Issue Spotting Checklist
Part I: Bundle of Sticks
○ A. Rule of Capture: Prior in time: first person to take possession of a thing owns it
1. Possession
2. Pursuit and mortally wounded, capture is practically certain
○ B. Trespass:
Elements:
1. Intent
a. Voluntary act
b. Not knowing not an excuse
2. Intrusion
a. Moment of entry
Exceptions:
1. Consent
2. Necessity
3. Public Policy
○ C. Subsurface: Reasonable Use
○ D. Air: Reasonable Use
○ E. Nuisance (spite fence): nature of harm/ spite fence doctrine
○ F. Adverse Possession:
Elements:
1. Actual Possession
2. Open & Notorious
3. Exclusive
4. Continuous
a. Tacking
b. Seasonal use – look at the land in the context in which it would be used
5. Adverse or Hostile
6. Statutory Period
Part II: Easements
○ A. Prescriptive Easements: Limited rights to use the property of another in a specific way
Elements:
1. Actual USE
2. Adverse or Hostile
3. Open & Notorious
4. Continuous
5. Statutory Period
NOT:
1. No ACTUAL possession
2. No Exclusive
Must be used for the same purpose
○ B. Easement by Estoppel: Owner is estopped from revoking the license if he induces the
other party to reasonably rely on the license.
Elements:
1. Permission
2. Reasonable reliance upon that permission
To his detriment (Typically some kind of investment)
○ C. Servitudes: legal device creating an obligation that runs with the land or with an interest in
land.
Four Issues:
1. What are the formal requirements to create a right or obligation that will run with the
land? When are informally create expectation enforceable by or against subsequent
land owners?
2. When meaning is unclear, how should ambiguities be interpreted?
3. What are the substantive requirements for validity of servitudes?
a. Determining when land use restrictions are immediately void as against public
policy
b. Determining when rights or obligations, although valid as contracts between the
parties who agreed to them will not be allowed to run with the land binding and /
or benefiting future owners?
How can servitudes be modified or terminated?
○ D. Negative Easements: Most common negative easement is a conservation easement. These
easements are created by one property owner paying another property owner not to use or
develop part of its land. This is a form of voluntary private land use restriction. Those
seeking a conservation easement should beware the permanency of the easement, though
○ E. Easement Appurenant: Easement intended to run with the land such that the benefit will
pass to any future owner of the dominant estate and burden imposed on future owns of
servient estates.
○ F. Easement in Gross: Easement are not intended to be attached to ownership of particular
parcels
○ G. Express Easements:
1. Express Easement by Grant: Arises when the servient owner grants an easement to
the dominant owner.
2. Express Easement by Reservation: Arises when the dominant owner grants the
servient land to the servient owner,but retains or reserves an easement over that property.
○ H. Implied Easements: Requires common prior ownership
Elements:
1. Severance of title to land held in common ownership
2. An existing, apparent, and continuous use of one parcel for the benefit of another at the
time of the severance
3. Reasonable necessity for that use
○ I. Quasi Easements: Easement implied by prior use
Elements:
1. Common ownership at some time in the past
2. Use of the servient estate for the benefit of the dominant estate was obvious and
apparent
Necessary and beneficial use of the land
○ J. Easements Implied by Necessity:
Elements:
1. Common ownership sometime in the past
2. Absolute necessity
○ K. Covenants: Land use restriction intended to run with the land. Normally enforced by
owners of dominant estate. Negative covenants- prohibit kinds of users
Elements:
1. Writing
2. Intent for it to run with the land
3. Notice to future land owners
a. Actual
b. Inquiry
c. Constructive
4. Touch and concern
5. Privity
a. Horizontal Privity: Privity between the original parties of the covenant.
Relationship different from just being neighbors. Examples:
i) Mutual covenants
ii) Conveyance of property from one to another
iii) Simultaneous Privity
b. Vertical Privity: Privity between original landowner and later landowners who
take over through the sale of property
(1) Landlord/Tenant not usually vertical privity
○ L. Equitable Servitudes: Land use restriction intended to run with the land.
Elements:
1. Writing
2. Intent
3. Notice
4. Touch and Concern
NOT:
1. Privity
○ M. Defenses for Termination/Modification:
1. Abandonment: So many landowners in the area violate the common covenant that
between their unclean hands and acquiescence, the covenant becomes unenforceable
2. Estoppel: When dominant estate owner orally represents he will not enforce the covenant
to the owner of the servient estate, he may be estopped from enforcing the covenant if it
is shown the owner of the servient estate changed his position in reliance of the oral
argument.
3. Marketable Title Acts: Some jurisdictions require that people re-record covenants after
a certain period of time or it will terminate.
Part III: Estates and Future Interests
○ A. Types of Estates:
Future Interest
1.
2.
3.
4.
FEE SIMPLE
a. FEE SIMPLE ABSOLUTE
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b. DEFEASIBLE FEES
i) FEE SIMPLE DETERMINABLE
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ii) FEE SIMPLE SUBJECT TO CONDITION SUBSEQUENT
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iii) FEE SIMPLE SUBJECT TO EXECUTORY LIMITATION
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LIFE ESTATE
a. LIFE ESTATE WITH REVERSION
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b. LIFE ESTATE WITH REMAINDER
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i) CONTINGENT REMAINDER
ii) VESTED REMAINDER
FEE TAIL
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LEASEHOLD ESTATE
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None
Possibility of
Reverter
Right of Re-Entry
Executory Interest
Reversion
Remainder
Reversion or
Remainder
Reversion or
Remainder
○ B. Fee Simple:
Estate could last forever. The owner can leave it to her heirs or write a will determining
who will get it when the owner dies.
○ C. Fee Simple Absolute:
Absolute ownership
“O to A” or “O to A and his heirs”
Language “in his heirs” does not give any actual interest to heirs
Inheritable
Alienable
NO Future Interest
○ D. Defeasible Fees:
Have the potential, though not the certainty, of infinite duration.
Terminate upon the happening of an event named in the original conveyance, at which
time ownership passes to the owner of the future interest.
Inheritable
Alienable
1. Fee Simple Determinable
2. Fee Simple Subject to Condition Subsequent
Fee Simple Subject to Executory Limitation
○ E. Fee Simple Determinable:
Future interest vests in grantor automatically when the condition occurs.
“O to A, so long as used for residential purposes”
“as long as,” “during,” “while,” “unless”
Subject to a condition, if condition is not met, goes back to O
Inheritable
Future Interest: Possibility of Reverter
○ F. Fee Simple Subject to Condition Subsequent:
Future interest vests in grantor if he asserts if after condition occurs.
Does not automatically end, but ends after the condition occurs and the grantor elects to
re-enter and terminate.
“O to A, so long as used for residential purposes, but if not so used, O shall have a right
of re-entry”
“but if,” “provided that,” “on condition that”
Future Interest: Right of Re-Entry
○ G. Fee Simple Subject to Executory Limits:
Future interest vests in a third party other than the grantor after the condition occurs.
“O to A, so long as used for residential purposes, and then to B”
Same as fee simple determinable except the future interest belongs to a third party rather
than a grantor
Alienable
Future Interest: Executory Interest
○ H. Life Estate:
Ends with someone’s death
Pass to either the grantor / heirs as a reversion or to a third party as a remainder.
○ I. Life Estate with Reversion:
“O to A for life”
Unlike fee simple absolute, no ability to pass the property on after death
Interest can be transferred
Dependent on A’s life
Future Interest: Reversion
○ J. Life Estate with Remainder:
Remainders are either vested or contingent.
“O to A for life, then to B”
Future Interest: Remainder, interests created in a grantee
○ K. Life Estates with Contingent Remainder:
Remainder belongs to an unascertained person or if there is a condition that must be
fulfilled before it can become possessory.
“O to A for life, then to B if B graduates from college”
Future Interest: Remainder
○ L. Life Estate with Vested Remainder:
Belong to an ascertainable person and no conditions must be satisfied before it becomes
possessory.
“O to A for life, then to B”
Absolutely Vested: “O to A for life, then to B”
Vested Subject to Open: “O to A for life, then to B’s kids”
Vested Subject to Divestment: “O to A for life, then to B, but if B has flunked out of
law school, then the property shall revert back to O”
Future Interest: Remainder
○ M. Fee Tail:
Potential to last forever, ends if and when the first fee tail tenant has no lineal
descendants to succeed him in possession
“to A and the heirs of his body”
Abolished everywhere
Most states will convert it to a fee simple
Some states will convert it to a life estate and remainder
○ N. Leasehold Estate:
Estate lasts for a fixed time or by other agreement between a landlord and tenant
“O to A for 10 years”
Landlord-tenant relationship
Future Interest: Reversion or Remainder
○ O. Rule Against Perpetuities: Invalidates future interests that could vest too far into the
future
No interest is good unless it must vest, if it all, no later than 21 years after the death of a life in
being at the creation of that interest.
Applies To:
Contingent Third Party Future Interests (Not vested)
1. Executory Interests: “O to A so long as used for hosp, then to B”
2. Contingent Remainders: “O to A for life, then to B if B graduates”
3. Vested Remainders Subject to Open: “O to A for life, then to A’s children”
4. Options: Courts view options as executory interests
Does Not Apply To:
1. Vested Interests
a. Reversions: O to A for life
b. Vested Remainders: O to A for life, then to B
c. Vested remainders subject to divestment: O to A for life, then to B, but if…
2. Contingent interests in the grantor
a. Possibility of Reverter: O to A so long as used for a hospital
b. Right of Re-Entry: O to A for use as hospital, but if not, then B has right…
Part IV: Tenancy
○ A. Common Ownership: When one or more people own land in common.
Three Forms:
1. Tenancy in Common
2. Joint Tenancy
Tenancy in Entirety
○ B. Tenancy In Common: A form of concurrent ownership where two or more persons own
the same property at the same time.
Characteristics:
1. Undivided Interest: Each T owns right to possess entire property
2. Ownership interests are fractional shares
a. Grantor can grant unequal interest
b. Determines percentage of profits on the sale that each will get
3. Each interest is:
a. Alienable
b. Inheritable
c. Devisable
○ C. Joint Tenancy: Co-ownership that is characterized by a right of survivorship.
Characteristics:
1. Undivided Interest
2. Held in equal shares
3. Right of Survivorship: If one tenant dies, his interest automatically passes to the
surviving tenant (or is divided according to the fractional interests of multiple tenants)
4. Not inheritable
5. Not devisable
6. Four Unities:
a. Time
b. Title
c. Interest
d. Possession
7. Sever: Through transfer. Destroys right of survivorship and creates a tenancy in
common
a. Lease does not sever the joint tenancy
b. Lease terminates with death
Use straw person to sever joint tenancy
○ D. Tenancy by Entirety: Co-ownership available only to married couples.
Characteristics:
1. Undivided Interest
2. Cannot be transferred without the consent of the spouse
3. Right of Survivorship: Cannot deprive the spouse of the right to possession or
survivorship
4. Unities:
a. Time
b. Tile
c. Interest
d. Possession
e. Marriage
f. Many states have abolished the requirements that he parties obtain their title at the
same time
Differences from Joint-Tenancy:
1. Individual Undivided interests cannot be transferred without consent
2. Cannot be reached by creditors of one spouse
Partition is not available – divorce instead
○ E. Rights and Obligations of Co-Tenants:
General Rule:
1. Right to possess the entire property
2. Right to transfer individual fractional interests
3. Right to share rents earned by the property in proportion to their ownership interests
4. Right to lease fractional interest without consent of other co-owners
5. Duty to share maintenance and upkeep expenses
○ F. Landlord/Tenant Law: Tenants differ from licensees because they are entitled to judicial
process. A landlord cannot use self-help to evict a tenant.
○ G. Leasehold Estates: The transfer of possession of real property for either a determinate or
an indefinite period. When the leasehold ends, possessory rights revert to the original
owner. There are express and implied rights and obligations on either side of the contract.
Four Tenancies:
1. Term of Years
2. Periodic Tenancy
3. Tenancy at Will
4. Tenancy at Suffrage
○ H. Term of Years: Lease for a definite period of time.
1. Definite period of time
2. Ends automatically at the end of the time
3. LL’s Future Interest: Reversion
4. Term of Years & Reversion Interests are both alienable (Unless the lease prohibits)
a. LL sale of property does not terminate the lease
5. Death does not terminate the lease
6. Long term leases (year or more) usually required to be in writing
7. Short term leases can be oral
○ I. Periodic Tenancies: Tenancy is for a period that is renewed automatically.
1. Indefinite period of time
2. Renewed automatically at the end of each period unless a party gives notice of
termination at the end of that period
3. Interests are inheritable and transferable (Unless lease prohibits)
4. Death does not terminate
In order to raise rent, must give notice of termination and then begin a new rental
○ J. Tenancy at Will: Tenancy can be terminated at any time by either party.
1. Unspecified period of time
2. Not transferable
3. If LL sells, terminates tenancy
4. Death terminates tenancy
5. Most states have modified to require notice
○ K. Tenancy at Sufferance: When tenant holds over on an expired lease.
1. Entitled to judicial process
2. LL can sue for eviction or create a new lease
3. Liable to the owner for the market value of the lease during the period of occupancy
○ L. Duty to Mitigate: LL had duty to mitigate damages by making reasonable efforts to find a
new tenant. Most jurisdictions reject Wait and See in favor of this approach based on
looking at leaseholds from the perspective of contact doctrine instead of the property
doctrine.
○ M. Assignment: When a tenant transfers his entire interest to another party.
Characteristics:
1. Entire unexpired term of the lease
2. Vertical privity between original tenant and the new tenant – all covenants in the
original lease run with the land and are binding on the new tenant (assignee)
a. New tenant is directly responsible for rent
b. LL can sue new tenant
3. Original tenant and LL also remain in privity
b. LL can sue old tenant
○ N. Sub-Lease: When a tenant transfers a partial interest to another party.
Characteristics:
1. Tenant transfers the leasehold for a shorter period or reserves the right of re-entry
2. Vertical privity is missing and the original lease may not run with the land
a. New tenant not directly responsible for rent, pays rent to old tenant, who pays the
LL
b. LL cannot sue new tenant
○ O. Right to Arbitrary Refusal: Whether a landlord has a right to refuse a sub-lease or
assignment to another person for any reason at all.
Majority: LL and refuse for any reason
Minority: LL must act reasonably in refusing (especially in commercial leases)
○ P. Constructive Eviction in Leases: When acts by the landlord (or a failure to act where the
landlord has a duty to act) so substantially interfere with the tenant’s quiet enjoyment of
the property that a tenant cannot live there and is constructively evicted from the
premises.
Standard:
Substantially and materially deprived T of beneficial use and enjoyment of the property
High standard – must be more than inconvenient or annoying
Remedies:
Tenant has the right to withhold rent
○ Q. Implied Covenant of Quiet Enjoyment: There is an implied covenant of quiet enjoyment
in rental leases providing that a landlord will not interfere with the tenant’s possession,
use, and enjoyment of the property. LL can be responsible for the actions of other parties
– Especially if he owns both properties.
Remedies:
1. Tenant can leave the property and refuse to pay rent
2. May be entitled to damages including the cost of relocating
3. May be able to stay and withhold rent
○ R. Implied Warranty of Habitability: In the 1970s, courts began implying a warranty of
habitability. A duty on the part of landlords to repair or maintain rental property to keep it
up to certain standards.
Characteristics:
All things short of constructive conviction
Non-waivable part of any residential lease
Cannot contract around these requirements
Remedies:
1. Termination of the tenancy (rescission of contract)
2. Rent withholding
3. Rent abatement
4. Damages
5. Injunctive or specific performance
6. Repair and deduct
7. Housing code remedies
○ S. Retaliatory Eviction: A landlord cannot evict a tenant simply because he asserts his legal
rights protected by the implied warranty of habitability.
○ T. Fair Housing Act: Protects against discrimination in housing based on race, sex, religion,
family status, disability, national origin.
Protects Against:
1. Refusal to sell/rent
2. Discrimination in terms and conditions
3. Advertisements
4. Steering: Statements that a realtor makes about a neighborhood
Exceptions:
1. Religious organizations
2. Private clubs
3. Single family home sold or rented to an individual as long as individual doesn’t own
3 houses, no broker, no ad expressing preference
4. Owner occupied multi-family homes
5. Smaller scale private transactions
○ U. Discriminatory Treatment: Must prove discriminatory treatment using burden shifting
scheme.
Characteristics:
1.
Prima Facie Case – Discriminatory Intent
a. Member of minority group
b. Applied for and was qualified for an opportunity
c. Opportunity was denied
d. Opportunity remained open
2. D can prove another reason besides discrimination
3. P can prove that D’s arguments are a pretext
Part V: Public Land Use
○ A. Zoning:
Government prevents harm from incompatible uses by dividing a city into zones,
resolving competing land uses.
Limitations:
1. Prior Nonconforming Uses
2. Variances
Vested Rights
○ B. Prior Nonconforming Uses: When owners established their structures before the new
zoning and it would be unfair to apply these new limitations retroactively.
Elements:
1. Lawful use
2. In existence when the zoning ordinance was passed
Limitations:
1. Nuisance
2. Substantial change – neighborhood would be adversely affected, it would be
inconsistent with surrounding zoning
3. Some juris. put a time limit or strictly restrict any changes of use
○ C. Variances: Permission to deviate from zoning law with respect to specific parcel.
Elements:(Majority View)
1. Impose an unnecessary hardship
2. Proposed use would not be contrary to the public interest and would not substantially
impair the purpose of the zoning plan and ordinance
Standard is high
Run with the land and may have conditions attached
Note: Law is often ignored by boards and variances are granted when there is no
substantial change and no one objects
(Minority View)
Practical difficulties: significant economic injury from enforcement of the zoning
ordinance
○ D. Vested Rights: When a party relied upon zoning code in his investments and is protected
from retroactive changes in the zoning law if the efforts and expenditures were so substantial as
to create vested rights in the completion of the project
Elements:(Majority View)
1. Efforts and expenditures were substantial
2. Developer was acting in good faith
Usually need at least a building permit, but also will need more
(Minority View)
Obtained site specific approval for the development
Do not need a building permit
○ E. Eminent Domain: Government condemns private property, pays owner, uses for public
welfare
○ F. Takings: Fifth Amendment Takings Clause protects property owners from uncompensated
taking of their title or deprivation of their possessory rights by the government.
Prohibits government from:
1. Taking private property
2. For public use
3. Without just compensation