefits not divisible
2) In Gross Benefits party who doesnt own dominant estate (elec co.)
a.
Transferable if that was the INTENT of the original parties.
b.
Purely personal or commercial gain (right to swim, utility
lines)
c.
Not transferable unless commercial
Licenses temporary permission granted to enter property for delineated purpose, freely
revocable unless estoppel, ie: ticket
Five Types of Servitudes
(1) A is given the right to enter upon Bs land = easement
(2) A is given the right to enter upon Bs land and remove something attached to
the land = profit
(3) A is given the right to enforce a restriction on the use of Bs land = easement
(4) A is given the right to require B to perform some act on Bs land = real
covenant or equitable servitude
(5) A is given the right to require B to pay money for the upkeep of specified
facilities = real covenant or equitable servitude
Termination of Easements
1) Agreement must be express, written agmt
2) Expiration look at original terms of grant
3) Merger same person owns dom and serv estate
4) Abandonment intent + overt action
5) Prescriptive use by servient estate owner (adv. Use)
6) Cessation of purpose no longer need for it
Divisibility: Appurtenant Easement can only be subdivided if property is.
Profits (in gross) Can NOT be divided.
Profits (in gross) Can be assigned Expressly created by agmt nonposs interest to
take natural resources, ie: petro, minerals, timber, wild game from the land.
E. Servitudes: Real Covenants & Equitable Servitudes
These are burdens placed on land that limit rights of future property owners.
Covenant promise to do or not something related to land, promise to refrain from
doing something to land.
Equitable Servitude promise that equity will enforece against successors, will
bind success, privity no needed to bind
With Notice, 3 things must be present:
a. Covenant/K that complies with SOF;
b. Must be a clear intent that it runs with the land
c. Must be the type which touches and concerns the land
d. Horizontal and Vertical privity reqd for covenants
1. Implied Reciprocal Negative Servitudes common owner sells land and wants to bind
all owners (developer and then HOA):
1. Intent to create common scheme/plan from beginning
2. Must touch and concern the land AND
3. Notice
a. actual recorded plat or map, or in deed
b. constructive notice in majority of deeds
c. inquiry observance by landowners of other lots
*Amendments to IRNS must be reasonable and clear.
2. HOAs, Condos and Alienation Restraints
1. Rules in declaration are presumed valid
2. Rules from gov board must be reasonable
3. Burdens must be uniform, otherwise not valid
4. Alienation
a. No direct restraints on alienation
b. Must be reasonable
5. Modifying covs/Anticompetitive Covenants
a. If fundamental/substantial change, no good
b. Restriction on competition (time, space, PP)
F. Protection against Discrimination in Housing
a) Civil Rights Act of 1866: No discrimination based on race
b) Federal Fair Housing Act: 1968 More comprehensive than the Civil Rights
Act:
G. Eminent Domain
1.
5th Amendment requires Just Compensation for land taken for Public
Purpose.
2.
Fair Market Value (may be tax value, but most likely not)
3.
Kelo v. City of New London The Supreme Court decided that public use
interpreted to mean public purpose.
H. Indian Law

1.

Justice Marshall: Right of Occupancy