PROPERTY ATTACK
I. FREEHOLD ESTATES
A. Present Possessory Estates
Estate
Fee simple
absolute
Language to Create
“To A and his heirs”
“To A”
Duration
Absolute
ownership, of
potentially infinite
duration.
Fee tail
“To A and the heirs
of his body.”
Lasts only as long
as there are lineal
blood descendants
of the grantee.
Fee simple
determinable
“To A so long as…”
“To A until…”
“To A while…”
The grantor must use
clear durational
language.
“To A, but if X event
happens, grantor
reserves right to
reenter and retake.”
“To A, upon
condition that”
“To A, provided
that”
“To A, but if”
The grantor must
expressly reserve the
right or reentry.
“To A, but if X event
occurs, then to B.”
Potentially
infinite, so long as
the event does not
occur.
“To A for life.”
“To A for the life of
B.”
Fee simple
subject to
condition
subsequent
Fee simple
subject to
executory
limitation
Life estate
Transferability
Devisable
(transferable by will),
descendible
(transferable by
statutes of intestacy if
its holder dies w/out a
will), alienable
(transferable during
life).
Passes automatically
to grantee’s lineal
descendants.
Alienable, devisable,
descendible, subject
to condition.
Future Interest
None.
A’s heirs get
NOTHING.
Reversion (if held
by grantor);
Remainder (if
held by the third
party).
Possibility of
reverter (held by
grantor).
F.S.D.P.O.R.
Potentially
infinite, so long as
the condition is
not breached, and
thereafter, until the
holder of the right
of entry timely
exercises the
power of
termination.
Alienable, devisable,
descendible, subject
to condition.
Potentially
infinite, so long as
stated contingency
does not occur.
Alienable, devisable,
descendible, subject
to condition.
Measured by the
life of the
transferee or by
some other life
(pur autre vie).
Alienable, devisable
and descendible if pur
autre vie and
measuring life is still
alive.
Notes
Right if
entry/power of
termination (held
by grantor).
“It’s my
prerogative” –
Bobbie Brown
Executory
Interest (held by
the third party)
(shifting or
springing)
Reversion (if held
by grantor);
Remainder (if
held by the third
party).
2 Rules re
Defeasible
Fees:
Words of
mere desire,
hope, or
intention are
insufficient
to create a
defeasible
fee.
Absolute
restraints on
alienation
are VOID.
Can’t
WRITE1 on
the walls.
1. FUTURE INTEREST: Remainders
a. REMAINDER RULES
i. FI has to be created at the same time and by the same document as prior estates
ii. Follows a freehold estate, but not a defeasible FS
iii. Cannot cut short the prior estates. Remainderman only takes if the other estate
has naturally expired
iv. No gap between the termination of prior estate and remainderman’s taking of
possession
1. Not fulfilling one of these elements means you don’t have a remainder
and you need to see if you have executory limitation
b. Contingent Remainders
i. Unascertainable
ii. Subject to the condition precedent
iii. Destruction/failure/merger rules
c. Vested Remainders
i. Remainder which is ready to take effect as the present estate immediately upon
the expiration of the preceding estate
1. Indefeasibly vested – going to get it
2. Vested subject to complete defeasance (full divestment) – could lose it
3. Vested subject to partial defeasance (subject to open) – has to share it
2. Rule in Shelley’s Case / Doctrine of Worthier Title
a. RISC
i. LANGUAGE
1. O: BA to A for life, remainder to heirs of A
2. O: BA to A for life, remainder to heirs of the body of A
ii. Result
1. Vested remainder to A
2. Have to follow RISC regardless of grantor’s intent
b. DOWT
i. LANGUAGE
1. O: BA to A for life, remainder to heirs of the grantor
2. O: BA to A for life, then to my heirs
ii. Result
1. Remainder to O (unless makes clear not his/her intent)
3. Rule Against Perpetuities
a. Rule: No interest is good unless it must vest, if at all, no later than 21 years after some
life in being at the creation of the interest
b. What interest:
i. Contingent remainders, executory interests, vested remainders subject to open
c. Counting:
i. Pick a validating life (life in being at the creation of the interest) and add 21
years to the end of their life
d. Creation of interest:
i. Deed (delivery, will (death), conveyance (date of transfer)
e. BIG QUESTION
i. Is the future interest holder’s interest certain
f. RAP: Attack
i. Examine the conveyance
ii. Determine the nature of all estates
iii. Determine which FI are subject to RAP
1. “no interest is good”
iv. When does the ruling period begin?
1. “at the creation of the interest”
v. How long is the ruling period?
1. A life in being + 21 years
vi. What has to happen for vesting?
1. Concurrent Estates
a. Joint tenancy
i. Key feature: Right of survivorship
ii. Language
1. “To A and B as joint tenants with right of survivorship”
2. “ To A and B as joint tenants”
3. “To A and B as joint tenants and then to the survivor of them”
iii. 4 Unities can be important
1. Time, title, interest, possession
iv. Alienation/severance – sale/transfer
1. Consent/notice not required at CL
v. Questionable severances – lease, mortgages
1. Title theory v. Lien theory states
vi. Result of severance – the right of survivorship destroyed and tenancy in
common created
b. Tenancy in Common
i. Only 1 unity has to exist: POSSESSION (no right of survivorship)
ii. Language
1. “To A and B”, “To A and B as tenants in common”
iii. Alienation
1. Gift, sale, will
c. Tenancy by entireties
i. Much like JT, but must be shared by husband and wife
ii. Language
1. “To H&W, husband, and wife”
2. “To H&W, husband, and wife, and the survivor of them”
iii. Unities:
1. Time, title Interest Possession, Husband and Wife
iv. Core feature
1. Indestructible right of survivorship
v. Groups and T by the E: all respect right of survivorship
i.
II. LANDLORD AND TENANT
A. Leasehold or Nonfreehold Estates
a. Tenancy for Years (aka Estate for Years or Term of Years):
i. A lease for a fixed determined period (e.g. from 1/1/03 – 8/1/03). Does not
have to be years. Known termination date from start.
ii. No notice is needed to terminate the tenancy; it ends at the specified date.
iii. A term of years greater than one year must be in writing to be enforceable
(statute of frauds)
b. Periodic Tenancy
i. A lease that continues for successive continuous intervals.
ii. Creation:
1. May be created expressly: “to T from month to month”
2. Or by implication:
a. Land is leased w/ no mention of duration, but provision is made
for the payment of rent at set intervals.
b. An oral term of years in violation of the statute of fraud creates
an implied periodic tenancy, measured by the way rent is
tendered.
c. Holdover: in a residential lease, if L elects to hold over T who
wrongfully stayed on past the conclusion of the original lease,
and implied periodic tenancy arises measured by the way rent is
tendered.
iii. Termination: Must provide NOTICE
1. Usually in writing
2. Notice must be at least equal to the length of the period itself unless
otherwise agreed.
a. Month-to-month periodic tenancy → 1-month notice required
b. But year-to-year periodic tenancy → only 6 months notice
required
3. Parties may lengthen or shorten notice provisions by private agreement.
4. Periodic tenancy must end after a natural lease period (e.g. if the lease
started on 1/1, and T gives notice on 5/15, the lease doesn’t end until
6/30).
c. Tenancy at Will
i. A lease for no fixed duration – “To T for as long as L or T desires”
ii. Need expressly agree to a tenancy at will, otherwise the payment of regular rent
will cause a court to treat the tenancy as an implied periodic tenancy.
iii. May terminate by either party at any time. However, a reasonable demand to
vacate is typically required.
d. Tenancy at Sufferance
i. When T has wrongfully held over past the expiration of the lease.
ii. Allows L to recover rent
iii. Lasts only until (1) L evicts T or (2) elects to hold T to a new tenancy.
B. Tenant’s Duties
a. T’s Liability to Third Parties
i. T is responsible for keeping the premises in reasonably good repair.
ii. T is liable for injuries sustained by 3rd parties T invited, even where L has
expressly promised to make all repairs.
iii. When invitees sue T → T always loses.
b. T’s Duty to Repair
i. Where the lease is silent:
1. T must maintain the premises and make ordinary repairs
2. T must not commit waste (voluntary, permissive, or ameliorative)
3. Fixtures (once movable chattel that, by its annexation to realty,
objectively shows the intent to permanently improve the reality).
a. T must NOT remove fixtures, even if she installed them.
FIXTURES PASS WITH OWNERSHIP OF THE LAND.
b. Where it is unclear that a chattel is a fixture, T may remove the
chattel that she installed as long as the removal does not cause
substantial harm to the premises.
ii. If the lease expressly proved that T must maintain the property in good
condition for the duration of the lease.
1. At CL, T was responsible for any loss to the property, including loss
attributable to the force of nature (earthquake, hurricane).
2. Today, T may terminate the lease if the premises are destroyed w/out her
fault.
Duties of Landlords
1. Implied warranty of habitability
2. Delivery of possession
3. Covenant of quiet enjoyment
.
Breached by actual/constructive eviction
Co-Ownership / Concurrent Interests
1. Tenancy-in-common � no right of survivorship
2. Joint tenancy � 4 unities, right of survivorship
.
Time, title, interest, possession
3. Tenancy by the entirety (only husband & wife)
Transfers of Land
Statute of Frauds: Must be in writing.
Marketable title Duty to disclose defects
Deed (1) Granting Clause & (2) Description of Property (accurate) + Delivery
1. Quitclaim Deed weakest
2. General Warranty Deed best, 5 covenants
.
Seisin
a.
Right to convey
b.
Lack of encumbrances
c.
d.
Quiet enjoyment/covenant of warranty
Further assurances
3. Special Warranty Deed no problems while I owned it but unknown before that.
4. Wild Deed recorded deed, not in the chain of title
Prescriptive Easement (Community Feed Store)
Adverse & Hostile, Actual USE, Open & Notorious, Continuous, Statutory Period - No exclusivity
V.
Easement by Estoppel (Somerville v. Jacobs) Irrevocable license = Easements by Estoppel It started out as a
license, but evolved (ripened) into an Easement
1. Defendant must originally give permission
2. Plaintiff has invested substantially
3. In reasonable reliance on the license
4. Denying continued use would be unjust.
VI.
Easements Implied From Prior Use – there was common ownership over the parcels at some time before
conveyance.
1. Apparent & Obvious
2. Permanent
3. Continuous & Uninterrupted
4. Continued Use is Necessary & Beneficial
5. Unity of Title
6. One part for benefit of another
VII. Easements by Express Agreement
Interpreting Express Agreements
1. Intent of the parties
2. Presumption – Public Policy – the court will want it to be appurtenant instead of in gross.
1. Must be in Writing – signed by the grantor.
2. Intent of the parties
a. Expressed
b. Implied
3. Notice
a. actual
b. constructive
c. inquiry
Covenants
If over 1 year must be in writing.
A covenant will run with the land if:
1. Must have been in writing
2. Intent of the original parties was that it would run with the land
3. Must touch and concern the land
4. Horizontal privity
5. Vertical privity (entire interest transferred)
6. Transferee had actual or constructive notice at the time of taking possession
� Equitable servitudes only need elements 1, 2, 3 & 6 to be enforceable
Real Covenant to run with the land = (1) Must touch & concern the land; (2) Horizontal privity: a
shared interest in the land at the time of contract; (3) intent to bind successors

Mutual Covenant Between Neighbors � no shared interest in land
 Enforceable as a contract between original parties



MAY be enforceable on successors as an equitable servitude
Mutual restrictions on land use.
Covenants that do not touch and concern the land are still enforceable as contracts between the
original parties.
Eminent Domain (5th Amendment)
1. Any takings by gov’t must be for a public use AND
2. Any gov’t that does take the property, even for public use, must fully compensate the owner of
the property.
Kelo v City of New London
“Public Use” can be for: (1) Public Health; (2) Safety; (3) Morals or (4) General Welfare
III. Servitudes
A. Adverse Possession: Possession for a statutorily prescribed period can, if certain elements are
met, ripen into the title.
a. Elements - remember COAH
i. Continuous – uninterrupted for the given statutory period
ii. Open and Notorious – the sort of possession that the usual owner would make
under the circumstances
iii. Actual – the entry can’t be hypothetical. It can’t be symbolic.
iv. Hostile – the possessor doesn’t have the true owner’s consent to be there.
b. Note: Possessor’s subjective state of mind is irrelevant – knowledge that she was
encroaching on the land doesn’t matter
c. Tacking: one adverse possessor may tack on to his time with the land his predecessors’
time so long as there is privity which is satisfied by any non-hostile nexus such as
blood, contract, deed, or will. But note,
i. Tacking is not allowed when there has been an owner
ii. Owster will defeat privity therefore, no tacking is allowed
d. Disabilities: statute of limitation will not run against a true owner who is afflicted with
a disability at the inception of the adverse possession.
i. Common disabilities include: insanity, infancy, imprisonment
IV. Zoning
a. Under its police powers, the government may enact statutes to reasonably control land
use.
b. The government may grant a variance if, the proponent demonstrates (1) undue
hardship, and (2) that the variance won’t work detriment of surrounding property
values. Administrative action, typically a zoning board
c. The non-conforming use: A once lawful, existing use now deemed non-conforming by
a new zoning ordinance: It cannot be eliminated all at once unless just compensation is
paid. Otherwise, it could be deemed an unconstitutional taking.
d. Unconstitutional exactions
i. Those amenities that government seeks in exchange for granting permission to
build
ii. Eg: new street lights, a small park, wider roads.
iii. To pass constitutional scrutiny, these exactions must be reasonably related both
in nature and scope to the impact of the proposed development. If they are not,
these exactions are unconstitutional.