Property
Personal Property
1. Property: “bundle of rights”
1. A person can have one right or several rights (sell, give away, pass on after death)
2. Rights can be co-owned
i. ex. when you sale your property to another or when you give your property to others
3. Particular rights can be sold WITHOUT transferring ALL rights
4. Temporal division (right to possess that property for a specified period of time)
i. ex. leasing, time share
2. Realty v. Personality
1. Real Property (land, buildings)  land & attachments to land
2. Personal Property is divided into two categories
i. Tangible personal property (physical objects):
1. animals; furniture; jewelry; vehicles
ii. Intangible personal property (cannot be touched):
1. bank accounts; stocks; debts, cash
3. CL distinction b/t real property (rights in land) & personal property (rights in chattels)
i. real property actions π may recover the actual object of the suit
ii. actiones in personam the successful π may recover only damages for wrongs to the π’s
property
A. POSSESSION
1. Wild Animals
a. pursuit alone does not vest a property right
b. quarry must be mortally wounded, killed, or captured to vest property right
i. Pierson v. Post Post was hunting in an uninhabited (land) for a fox. Pierson intervenes
& kills fox. Post brings a trespass claim against Pierson claiming that he had legal
possession of the fox. Mere pursuit of a wild animal without mortally wounding or
trapping the animal is not enough to confer property rights. The animal must be deprived
of its natural liberties & render escape impossible.
ii. This was a case of first impression so the court looked at primary & secondary sources to
solve this case.
1. Primary: English cases [not helpful]
2. Secondary: philosophers & scholars
a. Said possession requires for the animal to be mortally wounded & not
abandoning pursuit, securing by nets & toils rendering escape impossible
iii. Policy Argument: “not giving property rights to someone in mere pursuit is done for
the sake of certainty & preserving peace & order in society”
B. FINDERS/FOUND PROPERTY
1. Relativity of Title: a person can have superior title relative to one person but no superior title relative to
another (depends on who is making a claim against whom)
a. 4 Common Law Classifications: (MALT)
i. Abandoned property
1. property the owner no longer wants & voluntary relinquishes rights to it
2. the finder has absolutely right to it
1
ii. Lost property
1. property the owner wants but has unintentionally parted with and cannot find (no
intent to give it away)
2. finder has right to the property if the original owner has not claimed it (within 12
months Iowa) after statutory procedures of awareness have been made
a. your wallet gets knocked to the floor—requires evidence
iii. Mislaid property
1. property the owner intentionally places & forgets about
2. the owner of the premises where the property has been found gets to keep it
a. Benjamin v. Linder Aviation, Inc.  Bank repossessed an airplane & took
it to Lindner aviation where one of Linder’s employees inspected and
found old bills rapped up in one of the left wing of the airplane. All 3
parties claimed the money under the finder’s statute. Court held the
property was mislaid bc the careful placement of the $ suggests that to
owner intentionally left it; thus, it belonged to the owner of the premises
where the property was found–the Bank.
b. placing wallet on the desk & walking away & you forget
iv. Treasure trove
1. money, coins, or jewelry intentionally concealed by the owner so long ago that the
owner cannot be found
2. finder has a right to it if the original owner has not been found
a. Favorite v. Miller  A finder will loose his right to a piece of property if
he obtained it by knowingly trespassing onto another’s land. In this case,
∆ knew that he was trespassing π’s land & he failed to ask π for
permission before excavating π’s; thus, ∆ should not benefit from his
wrongdoing.
i. if the property was embedded & there was a trespass it belonged
to the owner of the locus(property)
C. BAILMENT (only for personal property)
a. Bailment is the transfer of possession of goods to another with the understanding (express or implied)
that the goods will be returned.
i. Bailor transfers to the bailee.
1. “ees” have possession of res or thing
ii. express: parties agree on the terms
iii. implied: casual or implied by law
b. Elements of Bailment (REQUIRED):
i. bailor intends bailment agreement [express or implied]
ii. bailor delivers physical control of the good [delivers good]
iii. bailee has intent to possess or control object (accepts)
c. Types of Bailment
i. Bailment for the sole benefit of the bailee (borrowing a friends car)
1. liable even for slight negligence (bc bailor is receiving no benefit)
ii. Bailment for the sole benefit of bailor (asking friend to care for the dog)
1. gross negligence liable (higher standard of care)(bc bailee is not receiving a benefit)
iii. Bailment for mutual benefit/ “bailments for hire” (safe deposit box/ parking garage)
1. liable for ordinary negligence (reasonable person standard)
2
2. misdelivery= strict liability
a. Allen v. Hyatt Regency-Nashville Hotel  Allen drove his car into a parking
garage that was under ∆’s supervision, but when he returned to collect it
several hours later it was gone. An express bailment relationship was created
when Allen drove into the parking garage and obtained a parking ticket &
took the car keys with him. If bailment is established, bailor is entitled to
statutory presumption of negligence which shifts the burden to the bailee to
prove that he exercised due care/was not negligent.
b. Buena Vista Loan & Savings Bank v. Bickerstaff  π sues Bank after an
alleged mysterious disappearance of $9,400 in cash from a safe deposit box
that π had rented from the bank. There was an express bailment so there was
a presumption of negligence and bailee had the burden of proving its
diligence. Bank failed to meet the standards or care of the industry (failed to
exercise ordinary care).
i. If proof of loss is shown, there is a presumption of negligence
c. Shamrock Hilton Hotel v. Caranas  π’s were dining at the hotel’s restaurant
were she left her purse behind. The purse was found by a bus boy who
delivered the purse to the restaurant cashier. Later on, the cashier gave the
purse to another man who claimed it. π sued the hotel for negligent
misdelivery of the purse seeking recovery for 10 jewelry pieces she had in the
purse for the value of $13,062. This was an implied bailment. Once the
bailee assumed possession, he alone had the duty to safeguard the bailed
article.
i. In Common Law if there is a misdelivery of bailed goods, then there
is STRICT LIABILITY, but only for express bailments.
D. GIFTS
a. A voluntary transfer of property to another without compensation or consideration.
b. Gifts can be either:
i. Inter vivos: (b/t the living)
1. effective immediately
2. irrevocable
ii. Causa Mortis: (anticipation of death)
1. effective immediately
2. maybe revocable (revocable by the donor’s express revocation, recovery from
peril/illness, or outliving the donee (person who received the gift).
iii. Both require a showing of: (PDA)
(1) present donative intent;
 critical element, look at the surrounding circumstances
(2) delivery (such as to divest the donor of dominion or control); and
(3) acceptance by donee (often presumed).
Gruen v. Gruen
 Inter vivos gift can be made when the donor retains possession during their life
 Donor can transfer future possessory interests in an item without delivering gift
 Acceptance can sometimes be presumed when gift is of high value
Braun v. Brown
3

Causa mortis gift was effective
E. ADVERSE POSSESSION
a. Acquiring title to property by occupying it in a certain manner for a particular period of time
b. Possessor can gain title regardless of owner's intent
i. Purpose:
1. to assure maximum utilization of land
2. encourages rejection of state claims
3. quiet title
c. Claims often arise in ejectment, trespass, or quiet title actions
Seven Elements of Adverse Possession (ACRE COP(P))
1. Adverse/hostile
 good faith is not necessary (may depend on jurisdiction)
 treat property as though it is your own
 not met if permission given by title owner
2. Continuous
 Depends on nature and condition of premises
3. Required time
 Time limit depends on statute
4. Exclusive
5. Claim of right
 Claim ownership due to having taken possession (no permission)
6. Open and notorious
 Original owner / ordinary person should have known
7. Possession – must be on the property
 Actual
 Constructive
8. Property tax payments (only in some jurisdictions)


Claim of Right v. Color of Title
o all elements the same as adverse possession except
 Color of title = claim based on title information (four corners of title)
 Allows for constructive possession of land as described in defective instrument (what is on paper, even if
paper is wrong)
 May have to pay property taxes; depends on jurisdiction
 Claim of Right = professed claim
Florida Statute – Adverse Possession : §95.18
Chaplin v. Sanders
 If anyone else, including the true owner, is in possession, claimant can't meet "exclusive" element
 Different when we do adverse use prescriptive easement
o Right of way use can be by both claimant and owner (or others)
o If court in easement case mentions "exclusivity," usually interpreted as requiring only that the claimant
establishes possession

Carpenter v. Huffman
Mistaken property boundaries on deed that wasn't properly owned
4



Tacking – combines period of possession of a prior possessor with that of a subsequent possessor in order to meet
the required time
o Adverse possession is not defeated by transfer of record title owners
o If land is subject to future interest holders (heirs), then adverse possession time only runs against present
holder (upon death, time period resets)
Privity – (1) consensual transfer; OR (2) legally formed relationship (heir)
o No need for formal conveyance between the parties
o No privity (no tacking) when transfer is nonconsensual
 Ouster – non-owner demands other non-owner to leave premises
 Abandonment – if first party leaves and second party moves in, no tacking
Tolling – exceptions often made for property owned by children or the disabled
Jarvis v. Gillespie
 Property sold by city, but adverse possessor of land had actual possession
 Landowner can interrupt continuity (move in, file action for ejectment)
o Written demand letter not sufficient if adverse possessor refuses to listen
Marengo Cave Co. v. Ross
 Cave extended below land of nearby property owner
 Not open & notorious when there is no way for property owner to know that it is his
F. CONCURRENT INTERESTS (they must all have POSSESSION)
 Consecutively held: O conveys "to A for life, then to B for life, then to C"
 Concurrently held: O conveys "to A, B, and C as tenants in common in fee simple absolute"
 Concurrent interests can be present or future
o Concurrent present interests
 O conveys Blackacre "to A and B so long as the property is used as a residence"
o Concurrent future interests
 O conveys Blackacre to A for life, then to B and C as joint tenants


Unities: essential to create and maintain concurrent estate
Five Unities – T-TIPP
1. Time: all tenants take their interests at the same time
2. Title: all tenants take title from same instrument
3. Interest: all tenants have identical shares
4. Possession: each tenant has possession of the whole
a. all persons holding interest have right to possess entire parcel (no exclusion)
5. Person: Husband & Wife form one person
THREE CONCURRENT ESTATES:
a. Tenancy in Common (TIC)
i. requires 1 unity (possession)
1. unities are essential to create and maintain concurrent estate
2. Modern Approach  presumption that all conveyances to 2 or more persons are
intended to create a TIC
3. If want something other than a TIC, need clear, express unambiguous language to
rebut presumption
5
4. FL § 689.15  "except for TBE, a devise or conveyance to 2 or more personas creates
a TIC, unless instrument expressly provides for right of survivorship”
5. In Re Estate of Michael  Dispute over ownership of land between brothers; passed
down from mother/father
a. Issue : whether 2 couples hold their ½ interests at JT or TIC; where deed
language is unclear
b. Statutory presumption = TIC insufficient evidence to overcome presumption;
ambiguous – no clear expression of interest; no specific designation of JT in
will
b. Joint Tenancy (JT)
i. right of survivorship
ii. requires 4 unities: (time, title, interest, and possession)
iii. one co-tenant could sell their part without the other T’s permission
iv. JT can’t devise their interest at death.
v. Married couples could have a JT & if there is a divorce, the right of survivorship remains
unless they take care of it in a property settlement agreement.
1. Porter v. Porter wife & husband divorces, they had a JT, though the husband
remarried & later died, under the right of survivorship the original wife kept the
residence.
vi. Creditor of JT or TIC
1. JT or TIC can convey his interest during life
2. creditors can reach interests of both JT & TIC
3. Anything that is alienable solely by the debtor can be reached by her creditor and a JT
can be sold by one Joint Tenant without the other T’s consent.
c. Tenancy by the Entirety (TBE)
i. requires all 5 unities: (time, title, interest, possession, and person)
ii. exclusive for husband and wife; if there’s a divorce it gets rid of the unity of the person and
thus becomes a TIC.
1. Fla. Stat. § 689.15—“in case of estates entirety, the tenants, upon dissolution of
marriage, shall become tenants in common”
iii. Right of survivorship
iv. Sawada v. Endo  Can an interest in a TBE be reached by a creditor of one spouse?
1. A creditor can reach anything that a debtor alone can voluntarily alienate
2. "a creditor can step into the shoes of the debtor"
3. once creditors are in horizon, a gratuitous transfer is generally fraudulent
4. transfer is not fraudulent if creditors never could have reached specific property
5. Married Women's Property Act
a. GROUP I: Common Law View (no longer followed) creditors can only get
from the husband the property if the wife dies bc of the right of survivorship.
If the wife had a debt the creditors could not have right to the property.
b. GROUP II: Treat W & M as equal. Creditors get the independent interest
subject to the others right of survivorship; they could attach the present
possessory interest.
c. GROUP III: The majority view. Husband & wife are one. Creditor cannot
touch the debtors property if held in TBE. Husband cannot alienate any
portion of the property without her wife’s consent and vice versa.
6
d. GROUP IV: creditors could reach the parties right of survivorship. If the
debtor dies then the creditor could not take the wife’s interest. But if the
person is still alive they can’t move in.
d. Rights and Obligations Among Cotenants.
i. Income among co-tenants
1. 1704 most U.S. jurisdictions follow the Statute of Ann (CL) (pg. 258)
a. Absent an ouster (forcible removal), a co-tenant in sole possession is not
liable to his non-occupying co-tenants for the value he derives from
possession of the whole.
b. Unity of Possession
i. ex. Carl & Lenny each own ½ in TIC, Carl gets a job somewhere else
and moves out, if Lenny continues to live in the property and Carl
voluntary moves out. Lenny is not required to pay for the property bc
there was no ouster Carl voluntarily moved out.
ii. ex. If a co-tenant obtains rental from a 3rd party, the other co-tenants
are entitled to their share. If Otto pays rent of $1000/mo. to Lenny, he
would have to give Carl half.
c. Tenant in Possession after ouster
i. If non-occupying tenant was ousted, tenant in possession must
account (pay the other). He is entitled to a fair share value of the
market value (“FMV”).
ii. ex. Carl & Lenny own ½ each. Carl was ousted. Lenny in sole
possession must give Carl his share of FMV rental.
ii. Expenses (2 types)
1. Upkeep expenses (maintenance)
a. Co-tenants are responsible for upkeep expenses such as maintenance and real
property taxes.
b. Co-tenant paying more than his share of upkeep expenses has contribution
action.
i. Some jurisdictions have presumption that if co-tenant pays more than
his share of upkeep expenses it is deemed a gift to the other cotenants. THIS IS REBUTTABLE
2. Capital Improvements (last more than 1 year)
a. ex. re-roofing the house, re-tiling the areas
b. Depends on whether there was an approval from the other tenant. Co-tenants
are not responsible for non-authorized capital improvements.
c. No right to “contribution” from the other party.
i. Remedy might be a partition action (terminates the relationship):
1. Physical partition (“in kind”) court will try to partition
(divide) the improved land to the tenant who made the
improvement
a. sometimes this may be dif. if the land being divided
is not flat bc it would not be fair to the other party so
the next step is to sale it . . .
2. Partition by sale improving co-tenant would obtain his/her
fractional share plus any portion of the proceeds of the sale
attributable to the improvements.
7
Graham v. Inlow
 Improving co-tenant gets her fraction of profits plus the difference between value of the property as a whole
w/ improvements and value of property as a whole w/o improvements
 dispossession of a cotenant [ouster] is a question of fact
Coggan v. Coggan
 Without ouster, a cotenant w/ exclusive possession is not liable to his cotenant
e. SEVERANCE (Termination)
i. Porter v. Porter  Divorce causes a TBE to become TIC (most states)
ii. What result if the deed that severed the joint tenancy not have been recorded? Then it would
have been a secret severance and this opens up the door to fraud
iii. Taylor v. Canterburry  owner of 666 ranch that conveyed the land back to himself as TIC
after he had conveyed it previously to himself and Canteburry as a JT. In common law, the
courts allowed this transfer through a “strawman” now the courts held that if this was allowed
why not allow the actual conveyance of the original tenant to himself. Other jurisdictions such
as Minnesota, California and Nebraska have allowed such unilateral conveyances. Thus, in
Colorado a joint tenant may sever a JT by conveying the property to himself or herself as a
TIC, without the need for an intermediary “strawman.”
iv. Tenhet v. Boswell  Does lease by one JT sever the JT? Depends on Jurisdiction.
1. common law—yes, lease severs JT
2. some jurisdictions –lease creates temporary severance during period of lease
3. other jurisdicitons—lease is terminated by death of leasor JT
v. Does Mortgage by one JT cause a severance of JT?
1. Lien Theory  execution of a mortgage by one JT does not sever the JT, the owner
retains legal & equitable tittle to the property
2. Title Theory (FL is generally this) if one JT gives his interest in the property it
severs the unity and the parties will now be TIC. The bank will ask for the signature
of the other party in this situation.
vi. Hypo: If A and B owned a land as JT. A murders B. Who owns the property?
- Most states treat this as a severance and they become TIC.
1. Fl. Stat. § 732: JT who unlawfully and intentionally kills another JT effects a
severance.
G. INTERESTS & ESTATES IN LAND
a. History
i. Develops really slowly overtime, sometimes in historical situations.
1. 3 Competing Interests:
a. Govt.’s need for revenue TAXES TAXES TAXES
b. Landowner’s control
c. “Capitalism” Free alienability
ii. Battle of Hastings 1066—William the Conqueror
1. Norman conquest of England, William conquered England and started feudalism, back
then land was the source of wealth
2. Tenant “holding for the King” but these tenants had to continue to do things for the
King continued oath of loyalty.
a. Services “payments”  typically “knight service”
8
b. Incidents  relief (inheritance tax), aids (contributions to the lord in times of
emergencies), escheat (forfeiture of the land if the tenant was convicted of a
felony or died without heirs), wardship (lords right to rent & profit while an
heir was still a minor), marriage (arrange marriages)
i. relief, wardship, and escheat were the most profitable
3. Seisen
a. Freehold estates were transferred by physical livery of seisin in feoffment
ceremony (this was critical to do this)
b. Land could only be transferred voluntarily.
c. Person seized was responsible for the incidents
d. feudal times-no gap in seisin
b. ESTATES IN LAND
i. Freehold Estates
1. Fee Simple
a. Fee Simple Absolute (infinite duration, no future interest connected to the
property) / O “to A and his heirs”
b. Fee Simple Defeasible (can be terminated or cut short sometime in the
future)
i. Fee Simple Determinable (FSD)
1. Intended to terminate if a condition has been violated, if a
condition occurs it terminates automatically
2. “while,” “until,” “so long as”
3. grantor retains a future interest in the possibility of reverter
ii. Fee Simple Subject to Condition Subsequent (FSSCS)
1. gives the grantor the right to terminate it by affirmative action
if the condition is broken
2. “provided that,” “on condition that,” “but if”
3. right of re-entry
There’s a constructional preference for FSSCS over FSD.
2. Non-Fee Simple
a. Fee Tail (also called an estate in tail)
i. least important in modern law bc it is no longer a viable estate and
only (Delaware, Maine, Massachusetts, and Rhode Island) still use it.
O “to A and the heirs of his body,”
ii. after A’s death it would pass to A’s issue, or if none, the property
returned to the grantor or the grantor’s successor . . . unless the
grantor has no one else left then it would ashiest to the estate.
1. Denotes time dimension—lasts until no more issue (no more
descendants)
2. Common Law Estates (few states) fee tail is created but
tenant can divest the estate
3. Statutes:
a. Fee tail language means FSA (majority)
b. Fee tail converts to life estate in first taker, remainder
in FAS in issue (FL)
i. “A” would take a life estate for as long as A
is alive.
9
c. Fee tail in one generation, remainder in FSA in issue
4. A has a present possessory Fee Tail
b. Life Estate
i. Is measured by the life span of the recipient of the life estate
ii. Can also be measured by the life of another person (pur autre vie)
ii. Non-freehold Estates
1. Leasehold Interest
a. tenancy for a fixed term (estate for years)
b. periodic tenancy
c. tenancy at will
d. [tenancy at sufferance-holdover]
iii. To Transfer Title
1. Intent
2. Delivery
3. Acceptance
a. How much did Grantor Intend to convey? Look at the used words by the
grantor
i. Words of Purchase  describe the grantee, the purchaser
ex. O to A “to A” words of purchase.
 Interest present or future
ii. Classify the Interest of first purchaser present/future
iii. Words of Limitation  describe the limits on time dimension
ex. O to A for life “to A” words of purchase, “for life” limitation
 “for life” life estate
 “for 10 years” estate for years/tenancy for fixed term
 “and his heirs” fee simple absolute
o Today, “to A” creates a fee simple absolute in A.
iv. Solve for grantor!
iv. Fundamentals (like the Gorry painting case)
1. Holder of future interest has a recognized interest that is valuable now
2. Future interests are presently EXISTING
3. Called future interest bc not possessory until some time in the future
v. Steps:
1. Words of Purchase [to A]
2. Interest (present or future)
3. Words of Limitation [and his heirs “FSA”] [for life] [for 10 years]
4. If more than one purchaser, repeat steps 2 & 3 for each remaining purchaser.
5. Finally, solve for Grantor.
O “to A and his heirs”  A’s children cannot prevent A from selling the land.
 “to A” words of purchase
 A has a present interest
 “and his heirs” words of limitation
 denotes time dimension—infinite duration—called fee simple absolute (FSA)
 A has a present possessory interest in a fee simple absolute.
10
Examples from (Pg. 227) & HYPOS:
O “to A for life.” B wants ta secure lease for 10 yrs.
 A has a present possessory interest in LE.
 O has a possibility of reversion
 Include O in the “K” so the “K” stays in place.
O “to A for the life of B.” A dies before B.
 A has a present possessory interest LE pur autre vie (p.a.v.)
 B has nothing he has just there as a “measuring life”
 O has a possibility of reversion.
 Early Common Law allowed the first person after A’s death to stay there until B died.
 Under Modern Law A’s successor in interest could generally take the property after B died.
O “to the caretaker for the life for the life of my mother.”
 Caretaker has a present possessory interest LE (p.a.v)
 O retained a reversion.
 Mother has nothing, she is just measuring life.
 Modern Law If caregiver dies first, the caretaker’s successor in interest can keep the property.
O “to A for life”
 A with LE conveys his interest in Blackacre to B
 B has a present possessory interest LE (p.a.v.)
Pg. 227 #3 and 4 –“WASTE”
 When you make changes to the property. LE holders are holding land this concept comes up. LE holders are
limited to what they can do to a house bc it would be considered waste too the individuals who have a future
interest in the property.
 “material” change= waste even if enhances [like a pool]
 “ameliorating” waste = life tenants are not liable for changes which
(1) are dictated by the surrounding circumstances and
(2) enhance the value of the remainderman’s interest
 In FL a life tenant is responsible for maintaining the value of the property, and the property taxes as well as the
interest of the mortgage loan; while the future interest pays the principal of the loan.
O conveyed “to A for life.” O dies one year later.
 A has a present possessory interest in a Life Estate
 O retained a reversion
 O’s reversion goes to O’s successors in interest.
O “to A & his heirs so long as the property is not used for commercial purposes”
 A has a present possessory interest in a fee simple determinable”
 O has a possibility of reverter (automatic if the condition is not met)
O conveys “to Miami General Hospital forever, so long as the land is used for hospital purposes; if the land ceases to
be used for hospital purposes, the conveyance shall be null and void”
 Miami General hospital has a present possessory interest in a defeasible estate (fee simple determinable)
11


O has a possibility of reverter, which occurs automatically once there is a breach of condition meaning the
hospital stops using it as a hospital & will automatically go back to the grantor “O”.
In FL, if the hospital stopped using it the grantor could take it back after 21 yrs.
O conveys “to Miami General Hospital forever, so long as the land is used for hospital purposes; if the land ceases to
be used for hospital purposes, to Bob and his heirs.”
 To Miami General Hospital; to Bob
 Hospital has a pp FSD
 Bob has a future interest
 Is it a Remainder? NO
 Is it an executory interest? YES
 Bob has a Shifting Executory Interest (grantee to grantee) in FSA.
 The hospital has a FSD subject to a shifting executive interest.
 O does not retain anything.
A. FUTURE INTEREST in Grantee
A. REMAINDER
i. a future interest in someone other than the grantor
ii. that would become a present possessory estate, if ever,
iii. immediately
iv. upon the natural expiration of prior
v. non-fee simple estates
vi. created simultaneously with it.
1. VESTED (two part test)
a. No condition precedent; AND
b. At the time the creation of interest was created its possible to identify at
least one person.
i. INDEFEASIBLY VESTED REMAINDER
1. best type to have, cannot be destroyed or diluted
ii. VESTED REM. SUBJECT TO OPEN
1. remainders in a class (meaning to my children, to A’s
children; it’s a group of people identified by a label)
2. can only be vested if at least one of those people can be
identified from the time the interest is created (when the
deed is given or when the grantor dies if its through a
will)
iii. VESTED REM. SUBJECT TO COMPLETE DIVESTMENT
1. condition subsequent “to B but if he gets divorced”
2. CONTINGENT
a. A remainder that does not meet the definition of vested.
b. If conditional language part of formulation of remainder it is a conditions
precedent
i. “if/ but if” distinction:
1. “if” condition precedent
a. “if B marries before A dies, to B”
2. “but if” condition subsequent
12
a. “to B, but if B starts smoking again”
c. Condition precedent
d. Remainder is in an unborn person
e. Remainder is in an unascertained person
b. EXECUTORY INTEREST (said history below will not be in the test)
i. The “Use” (another term for Trust)
1. To avoid restrictions on land transfers, there couldn’t be a gap in transfers
a. “O to T and his heirs for the use of the Franciscan Friars”
2. Functional equivalent of wills (lands were not alienable back then)
a. “O to T and his heirs for the use of O for life and then by such uses as O
designates by will”
3. To avoid incidents—a tax loophole
a. “O to T1 and T2 and their heirs for the use of C1 and his heirs”
4. To sell by Bargain and Sale
a. O for valuable consideration sells Blackacre to A. “O was the trustee for
the use of A and his heirs”
i. under the courts of law A had nothing, under the equity courts A
had an equitable interest
ii. Statute of Uses
1. Executes the Use
2. As soon as the equitable interest is created the statute of uses converts it into a
legal interest in the beneficiary of the use
3. Turns equitable interest into legal interest
a. does not apply to active trusts; AND
b. does not apply to personal property
c. EXAMPLE: “O agreed to sell land to A. A paid O the purchase price and
O executed a bargain and sale deed to A.” Originally legal title did not
pass bc there was no livery of seisen. Equity courts, however, recognized
the agreement and required O to hold legal title for A’s benefit. The
Statute of Uses then converted A’s equitable title into legal title.
d. Allowed O to sale to A by legal documents.
iii. Phases of Conveyance
1. Phase 1--Era of Livery of Seisen
2. Phase 2--Era of Statute of Uses
3. Phase 3--Era of Statute of Frauds
4. Phase 4--Era of Recording Acts
iv. Executory Interest
1. A Future Interest in Someone Other than the Grantor that is not a Remainder.
(apply the definition of remainder first).
a. Springing E.I.
i. An executory interest that must, in order to become possessory,
divest the GRANTOR following a certain period of time during
which no other grantee is entitle to possession.
1. Grantor to Grantee
13
b. Shifting E.I.
i. An executory interest that must, in order to become possessory,
divest or cut short some interest in another GRANTEE.
1. Grantee to Grantee
v. 3 Important Times
1. Creation (conveyance, or device)
2. Vesting
3. Possession
vi. When do Interest vest and become possessory?
1. Contingent Remainders vest? When the condition is met.
2. Contingent Remainders become possessory? When the prior estate ends.
a. “O to A for life, then if B graduates, to B”
i. B’s CR is vested when he graduates
ii. B’s CR become possessory after A’s life.
1. dif. times
vii. When do Executory Interest Vest?
1. “O to A for life, but if A remarries, to B for life.”
a. B’s Shifting E.I. Vest: if A remarries
b. B’s Shifting E.I. become Possessory: if A remarries
i. same times
c. Rule of Construction re: Survivorship
i. Unless survivorship to the time of possession is expressly required by the instrument, it is
not a condition.
1. ex. “O to A for life, then to B and his heirs.” Since B’s interest not expressly
conditioned on surviving A, B doesn’t have to survive.
2. No conditions –precedent or subsequent—attached to B’s interest.
“to A for life, then to B and his heirs”
 To A; to B (WORDS OF PURCHASE)
 A has a present possessory interest in a life estate
 B has a future interest (THEN APPLY THE REMAINDER DEFINITION)
o future interest in someone other than the grantor YES
o that would become a present possessory estate, if ever, YES
o immediately YES
o upon the natural expiration of prior YES
o non-fee simple estates YES
o created simultaneously with it. YES
 Apply VESTED TEST,
o No condition precedent; AND at the time the creation of interest was created its possible to identify
at least one person. YES
 B has an indefeasibly vested remainder in FSA.
“O to A for life, then if B is alive at A’s death, to B and his heirs”
14








To A; To B
A has a present possessory interest in LE
B has future interest
Does B have remainder
o future interest in someone other than the grantor YES
o that would become a present possessory estate, if ever, YES
o immediately YES
o upon the natural expiration of prior YES
o non-fee simple estates YES
o created simultaneously with it. YES
What type of remainder: VESTED or CONTINGENT
Its subject to a condition precedent so it is not a vested remainder
B has a contingent remainder in a fee simple absolute
Did O retain anything? YES, O has a REVERSION.
O “to A for ten years, then to B’s children and their heirs” (B’s children are alive)
 To A, to B’s children
 A has PP in estate for years
o future interest in someone other than the grantor YES
o that would become a present possessory estate, if ever, YES
o immediately YES
o upon the natural expiration of prior YES
o non-fee simple estates YES
o created simultaneously with it. YES
 Vested or contingent?
o No condition precedent; AND at the time the creation of interest was created its possible to identify
at least one person (YES)
 VESTED REMAINDER SUBJECT TO OPEN (bc it’s a group of persons)
 The children’s have a VRSTO in Fee Simple Absolute
 What if B had a child, C3 two years later, he can still get it
 If C4, 11 yrs after the conveyance; then too late, the door closes bc the deed was only 10yrs.
“O to A for ten years, then to B’s children and their heirs” (at time of conveyance B was childless)
 A has a PP Estate for Years
 B’s children has a contingent remainder
 Estate: B’s children have a CR in FSA
 O has reversion.
“O to A for life, then to A’s heirs and their heirs.”
 A PP in LF
 Apply remainder definition
o future interest in someone other than the grantor YES
o that would become a present possessory estate, if ever, YES
o immediately YES
o upon the natural expiration of prior YES
15



o non-fee simple estates YES
o created simultaneously with it. YES
Vested and Contingent (apply vested definition first)
o No condition precedent; AND at the time the creation of interest was created its possible to identify at
least one person (No) / A is still alive so you cannot identify heirs until someone dies.
Remainder is in an unascertained person
A’s heirs has a contingent remainder in FSA
O “to A upon A’s marriage to B”
 To A
 A has a future Interest
 Is it a Remainder?
o future interest in someone other than the grantor YES
o that would become a present possessory estate, if ever, YES
o immediately NO
o upon the natural expiration of prior NO
o non-fee simple estates NO
o created simultaneously with it. NO
 Executory Interest? YES
 Springing Executory Interest (grantor to grantee)
“O to A for life, but if A remarries, to B for life”
 To A; To B
 A present possessory interest in LE subject to a shifting executory interest.
 Does B have a remainder? NO
 a future interest in someone other than the grantor YES
 that would become a present possessory estate, if ever, YES
 immediately
 upon the natural expiration of prior NO
 non-fee simple estates NO
 created simultaneously with it. NO
o B gets it if A estate is cut short, not upon the immediate expiration.
o It’s a condition precedent.
 Does B have an executory interest? YES
 B has a Shifting Executory Interest in a LE (grantee to grantee)
 Last person we check for is “O” and O retains a reversion.
“O to A for life, then one year later, to B and his heirs”
 To A, To B
 A has a pp in LE
 What does B have? Apply Remainder definition.
 a future interest in someone other than the grantor YES
 that would become a present possessory estate, if ever, YES
 immediately NO (one year later B gets it)
 upon the natural expiration of prior YES
 non-fee simple estates YES
 created simultaneously with it. YES
16





NO REMAINDER
B have an executory interest? YES
o A Future Interest in Someone Other than the Grantor that is not a Remainder.
Springing Executory Interest (follows a certain period of time) / grantor to grantee
o During the one year gap O retains a reversion.
B has a springing executory interest in a fee simple absolute (and his heirs)
O has a reversion subject to a Springing Executive Interest
B. Rule in Shelley’s Case
a. If a single instrument (deed or will) creates a L.E. in a grantee and also creates a C.R. in that
grantee’s heir and the estates are both legal or both equitable, the remainder becomes a remainder
in the life estate holder.
i. (beneficiaryequitable interest/ if it’s given to you then you have a legal interest)
b. Few states have it while others have abolished it.
c. It’s a rule of LAW (imposed) not a rule of construction, we don’t look at what O “intended.”
d. EXAMPLE: O “to A for life, then to A’s heirs and their heirs.”
 First classify interests and estates at creation!
 to A; to A’s heirs
 A has a LE
 A’s heirs have a CR in FSA (no ascertainable person)
 Apply the Rule in Shelley’s case
o Single Instrument? YES
o Life estate in a grantee? YES
o C.R. in that grantee’s heirs? YES
o Both legal or both equitable? (BOTH LEGAL)
o The C.R. turns into a remainder in FSA; thus
o A has a LE and A has a remainder in FSA. (the heirs have nothing)
e. “to A for life, then to A’s heirs”
 Applying the Rule of Merger
o When 2 interests in the same parcel are held by the same person and the 2
interests are not separated by something indestructible, the interests are merged.
 After merger A has a pp in FSA.
“to A for life, then to B’s heirs”
 to A, to B’s heirs
 A has LE
 B has a C.R. (can’t indentify the heirs)
 Under Modern Interpretation B has a C.R. in FSA
 B’s heirs have the C.R. instead of A’s heirs
 Thus, the rule in Shelley’s case doesn’t apply.
O “to A for life, then to B for life, then to A’s heirs”
 A has pp LE
 B has a future interest
 B has an indefeasibly vested remainder in a LE
 A’s heirs have a future interest; C.R. in FSA
17



o Single Instrument? YES
o Life estate in a grantee? YES
o C.R. in that grantee’s heirs? YES
o Both legal or both equitable? (BOTH LEGAL)
A now has a LF and a remainder in FSA.
Now apply the rule of merger
B has an indefeasible VR in LE, B still keeps it!!! (MERGER DOES NOT APPLY)
f.
WAYS TO AVOID RULE IN SHELLEY’S CASE
i. create executory interest rather than CR
ii. Instead of “to A for life, then to A’s heirs”
iii. “to A for life, then 1 day later to A’s heirs”
iv. Make one of the interests equitable and the other one legal
v. “to A for life, then to T trustee for the benefit of A’s heirs”
vi. Don’t use grantee’s “heirs” as purchasers
vii. Instead of “to A for life, then to A’s heirs”
viii. “to A for life, then to A’s children”
ix. “to A for life, then to A’s descendants”
C. Doctrine of Worthier Title
a. If grantor conveys a life estate to a grantee with a contingent remainder in the grantor’s heirs, the
remainder is void and the grantor has a reversion
i. note does not apply to devices
ii. DWT only applies to conveyances
b. A rule of construction (not a rule of law); we will look at the grantor’s intent
c. Presumption is that O retains a Reversion (It’s a rebuttable presumption!!!)
d. EXAMPLE: O conveys, “to A for life, then to O’s heirs”
 To A, to O’s heirs
 A has a ppLE
 O has a C.R. in a FSA (bc heirs cannot be identified)
o LE in a grantee? YES
o C.R. in grantor’s heirs? YES
 O has a reversion in a FSA. O’s heirs have nothing.
D. Destructibility of Contingent Remainders
a. Unless a C.R. shall vest at or before the termination of all estates prior to it in possession, it shall
be destroyed.
b. Only applicable in some states.
c. EXAMPLE: O “to A for life, then if B graduates college, to B and his heirs.”
 To A; to B
 A  ppLE
 B has a C.R. in a FSA
 A had died and B has yet to graduate
o Apply the DCR definition:
 B has not graduated so his interest has not been vested (he hasn’t
graduated); thus, it is destroyed.
 O has a reversion and now has a FSA
18
o
o
If DCR does not apply in jurisdiction, B’s remainder is converted into a springing
executory interest.
On A’s death, Blackacre to O who holds fee simple subject to a springing E.I.
E. IN FLORIDA
a. Rule in Shelley’s case abolished. Any instrument purporting to create a life estate in a person with
a remainder in that person’s heirs shall be deemed to create a remainder in that person’s
descendants.
i. Rather then giving the remainder to the A, they give it to A’s descendants.
b. We don’t apply DWT in FL. Does not create or presumptively create a reversion.
F. Rule Against Perpetuities
a. Future Interests Vulnerable to RAP:
i. Executory Interests; Contingent Remainders; and any class gift (i.e., CR in a Class, E.I. in
a class, VRSTO, VRSTCD if a Class)
b. Concern is that the vulnerable interest could vest (or new member could join the class) beyond the
perpetuities period.
c. Perpetuities Period
i. Vulnerable Interests (E.I., C.R., or future interest in a Class)
ii. Must be sure the condition can’t be met and/or, if dealing with a class gift, that no one can
join the class after
iii. (Lives in being + 21 years + relevant periods of gestation)
iv. From the date the interest was created (either by conveyance or devise)
d. FL has a “wait and see” period for TRUSTS in RAP
e. This CL RAP still works in FL.
f. We measure these interests the moment it is created.
i. “O conveys” O is alive –when deed is transferred
ii. “O devises” by will –O is dead
g. Vulnerable interest does not violate RAP, if you can answer this question with a yes
i. Is it impossible for _____ more than 21 years after _____’s death?
1. 1st blank –meet condition and/or join the class
2. 2nd black –life in being at time interest was created
a. Try everyone that is relevant until you exhausted your search.
h. Life in Being? Validating Life?
i. (1) Grantor, if living
ii. (2) Purchasers [grantee] (in order in which they appear)
iii. (3) Relevant Intervening Generation, and
iv. (4) Anyone else mentioned as relevant in the document.
i. Key – CAVEAT on Validating Life
i. For a class to qualify as a validating life the class must be closed when the interest was
created. (at the point the interest is created)
EXAMPLE:
O devises “to A so long as the property is used for residential purposes, then to B”
 To A, To B
 A has a pp FSD subject to a shifting executory interest (O HAS A POSSIBILIY OF REVERTER, SO SINCE
O IS DEAD O’S SUCCESOR IN INTEREST CAN GET IT)
 B has shifting executory interest in a FSA
 Is it impossible for _____ more than 21 years after _____’s death? NO
19


1st  will Blackacre be used for residential purposes
2nd  after A’s death
o A’s successor in interest may continue to use it as a residence
o A does not work as a validating life
o B is NO as well.
o IT IS STRICKEN B CAN’T GET IT
O devices “to A for life, then to B’s children” (B has 1 child at the time of O’s death.)
 To A, To B’s children
 A pp LE
 B has a vested remainder subject to open in a FSA
 Is it impossible for _____ more than 21 years after _____’s death? NO
 1st  whether more people can join the class (B to have a child)
 2nd  (A’s)
 Can we use B’s children as a measuring life? NO because the class is open; B can have more children thus we
can’t use them as measuring life.
 Can we use B as a measuring life? YES
o Is it impossible for B to have a child more then 21 years after B’s death? YES
o The interest in B’s children is not stricken.
O devices “to A and his heirs provided that liquor is not sold on Blackacre, if liquor is sold, to B and his heirs”
 to A, to B
 A has a pp FSSCS subject to a shifting E.I.
 B has a Shifting E.I. in FSA
 Is it impossible for LIQUOR TO BE SOLD ON BLACKACRE more than 21 years after A’s death? NO
o A could die and kids could continue to use Blackacre as whatever they want
 Is it impossible for LIQUOR TO BE SOLD ON BLACKACRE more than 21 years after B’s death? NO
 Future Interest is going to be stricken, no life in being can make it impossible (B and is heirs get nothing)
 O retains a right of re-entry, O’s successor in interest get it
O conveys “to A for life, then if B graduates to B”
 A – pp LE
 B – CR in FSA
 Is it impossible for B to graduate more than 21 years after O’s death? NO, O can die and B could
graduate 30 yrs later
 Is it impossible for B to graduate more than 21 years after A’s death? NO
 Is it impossible for B to graduate more than 21 years after B’s death? YES
o Doesn’t violate the rules against perpetuities!
STEPS





Words of Purchase
Classify each interest
continue this process
determine which CL applies
Apply rules of perpetuities
O devises “to my wife Anne for life, then to our son Bill for life, but if Bill divorces, to Charles and his heirs”
20






To Anne; To Bill; to Charles
Anne  pp LE
Bill  future interest in a VRSCD in a LE (there’s a condition subsequent) subject to a shifting E.I.
Charles  future interest
o Is it a remainder? NO (no natural expiration of a prior non-fee simple estate)
o Shifting E.I. in FSA(estate)
Check CL Rules first [in the exam make sure you explain WHY?]
o Rule in Shelly’s Case
 If a single instrument (deed or will) creates a L.E. in a grantee and also creates a C.R. in that
grantee’s heir
 A’s heirs don’t have anything!
 Doesn’t apply (No contingent remainder and Grantee’s heirs are not purchasers)
o Doctrine of Worthier Title
 If grantor conveys a life estate to a grantee with a contingent remainder in the grantor’s heirs.
 NO, doesn’t apply (by devise, no CR, and Grantors heirs are not purchasers)
o Destructibility of Contingent Remainder
 Unless a C.R. shall vest at or before the termination of all estates prior to it in possession, it
shall be destroyed.
 There is no CR, this rule doesn’t apply
o Merger
 When there is one person with two interests in same parcel.
 Cannot be separate by something indestructible.
 Doesn’t apply (don’t have 2 interest held by same person)
Apply the Rule Against Perpetuities
o Vulnerable Interests (E.I., C.R., and F.I. in a class)
o Only Charles EI is vulnerable
o Is it impossible for Bill to divorce more than 21 years after ANNE’ death?
 NO
o Is it impossible for Bill to divorce more than 21 years after BILLS’ death?
 YES
 Charles get’s to keep his executory interests.
o Is it impossible for Bill to divorce more than 21 years after Charles’ death?
 NO
O conveys “Blackacre to Ana for life, then if Bill turns 35, to Bill.” (at the time of the conveyance Bill is 5 years old).
o A has ppLE
o Apply definition of remainder to B’s F.I.
o B has a remainder bc there’s no gab b/t A’s death and when B would get it.
o There is a condition precedent (Bill needs to turn 35)
o B has a C.R. (under modern interpretation it is presumed FSA)
o B’s interest is vulnerable to the rules against perpetuities (C.R.)
o Is it impossible for Bill to turn 35 more than 21 years after O’s death?
 No (not a good validating life)
o Is it impossible for Bill to turn 35 more than 21 years after A’s death?
 No (not a good validating life)
o Is it impossible for Bill to turn 35 more than 21 years after B’s death?
21



Yes (B work’s doesn’t violate the rule against perpetuity)
B keeps his CR in FSA
In the jurisdictions that doesn’t apply Destructibility of Contingent Remainder (FL still has a
DCR)
 O will have a reversion
 B will have a springing E.I. that vests once he reaches the age of 35
O conveys Blackacre as follows “to Ana for life, then if Bill’s children turn 35, to such of Bill’s children who turn 35.”
(at the time of the conveyance Bill has a child (Charles) who is 20 years old).
o To Ana, To Bill’s children
o A had ppLE
o Does B children have a remainder? YES
o B children have a C.R. (condition precedent B children need to turn 35)
o CR in a class
o CR in FSA (modern interpretation in FSA)
o B’s children is vulnerable to rules against perpetuities (bc it’s a C.R. & it’s a C.R. in a class)
o Is it impossible for a child of B to turn 35 more than 21 years after O’s death?
 No (not a good validating life)
o Is it impossible for a child of B to turn 35 more than 21 years after A’s death?
 No (she could die tomorrow, not a good validating life)
o Normally we test the next person but you can’t test a class unless it is closed at the time the
interest is created.
 B’s children cannot be tested because it’s an opening class.
 B can still have more children!!!
 If B was dead then it would be a closed class.
o Is it impossible for a child of B to turn 35 more than 21 years after B’s death?
 No, B could have another child tomorrow and the child will not turn 35 (not a good validating
life)
o Is it impossible for a child of B to turn 35 more than 21 years after Charles’s death?
 C doesn’t help bc B could have more children
 Would the analysis change if Charles was 36? NO. Though it is vested in Charles, we are not
concerned about Charles, we are concerned about Bill’s children. C.R. in a class is still
stricken.
 “All or Nothing Rule”  this applies in class gifts
o B’s children CR violates the RAP and must be stricken!!!
o Upon Ana’s death there’s a reversion in O.
O conveys “to Ana for life, then if Bill’s children turn 21, to such of Bill’s children who turn 21.”
o Is it impossible for a child of B to turn 21 more than 21 years after B’s death?
o Yes
o A timeline of 21 years is probably OK anything else will fail the RAP.
3. CONDOMINIUMS & COOPERATIVES
o
o
Condominiums
Owns an estate in land – real property interest
Owns undivided interest as a tenant in common in
common areas (pool, hallways, etc.)
o
o
Cooperatives
Coop owner owns shares in corporation that owns
the building (personal property [stock])
owns proprietary lease
22
o
o
o
individual loans
few internal controls
easier to resell
o
o
o
blanket loan
controls over prospective purchasers
“share” loans
4. MARITAL INTERESTS
o
o
o
Separate Property States
“Title states” or “CL states” (include FL)
Marriage doesn’t change title to property
Each spouse owns what he or she earns during
the marriage
o
o
o
o
Community Property States
Equal Partnership theory of marriage
Property owned by either spouse before the
marriage or received by on spouse during the
marriage by gift, descent, or devise is considered
separate property.
Income from separate property is considered
community property in some states and separate
property in others.
Anything done during marriage becomes
community property state. (both own it equally)
 Dower: life estate in 1/3 of real property in which husband was ever seized (exists in some jurisdictions)
o Replaced in most states with “spousal elective share”
o Usually 1.3 (Fla. 30%) of estate.
 Homestead: provides protection from creditors for principal residence
o Varies by state
o FL has very strong protective measures in its homestead statutes
o FL law uses the term “homestead” for different purposes:
 Art VII, § 6
 Real estate tax exemption for homestead.
 Art X, § 4
 Protection from forced sale
 Restrictions on lifetime transfers and devises
A. EASEMENTS
 a small interest in land (does not entitle holder to possess the land)
 right to use land or prohibit others from using land in a particular way
 YOU DON’T HAVE A POSSESSORY RIGHT
 Easements are such a small interest that it is not even considered an estate
 EXAMPLE: A owns Blackacre in FSA, B has the right to use to roadway on Blackacre
o B has an easement
a. Types of Easement:
1. Appurtenant v. In Gross
2. Affirmative v. Negative
3. Specific v. General
4. Exclusive v. Nonexclusive
23
Hypo:
A divides Blackacre (into 2 lots) and conveys north lot to B. North lot 1 acre B’s lot. South lot 1 acre A’s lot.
 A still has a FSA in South lot & owns an Easement ON THE NORTH LOT
 B owns FSA in North lot
 A’s easement is an appurtenant b/c it benefits the parcel to have access to the road in B’s parcel
 Increasing the value of parcel A bc now you can go through the highway through road
 A’s lot is dominant estate (benefits)
 B’s lot is servient
 A is an affirmative easement (doesn’t prevent B from doing anything it allows B to do something)
 A has a specific easement (limited to the driveway)
 A owns an appurtenant, affirmative, specific nonexclusive easement.
X wants right to use Y’s roadways to get to new highway
 X offers Y $10,000 to use the street to get the highway
 In the exchange Y will execute a deed and deliver it to X (Y is granting an estate through a deed so X could
use the driveway)
 X has a FSA in South lot and an easement in north lot
 Y has a FSA in North lot
 X’s easement is appurtenant
 X’s lot is dominant estate
 Y’s lot is a servient estate
 It’s an affirmative easement bc it didn’t prevent Y from doing something
 It’s a specific easement (bc it states that X may use the street only not anything else from Y’s lot)
 It’s nonexclusive b/c that is the presumption (others people can use the lot)
A conveys 100 acres of woodlands to B but A retains right to hunt and fish on B’s land.
 Conveyed to B in FSA but contained an easement
 In gross, b/c A is the only one benefited by this. The land is not benefited
b. Appurtenant or In Gross
o Appurtenant – the easement benefits/profits another piece of land
 dominant estate (or dominant tenement)
 benefits parcel
 Servient estate (or servient tenement)
 parcel that is burdened by the easement
o With an appurtenant you have both
o With in Gross you only have a servient estate.
o In Gross really benefit a person (the easement holder), the easement holder not land.
c. Affirmative v. Negative
 Affirmative Easement – gives the easement holder the right to perform an act on or use the
sevient estate owner’s land
o Profit type of affirmative easement allows the holder to enter the land and appropriate
something of value (carrots, timber, etc.)
 Negative Easement – gives the easement holder the right to prevent the servient easement owner
from doing something on his or her land
24
NEGATIVE EASEMENT
----- Ocean View
X may buy from Y a negative easement (Y has an ocean view)
 X might tell Y that they can’t build anything that will block the ocean view
Y may say sure, if you pay me money in return
X  holder of an easement of appurtenant (b/c the easement on Y’s lot benefits X’s lot)
X estate is DOMINANT (benefits from the easement)
Y estate is SERVIENT (b/c it is burdened by the easement)
X Lot




Y Lot
d. Specific or General
 Specific easement – gives the easement holder only the right to use particular part of the servient
land (geographically limited)
 General easement – does not specify where the rights may be exercised on the servient land
e. Exclusive or Non-Exclusive
 Exclusive easement– if that easement prohibits similar easements from existing concurrently (ex.
utility easement) – presumption against
 Nonexclusive easement – there could be other similar easements concurrently (could have other
persons that could use it as well)
o Presumption nonexclusive easement
f.
CREATION OF EASEMENTS: (CL rules)
a. Express (need to show intent, delivery, and acceptance)(interest in land needs to comply with the
Statute of Frauds)(needs to be in writing)
i.
Grant  deed: shows delivery and acceptance; or will
1. we determine the grantors intent by looking at the words used in the instrument
2. courts have certain presumptions when there’s ambiguous language, courts will
presume that the easement is Appurtenant vs. In Gross
3. An appurtenant easement passes automatically with the transfer of the dominant
estate (the one that benefits from the easement)
4. Though there’s a presumption you should be clear and specific in your transfer of
land, it’s better to not forget to include it in the deed.
ii.
Reservation  deed: conveyance (could be all the property or some)
1. if an owner conveys the land but reserves himself the right to use the land in some
way then it is a reservation
b. Implied (not included in the instrument, but it could be implied) (there must be a doc (deed) onto
which you can imply the easement)
i.
Strict necessity: 3 elements (need a deed of land where you can imply)
(1) land in common ownership;
(2) severed into two or more parcels;
(3) severance creates the strict need for the easement
Example: O owned two parcels. O deeds South Lot to A. O retained North Lot. A needs
access. (by strict necessity) (the deed failed to mention an easement but the parties must have
intended bc otherwise A would not be able to get out, the best way to do this is to include it in
25
the deed) (Ingross and Outgross this need to be included so you could be able to enter and exit
your property)
 easement that was implied bc there’s a strict necessity there is not other way of A
getting out
 A’s lot (dominant)
 O’s lot (servient)
 EASEMENT IMPLIED BY GRANT
O owned two parcels. O keeps the South lot and deeds North lot (the one with access) to A.
O retained the South lot. O needs access.
 strict necessity implied by RESERVATION (O simply forgot to include that
language in the deed when he gave it to A)
ii.
iii.
iv.
#1 servient
(parking lot)
Quasi-easement: (one owner owns both parcel and burns one parcel for the benefit of
another) (looks like an easement) (once you separate the property it becomes an
easement to the new owner)
(1) single owner burned one parcel for the benefit of another parcel,
(2) the benefit is reasonably necessary for the benefited parcel,
(3) the burden was apparent at severance, and
(4) the single owner transferred one parcel and retained the other.
 Schmidt v. Edger  the leasehold served as a severance so there was no quasieasement
Statutory
Estoppel
#2 dominant
(building)
Corbett v. Ruben Apply the 4 factors of quasi-easement. (YES all satisfied)
 Corbett suing Ruben; Corbett wants to remove easement on title
 Original owner attempted to create easement on Parcel #1 for the benefit of Parcel #2
 RULE : One owner of two parcels cannot create an easement between parcels
 RULE : look to intent of grantor to determine type of easement
Schmidt v. Eger
 Ditch (easement) created during lease period, but before actual transfer of property
 RULE : date of severance cannot be placed in the middle of a continuous possessory interest, but must instead be
placed at the point where the possessory interest first arose
o (date of lease, not date of transfer)
FL – Implied Easement by Strict Necessity
 CL and statutory easements defined and determined
 “The CL rule of an implied frant of a way of necessity is hereby recognized. Such an implied grant exists
where a person grants lands to which there is no accessible righ-of-way except over his or her land, or retains
land which is inaccessible except over the land which the person conveys. In such instances right-of-way is
presumed to have been granted or reserved”
26

o by grant
o by reservation
“you have a parcel and they’re blocking you off, you still have a right under FL law to pass by their property”
c. Prescription
i.
If the use has continued for such a long time period = easement by prescription
ii.
Two Theories:
1. Lost Grant – fiction that deed once existed then was lost
a. The Claimant has to show that:
 Used (manner in which it is claimed)
 Claim of Right (use it as if it you had a right to use it)
 Open and Notorious Manner
 Continuous
 Required Time (10-20 years in the U.S.)
 with Acquiescence of owner of Servient Estate (NO
PERMISSION from the owner)
 If Permission is given then it blocks the prescription!
2. Adverse Use
 Used
 Claim of Right
 Open and Notorious Manner
 Continuous
 Required Time
 use was Adverse to interests of owner of Servient estate
i. How long must use continue?
1. varies by jurisdiction; can tack time
a. privity—notafter ouster or abandonement
b. FL Suwanee River Water Management Dist. v.
Price says 20 years.
2. Exclusivity for prescriptive easement?
a. Not required in White, but may be re’q in other
states
3. Policy?
a. productive use of land
White v. Ruth R. Millington Living Trust  although π was not aware that ∆ was using the road she had constructive
notice b/c she knew that the wire she had placed on the streets to block usage was removed, witnessed that observed
them, the fact that the street remained in a good condition; thus, all the elements were met. ∆ use of the road was
continuous b/c it was consistent with the purpose of the use
State Ex Rel Haman v. Fox  Idaho applies adverse use (5yrs), but even if you meet all the elements, the general
public cannot acquire easement by prescription
 In FL; the public CAN, but 20 years and use must be exclusive of the owner or inconsistent with owner’s use
(presumption that use is permissive not adverse that claimant would have to overcome)
 Implied dedication: Need convincing evidence of INTENT to dedicate
o In FL private owner must have expressed present intention to appropriate his lands for public use
 Custom: Time immemorial (can’t recall ; uninterrupted
27
here we know when it started and it wasn’t uninterrupted b/c they had people come in and kick people
off the beach
o In FL use is ancient, without interruption free from dispute, specific parcel
Public Trust Doctrine: State holds certain resources “in trust” for public and private exists subject to public
use
o FL only portion of beach below the mean high water mark is held in public trust
o

Fontainebleau Hotel Corp.  no express right to light and air, you cannot get a negative easement by prescription!!!
You could pay for a negative easement, but you cannot get it by prescription.
d. (easement could also be implied by estoppel or statutorily created)
e. TRANSFERABILITY OF EASEMENTS
i.
An easement appurtenant is transferable by deed, by will, by intestacy
1. appurtenant easement is presumed to transfer automatically with the transfer of a
dominant estate
2. Protects the grantee of the dominant estate from the grantor’s inadvertent failure
to include a separate grant of the easement with the grant of the dominant estate
ii.
TRADITIONAL RULE: easement in gross is not assignable, die with the holder
iii.
MODERN THEORY: easement in gross IS assignable if:
1. parties intended to make the easement assignable OR it is a commercial easement
2. Miller v. Lutheran Conference and Camp Association  Bathing rights
transferred to Lutheran Ass'n w/o compliance of other easement holder. Even if
the easement was assignable and divisible, they have to act as one party. An
easement in gross is transferrable not divisible.
f.
TERMINATION
11 WAYS TO TERMINATE AN EASEMENT:
1. express easement with termination date would expire at that termination date
2. easement implied by strict necessity will end when need ends
3. easement is released to owner of servient estate
4. easement ends by merger when title to both servient and dominant estate comes into same
hands
5. easement ends by prescription (servient tenement blocks the easement area during the
prescriptive period
6. easement terminates if abandoned
7. easement extinguished by estoppel
8. easement ends by destruction of building that serves as the dominant or servient estate
9. easement ends if holder of the dominant estate misuses his easement in such a way that it is
impossible for a court to enjoin the misuse
 Y creating a road that would connect to X’s road and as a result it would be a
misuse of the property
10. easement ends if servient estate conveyed to a bona fide purchaser without (actual,
constructive/record, or inquiry) notice.
11. easement ends if servient estate is condemned by the government
Lindsey v. Clark
 easement on deed for passage to South side; actual use was path on North side
28
B. LICENSES
a. Similar to an easement, permission to use the property
b. General Rule—the permission can be withdrawn by the licensor/licensee at any time
i. Mosher v. Cook United, Inc.  3 EXCEPTIONS:
1. Licensee must have reasonable time to remove himself and his effects
2. A license coupled with an interest is irrevocable during the term of the interest
3. Where licensee expended sums upon reasonable reliance of licensor’s representations
regarding duration of the license (ESTOPPEL theory)
a. not terminated per se
ii. Linro  terminology is not essentially determinable lease requires “sole and exclusive
dominion and control over the space”
iii. Stoner v. Zucker  Estoppel exception to revocation at will. Stoner relied on the license to
use the ditch and spend a lot of money relying on these representations it turned into an
implied easement created by ESTOPPEL. Thus, to be terminated it need to be terminated as
an easement.
C. COVENANTS
a. Involve private restrictions/ control of land
i. EX. shopping centers
b. The run with the land at law or equity (easier)
i. The courts of law are more strict then equity courts
ii. If it runs with the land at law you could get money remedies
iii. If it runs with the land by equity you can get specific performance or an injunction
c. Two types:
i. Real Covenant (WITHN—can get money damages)  enforceable by law courts (runs
with the land at LAW)
1. Writing: Covenant must be enforceable:
 not unreasonable as a matter of public policy,
 not too vague, and
 in writing that complies with statute of frauds (writing, signed by the party to be
charged)
2. The original covenanting parties must intend that the covenant run with the land.
(look at the language used in the instrument such as “successors” or “and his heirs”)
3. The covenant must “touch and concern” the land.
a. affect the relationship of the parties as land owners
b. increase the use/utility/value of the land (increase/decrease)
c. CAVAET (if benefit only in gross it doesn’t touch and concern the land)
4. Must have horizontal and vertical Privity
a. horizontal  Privity of estate b/t original covenanting parties
b. vertical  Privity b/t such parties of their perspective successors
5. Purchaser of burdened property must have notice of covenant
a. (actual, constructive/record, or inquiry)
ii. Equitable Servitude (reciprocal negative easement)  enforceable by equity (easier to meet)
CANNOT GET MONEY DAMAGES
1. Writing: Covenant must be enforceable:
 not unreasonable as a matter of public policy,
 not too vague, and
29
(1) in writing that complies with statute of frauds; or (2) the claiming party can
show estoppel; or (3) an implied covenant is found from a common grantor with a
common scheme
2. The original covenanting parties must intend that the covenant run with the land.
(look at the language successor, and his heirs)
3. The covenant must “touch and concern” the land.
4. Purchaser of burdened property must have notice of covenant
 Privity is not a requirement
 SOF is not a requirement

Sanborn v. McLean
 Where the owner of two or more related lots conveys one with restrictions for the benefit of the related
lot(s), the restrictions are deemed to apply also to the retained lot(s).
 common scheme from a common grantor
 plaque must be recorded, if a plaque is recorded you have notice
d. Covenantor/Covenantee
i. Covenantor made promise –has the burden
ii. Covenantee benefits from the promise –has the benefit of the covenant
Mchuron v. Grand Teton Lodge Company
 equitable servitude
 covenant must be:
o not unreasonable as a matter of public policy,
o not too vague, and
o (1) in writing that complies with statute of frauds; or (2) the claiming party can show estoppel;
or (3) an implied covenant is found from a common grantor with a common scheme
 vagueness  ct. looks at the fact and circumstances to find some reasonableness behind it they can
extract what the party’s intent was
 ct. implied a reasonableness into it
 they showed GOOD FAITH b/c they followed precedent in only allowing a certain
hotizontal
Covenantee ------------------------------Covenator
vertical
Y (successor to
benefit)
vertical
X (successor to burden)
HORIZONTAL PRIVITY (only need one/can have both)
 Between the original covenanting parties:
o Mutual (continuing simultaneous interest in the land covered by the covenant);
OR
 landlord/tenant
30
mortgagor/mortgagee
co-tenants
easement relationship
 ex. X (dominant) has an easement, Y is the servient estate
o X says can I paint over the highway with brick, Y says no
problem but you must pay the cost of maintenance. The
make a promise.
o In addition to the covenant, the original covenanting
parties had a continuing simultaneous interest in the land
covered by the covenant.
Instantaneous Privity (grantor/grantee)
 conveyance from one [original covenanting] party to the other at the time
the covenant is made.
 One of the original covenanting parties obtained his or her land from the
other covenanting party and at the time entered into a covenant
 sale, gift, or death
 see question (1) pg. 376
o O conveyed part of his land to A
o 6 days later A enters covenant to construct a dam
o A transfers land to X
o Is X liable for damages to O for breach of the covenant
made by A?
 NO, there was no horizontal Privity b/t original
covenanting parties



o
Horizontal and Vertical Privity
Vertical Privity – between the original party and the respective successors in title. (Pg 375)
If benefit, the successor must have gotten an estate in land.
If burden, successor must have gotten ENTIRE estate in land (time dimension)
A (Covenantor = Burdened)
O (Covenantee = Benefitted)
B (successor to burden)
X (successor to benefit)
O to X for life (yes, x can enforce because he received ANY estate in land)
Equitable servitude DOES NOT REQUIRE V/H privity.
Elements of a real covenant:
(1) Must be enforceable
unreasonable as a matter of public policy?
not too vague
statute of frauds writing
(2) Must intend that the covenant run with the land
(3) Covenant must “touch and concern” the land
(4) Horizontal and Vertical privity
31
(5) Purchaser of burdened property must have notice of the covenant.
Horizontal Privity:
(1) Mutual
(2) Instantaneous
WAYS TO TERMINATE A COVENANT:
(1) By expiration of the specific duration in covenant.
(2) Released by the benefitted party.
(3) Merger of the benefitted and burdened parties.
(4) Terminates by prescription (required time period of adverse use)
(5) Abandoned
-convenantee acquiesces in its violation
-habitual and substantially violated
-intent to abandon
(6) Terminates by estoppel
(7) Terminates if burdened property conveyed to a bona fide purchaser without (actual/constructive/inquiry)
notice.
(8) Property is condemned by govt.
(9) DOCTRINE OF CHANGED CONDITIONS
ZONING OR PRIVATE COVENANT?
-Zoning ordinance cannot override private restrictive covenant
What if conflict? Ordinance could be raised as evidence of changed circumstances to defeat covenant.
ABANDONMENT (Pg 406)
For community violations to constitute an abandonment, they must be so general as to frustrate the original
purpose.
Generally, landowners may abandon restrictions for some purposes, but not for others.
D. RECORDING SYSTEMS
a. Under CL  “first in time, first in right”
b. First to take title requiring: intent, delivery, and acceptance.
c. To trump the CL rule, a subsequent purchaser has to meet the exact requirements of the applicable
recording statute.
i. Determine first who won under the CL, then determine whether the other person could trump
the other individual.
d. Recording an instrument puts the world on CONSTRUCTIVE NOTICE of its existence and contents.
e. TWO INDEX SYSTEMS: (Miami-Dade County has a grantor-grantee Index system)
i. Grantor/grantee Index System (in reality Title Insurance Companies do this)
1. Need to go backwards in time in the grantee index
 start with today and go backwards
2. Then go forward in time in the grantor index
 who did the gov’t give this land to present day
ii. Tract system easier b/c it runs with the land
32
f.
COMMON LAW RULE:
i. As between successive grantees, first in time prevails
1. Priority in time.
2. ex. O to A; O to B. Under cl A prevails; if A did not record O still has apparent title.
g. THREE TYPES OF RECORDING STATUTE:
i. Race  1st purchaser to record prevails
ii. Notice  A subsequent bona fide (without notice, good faith, at the time of conveyance)
purchaser prevails over the previous
1. actual (someone tells you), constructive (recorded), inquiry (red flag, some lives
there, surrounding lots; then ask)
iii. Race-Notice  A subsequent purchaser must be without notice of a prior instrument and
record first
1. Anderson v. Anderson  For protection under the recording act as a good faith
purchaser for value, the purchaser must be for a valuable and nominal
consideration.
HYPO NOTICE:
 to A (A doesn’t record)
 to B (B is without notice $)
 A Records
- A recorded after the time of conveyance.
- B did not have notice.
- In a NOTICE jurisdiction, B will win b/c when he purchased the land he was a subsequent bona fide purchaser that
lacked knowledge of A’s purchase
 O to A (A doesn’t record)
 O to B (B had notice $)
 B Records
- A wins under CL
- In a notice jurisdiction B did not meet the requirement of the notice jurisdiction b/c he had notice.
- A prevails.
 O to A (A doesn’t record)
 O to B (B did not have notice $)
 A records
- A wins CL
- B was a subsequent purchase and he did not have notice at the time of the conveyance, satisfying the requirement
of the notice jurisdiction.
- B prevails.
HYPO RACE-NOTICE:
 O to A (A doesn’t record)
 O to B (B is without notice $)
 A records
 B records
- CL A prevails “first in time, first in right”
- B is a subsequent purchaser that did not have notice at the time of the conveyance, but he did not record first.
33
- A prevails b/c B did meet the requirements of the recording statute (under CL A prevails b/c first in time
prevails).
- The burden is on B to protect himself! It’s not so much on what A does.
 O to A (A doesn’t record)
 O to B (B had notice $)
 B Records
- A wins under CL
- B is subsequent purchaser who had notice
- B did not meet all the elements of the race notice jurisdiction
 O to A (A doesn’t record)
 O to B (by gift no notice)
 B records
- If it’s a gift B is not a subsequent purchaser and will not meet the requirements of race/notice statute.
HYPO RACE: Pg. 468
 O to A (A doesn’t record)
 O to B (B had notice $)
 B Records
- A wins under CL
- B prevails b/c in a race jurisdiction the person who records first prevails
 O to A (A doesn’t record)
 O to B (B had notice $)
 A records
- A wins CL
- B did not meet the requirement of the race statute b/c he failed to record first.
- A continues to prevail.
SEE PAGE 470 HYPOS!!!
 O to A (A as a gift)
 A Records
 O to B (B purchaser $)
- Cl A prevails
- B was a subsequent purchaser but he did not purchase it bona fide b/c he had constructive notice that A owned
the property.
- B does meet the requirements of notice statute.
Florida Statute is a Notice Jurisdiction § 659.01
California is a Race-Notice Jurisdiction § 1214
Texas is a Notice Jurisdiction
E. SHELTER RULE
a. If a person takes from a bona fide purchaser* who is protected by the recording statute, that person has
the same rights the bona fide purchaser had.
b. Bona fide purchaser is a person who gives valuable consideration and has no notice of the prior
conveyance.
34
c. Shelter rule protects the bona fide purchaser by allowing the bona fide purchaser to convey property to
a third party. Without shelter rule, a bona fide purchaser’s ability to transfer property would be too
limited.
NOTICE
 to A(A doesn’t record)
 to B (B is without notice)
 A records
o A wins under CL
o B subsequent bona fide purchaser so he prevails he fits the requirement of the recording statute.
 B to X
o Cl A prevails first in time, first in right
o X has notice and X is a subsequent bona fide purchaser so under a notice jurisdiction X would not
prevail
o The Shelter Rule protects X b/c X was a person who took from a bona fide purchaser.




O to A (A doesn’t record)
O to B (B is without notice)
B to X
O to C (C is without notice)
o CL A prevails, first in time, first in right
o B was a bona fide purchaser because he gave valid consideration and he had no notice
o C was a bona fide purchaser who met the requirement of the recording statute protecting C
o If X purchased from B, X would prevail over A under the Shelter Rule BUT X would not prevail over
C b/c B would not prevail over C.
F. WILD DEED
a. A wild deed is a deed which is not in the claim of title
b. Deemed unrecorded
c. Otherwise would make the entire recording system in a name-index state unworkable
i. Sabo v. Horvath In a grantor-grantee index system of recording a “wild deed” does not
serve as constructive notice to a subsequent purchaser who duly records.
ii. Example: Assume N(who had good title traced back from Gov conveyed to O in 1999.
1. Notice Jurisdiction: Grantor-grantee index (most jurisdiction)
2. O to A (A doesn’t record) 2002
3. O to B (B is without notice $) 2003 outside of the “chain of title”/not RECORDED
4. B to X (X records his B to X deed) 2005
5. O to C (C is without actual notice $) 2016
 2016 --- 1999 --- 2016 search in the grantor-grantee index
 When we try to find if O has conveyed a legal interest we will not
find that O conveyed his interest.
 O to B we will not find; thus, we would not find the conveyance from
B to X
 Thus, C does not have constructive/record notice.
 X should have asked B to record to ensure himself before buying.
G. ESTOPPEL BY DEED—AFTER ACQUIRED TITLE
35
a. If a grantor by warranty deed purports to convey property he doesn’t own and subsequently Grantor
obtains that title, Grantor cannot deny the grantee’s title.
I.
DEEDS
 Adverse possession you will not have a deed
 JT with right of survivorship there’s no deed as well
A. Title to Transfer by DEED:
 Intent
 Delivery
 Acceptance
B. Valid Deed Requirements:
 Grantor’s name
 Grantee’s name
 Words of conveyance
 Description of land (Street address is not a legal description; need something like Lot 3)
 Grantor’s signature (In Fl. you need at least 2 witnesses)
 The amount in consideration
 Covenants of title
 Recitals of existing mortgages, easements, & restrictions on property
 Acknowledgment clause
C. Description of Land
a. Transfer of title occurs only if the deed provides a proper description of the land being conveyed
b. Three general ways:
i. metes & bounds
ii. government survey
iii. plat
D. Type of Deed Based on Covenants:
a. General Warranty Deed
i. Contains all 6 covenants, seller promises that the title is free from defects not listed in the deed
1. Wilcox v. Pioneer Homes, Inc  the existence of a zoning ordinance on the use of real
property is not an encumbrance rendering the title to the real property unmarketable,
HOWEVER an existing violation of such an ordinance is an encumbrance within the
meaning of a warranty against encumbrances.
b. Special Warranty Deed
i. Contains all 6 covenants but limited to defects that arose during Seller’s ownership
c. Quitclaim Deed
i. Contains no covenants of title, grantor simply conveys whatever interest the grantor has in the
property
E. COVENANTS OF TITLE (6): (pg. 543)
[Present covenant s/f starts running right away]
[Future covenant s/f doesn’t start running after the breach]
 Covenant of Seisen  holds the legal title
 Covenant of Right to Covey  has authority to convey
36




Covenants Against Encumbrances  land not burdened by any mortgages, liens, or similar
encumbrances
Covenant of Quiet Enjoyment  buyer will not be evicted by someone with paramount title to grantor
Covenant of Warranty  defend against lawful claims by someone’s assertion of paramount title
Covenant of Further Assurance  provide further assurances (papers or documents) grantee might
need
F. Delivery of a Deed
 Presumption of Delivery when:
1. Deed found within Grantee; or
2. Deed was recorded.
 Presumption can be rebutted by evidence to the contrary.
 Chandler v. Chandler  For a deed to be sufficient, the delivery must be so effectual as to
deprive the grantor of the right to revoke it. J.W. possessed the requisite intent to
relinquish control over the deed when he deposited it with the bank and instructed its
personnel to deliver it to J.P. Chandler upon the event of the grantor’s death.
G. Purchase contract to closing
a. Grantor may limit scope of warranty against encumbrances but only to those exceptions to marketable
title in purchase contract.
b. Under purchase contract Seller is suppose to deliver marketable title at closing
c. If there are encumbrances not in the purchase contract or other problems making the title non
marketable then the buyer can claim there is a breach of marketable title in contract and get out of the
contract.
i. Marketable Title  refers to the condition of the seller’s title not the condition of the
property
1. Title need not be perfect—it needs only to be marketable at closing
2. What a reasonable prudent purchaser would accept –would allow buyer to resell
H. MERGER
a. Purchase contract merges with deed granting title.
b. Buyers interest in the contract merges with his interest in the deed (really it is more waiver than
merger)
c. Under merger theory, by accepting the deed, the buyer waives any claims under the contract
d. The “K” merges into the deed and the deed is the final act of the a parties expressing the terms
e. If merger applies, buyer can NO LONGER sue under promises in the contract of sale that are not in
the deed.
i. Buyer must sue on warranties in the deed.
f. But – Merger is product of intent
g. Contract merges into deed b/c of presumption that the parties wanted to close their relationship.
h. If intended obligation not to be extinguished by closing –labeled as collateral obligation
i. American National Self Storage, Inc v. Lopez-Aguiar Collateral agreements do not merge.
Covenants usually included in the deed regarding covenants of quality of title –merge. In this
case, the sellers agreement that water, sewer, and electrical service were presently available in
the property line is not a condition that is usually indicated in a deed, related to the condition
37
of the title to property, or satisfied by the execution and delivery of the deed. Therefore, the
warranty in Americans contract was not merged in an extinguished by the deed and the t/c
erred in in granting summary judgment for the seller.
I. DOCTRINE OF EQUITABLE CONVERSION
 Under the doctrine of equitable conversion, after the contract of sale is signed by the parties, equity
treats the buyer as the equity owner (equity regards as done that which ought to be done).
o So the risk of loss is on the buyer (equity owner) once contract is executed
 Some states have changed that somewhat harsh rule and only hold buyer for loss after buyer
obtains possession or title.
o FL however isin’t one of those states.
o In FL in time b/t the execution of the contract and the closing, the risk of loss is one the Buyer.
PURCHASE -------------------OJO----------------CLOSING OF THE DEAL
II.
LANDLORD/TENANT
a. Oral leases cannot exceed ONE year per Statue of Fraud [depends on jurisdiction]
b. Jurisdictions vary as to when it starts. At the signing or move in date.
c. Writing for agreements not to be performed within one year of “the making thereof.”
i. Gee v. Nieberg  A lease agreement under the state of fraud must extend for one year or less,
be in writing, and cannot be modified or varied by a subsequent oral agreement. Oral
agreements can rescind a written lease required by the s/f to be in writing and is within the
statute, unless the unexpired term of the lease is less than that required by the statute to be in
writing. Because the lease was written and the unexpired term was less than that required by
the statute of frauds to be in writing, the lease was terminated by the subsequent executory
oral agreement.
1. rescission= termination
2. modification= change in terms but agreement continues
d. LEASES ARE CLASSIFIED BY DURATION:
i. Tenancy for a Fixed Term (Estate for Years)/ (EXPRESSLY CREATED)
1. Computable period; certainty of duration; death of L or T doesn’t end lease;
terminates automatically so no notice needed
ii. Periodic Tenancy (EXPRESSLY CREATED)
1. Lease for identical periods (e.g., month to month) which constitutes for successive
periods until L or T gives proper notice to another
a. If notice NOT given it automatically extends to another period
iii. Tenancy at Will (EXPRESS OR INFERRED)
1. No period of duration; terminates at will of either party (modern statutes require some
notice)
iv. Tenancy at Sufferance—Holdover (EXPRESS OR INFERRED)
1. Results when tenant was originally in lawful possession but remained in possession
after lease expired
a. L could bring action to evict you or elect to extend for another term
e. Hannah v. Dusch  (holdover tenant case) L is not required (has no duty) to deliver actual possession
of property only legal possession is required in real estate leases when no express covenant is found in
the lease.
 American Rule  L only required to give Legal Right to possession
38
L not an insurer against wrongful acts of 3rd, T is responsible if after possession T is
disturbed by a trespasser.
o There was already an eviction statute remedy for T
o T didn’t require express covenant in lease about “actual physical” possession
o T owns an Estate in Land (a lease is an estate –nonfreehold—but still an estate with
benefits and burdens)
English Rule  L required to deliver actual legal right
o L is in a better position to know whether a previous tenant is likely to holdover and protect
against it, and because of this, the landlord is the one who would be required to testify on
such matters in legal proceedings.
o


What could tenants do to discourage holdovers?
o Include a clause in the lease with a penalty for holding over

Damages for T if express covenant to deliver actual possession is breached?
o Damages = Fair Market Value (FMV) of Rent – Rent Stipulated in lease (+ special damages; e.g.
moving cost, storage cost)
 $200/mo = $1200-$1000/mo= can collect $200 if no possession given
o Designed to give T benefit of his good bargain.
o Special damages are things that could have reasonably been foreseeable.
o Could collect lost profit only if its foreseeable, this is dif. to prove.

Tension in L/T law b/t treating a lease as a Conveyance or a Contract
o CL once viewed leases purely under property law
o Currently it’s treated as a conveyance and a contract
o Conveyance
 views covenants (promises) as independent of each other
 L promises to keep premises in repair are independent of the T promises to pay rent
 If L does not repair when required, T could collect damages, but is required to continue to pay
rent.
o Contract
 Covenants are dependent of each other

Covenant (duty) of Delivery of Possession
o American & England rules (see above)

Covenant (duty) of Quiet Enjoyment (continuing possession)
o Express or implied
o Breached when tenant is evicted by the landlord, by someone acting as a landlord’s authority, or by
someone asserting paramount title.
o ACTUAL EVICTION:
 Camatron Sewing Machine, Inc. v. F.M. Ring Associates, Inc.,  actual partial eviction, was
not a de minimus eviction. Absent a reservation to the landlord in the conveyance of the land,
the tenant has the sole and exclusive right to undisturbed possession during the term of the
lease and the landlord has no right to take possession of a part of the demise premises to the
exclusion of the tenant.
 Temporary eviction for renovations is permissive.
39

o

Smith v. McEnamy  actual partial eviction justified a total abatement of rent by T until
encroachment removed. Followed in SOME states! More states lean towards apportionment.
 Apportionment:
o T leased space 1000 sp. feet
o Assume $1000/mo
 L blocks 250 sq. feet
 Should T pay $750/mo (the ¾ not blocked) or should T’s rent be
suspended until blockage removed?
 Non-apportionment (i.e., total suspension) is deterrent.
 Even apportionment will not make the T hold b/c T may need the
1000 sq. feet and could sue L for damages
o Few states allow for apportionment if its de minimus.
CONSTRUCTIVE EVICTION:
 Occurs when landlord breaches a duty to the tenant.
 4 elements—T must prove:
1. L breached a duty/covenant
2. Breach was substantial (grave and permanent nature)
3. T gave notice to L
4. T vacated within a reasonable time

Automobile Supply Co. v. Scene-in-Action Corp.,  L breached a duty by failing to
provide heat for them during the winter months under the lease; breach was substantial &
permanent in nature b/c the lack of heat deprive T of the longer beneficial enjoyment of
the premises in accordance with the terms of the lease; T gave notice to L; however, T
presented no evidence that it vacated within a reasonable time & T has the burden on these
elements.

Net Realty Holding Trust v. Nelson,  (mall, miniature golf case) L not liable for
unauthorized acts by 3rd party strangers. A disturbance or entry by a mere intruder is not
sufficient to constitute a breach of covenant of quiet enjoyment. Landlord only has an
obligation to protect its tenants from evictions & disturbances caused by himself or
someone with paramount title.

Special circumstances may dictate that a landlord does have such a duty. Blackett v.
Olanoff ct. allowed a constructive eviction against L. If other tenants are causing issues,
L knew or should have known that T (cocktail lounge) would offend prior residents; and L
had the right to control the problem (lease provision had noise restrcitions).
EVICTION
o Conveyance theory
o Independent Covenants
o Exceptions:
 T does not pay rent if evited/denied possession
 Actual partial eviction  rent abated/suspended (few states apportion)
 Actual total eviction no longer need to pay rent
 Constructive eviction
40

Damages for T where ACTUAL TOTAL eviction?
o Damages= FMV Rent for remainder of lease – Rent stipulated in lease for rent of lease (+any special
damages)
o $200= $1000/mo (FMV) - $800/mo (rent)
o 10 months left on lease you would collect $2000

Tenant does not have to continue to pay rent:
o If he is not given possession
o If there’s an eviction
CONDITION OF PREMISES
 Traditional Approach:
o Landlord’s Duty—“Caveat Emptor”
 Tenant takes the premises “as is” & landlord had no duty to repair.
 Exceptions:
1. short-term leases of furnished dwellings;
2. leases of buildings under construction;
3. L fraudulently misrepresents or conceals condition of property; AND
4. Common areas
 L under no obligation to warrant premises are fit for anything
 Lease as conveyance—T has estate in Land
 Originally primarily agrarian—land itself
 “men were men”
 Men could inspect land
IMPLIED WARRANTY OF HABITABILITY
 Covenant (duty) of Delivery Possession
 Covenant (duty) of Quiet Enjoyment
 CL Caveat Emptor generally applies to commercial leases; virtually all states have rejected its application to
residential property.
o In those jurisdictions a warranty of habitability is implied in residential leases.
o Waiver to the implied warranty of habitability is NOT allowed!!!
o Wade v. Jobe  Modern leases are usually for use of structures, no equal bargaining power, follows
trends in consumer protections laws, products liability, tort laws. A minor violation of a housing code
is not a violation L only needs to maintain “bare living requirement.” Codes can be enforced through
state and local employees. However, citizen is on the premises and is aware of problems so he needs to
inform the state and local employees of the issue.
 Elements for breach of implied warranty of Habitability:
1. Premises not in habitable condition
a. Substantially violate of Housing Code or threatening the health and
safety of the T
2. L must have notice of the problem
a. If at outset, L knew or should have known
b. If after T had possession, L must have actual notice
3. L must have reasonable time after notice to repair
41

Notice that T is not required to leave, this is dif. then constructive
eviction.
Remedies
o T can continue to pay rent & sue L for reimbursement for excess rent
o T can withhold rent (this is incentive for L to repair)
o DAMAGES:
 Percentage Diminution approach  reflects how much T enjoyment of the possession of the
property has been reduce by the L’s breach
 How much should the rent be reduced (bring in an expert to determine this)?
o Rat infestation -10%
o No hot water -40%
 t/c reviews the materiality of the particular defects & the length of time such defects have
existed
 Narrow and Broad Damages Formula:
o Narrow Damages (Contract Rent – FMV in defective condition) = $$$
 Applies only when the defect occurs AFTER you signed the lease!
 $500 rent on lease - $300 value with defects = $200
(can offset rent obligation of $500 to $200)
o Broad Damages  (FMV of the premises as Warranted – FMV in defective condition) =
$$$
 $500 as if it was up to code - $300 value with defects = $200
(If rent
was $300, then reduce by $200 damages= $100)
 Davidow v. Inwood North Professional Group (outlier case)  There is an implied warranty of suitability
by the landlord in a commercial lease that the premises are suitable for their intended purposes, in this case a
medical office.
o If there’s no implied warranty of suitability you could raise CONSTRUCTIVE EVICTION for nonpayment.
o You can waive the warranty of suitability in commercial leases b/c you can negotiate.

ASSIGNMENTS & SUBLEASES
 What happens when a T transfers (or attempts to transfer) part or all of his interest to a 3 rd party?
 Need to determine whether the relationship b/t the original T and the 3 rd party is characterized as an
assignment or sublease.
o ASSIGNMENT  when T transfers the right of possession for duration of term left on lease
 lessee transfers his entire estate without reserving a reversionary interest to himself and a
privity of estate is immediately created b/t his transferee and the original lessor.
o SUBLEASE when T transfers anything less than entire remaining duration on lease
 Dayenian v. American National Bank and Trust Company of Chicago  π transferred the entire remainder of
her estate and did not retain any reversionary interest. The doc. Stated she conveyed “all the Lessee’s right,
title and interest in and to the within lease from and after Dec. 1, 1978.” Upon this transfer, a privity of estate
was immediately created b/t W. Carlton and the Monticello Realty Corp. Thus, leaving π with no interest in the
estate, and thus an assignment was created.
 Assignment:
o Lease Term 1/1/15 – 12/31/15
42




o T gives up possession to 3rd party from June 1st till the leave is over
Sublease:
o Lease Term 1/1/15 – 12/31/15
o T gives up possession to 3rd party from June 1st till August 15th (summer) and T gets it back after the
summer until the lease is over
Privity of Contract
o L&T
o T&A
o T&S
Privity of Estate
o An assignee is bound by all real covenants including the covenant to pay rent.
o L & T (until T no longer has right to poss.)
o L & A (once A obtains right to poss.)
o L & S not in Privity of contract or in Privity of estate
Who can the L sue if assignee/sublessee is not paying rent?
o Both assignee and original owner can be sued because of Privity of contract/estate
o L cannot sue the sublessee, but he can sue the original tenant (L can evict sublessee form the apt.)
L/T LEASE
 What if lease does not contain a clause regarding assignments & sublease?
o General Rule  Absent a restrictive clause—T may assign or sublease.
(Free Alienability of Property)
o Restrictions are restrictive construed.
 Rowe v. Great Atlantic & Pacific Tea Co., Inc  implied covenants on assignments are almost never found. If
a lease is silent you may assign or sublease. A percentage clause in a lease is sometimes a sign of an implied
agreement that limit’s the lessee’s power to assign the lease; however, this varies considering the surrounding
circumstances, the nature of the business conducted upon, and the identities and expectations of the parties.
Although this case contained a % clause, it cannot be said that the lease was entered into in sole reliance upon
the skill, expertise, and reputation of A&P, and thus there is no reason to find an implied covenant limiting the
lessee’s right to assign the lease.

Could include an Express Provision (Julian v. Christopher):
o Silent Consent Clause  No assignment or sublease without L’s prior express written consent.
 Doesn’t say how or when L can deny the consent. No standard included.
 CL: Absent standard in consent clause, L can arbitrarily withhold consent.
 MODERN TREND: L may only withhold if he has a commercially reasonable objection for
withholding it.
 (e.g., financial instability of proposed transferee, or unsuitability of intended use by
transferee)
 In real estate L can’t withhold consent for illegal reasons.
o
HYPO: No assignment or sublease without L’s prior express written consent.
 If represent T add “which consent may not be unreasonably withheld”
 If represent L add “which consent may be arbitrarily denied.”
 However, the T could decide to breach the covenant and it would be ok (L can sue T
for breach of covenant and recover damages, but the assignment stands).
43

ADD “Violation of an assignment or sublease clause allows L, at his option, to
terminate this lease and evict”
TERMINATION OF THE LANLORD/TENANT RELATIONSHIP
 TERMINATION
o On Time
o Holdover  T stays on too long
 L’s options: evict or consent (expressed or implied) to creations of new tenancy for further
term “holdover”
 Clairton Corp. v. Geo-Con, Inc  π said it was an implied consent, ct. said the L & T
were negotiating a new K and there was no evidence to imply intent to stay in the
property.
 In the absence of evidence showing a contrary intent, tenancy (from a holdover)
converts to a tenancy from year to year
 BASED on presumed intent
o Abandonment  T leaves early
 L’s options:
 Conveyance Theory(CL):
1. do nothing and collect rent when due;
2. retake possession for account of T (L gets dif. b/t old rent and new rent)
“mitigate” in GOOD FAITH
3. treat lease as terminated “accept the surrender” –express or by operation of
law
 Contract Theory:
1. mitigate in good faith; OR
2. Treat lease as terminated (accept the surrender)
 Can’t just sit around and collect on accelerated basis like in the
conveyance theory
 FL choice of remedies upon breach by T:
 Treat the lease as terminated and retake possession
 Retake possession
 Stand by and do nothing
o Followed the Conveyance Theory!
 RETALIATORY EVICTION DEFENSE (a protective measure for the T)
o Eviction in the sense that the L is asking the ct. to evict the tenant b/c the tenant won’t leave after the
term is up.
o L is retaliating against you. NON-RENEWAL. The lease should be renewed. T need’s to show the L’s
bad motive.
 Edwards v. Habib  if retaliatory eviction, L must renew until the retaliatory purpose has
dissipated
o Generally retaliatory eviction defense is not accepted in commercial leases b/c of the notion of caveat
emptor.
o Two Statutes:
 Summary Eviction Statute  shorter time period (1 week to respond to the complaint
approx.)
44
Housing Codes  make sure L is abiding by the restrictions, does he was suppose to do to
maintain the property
 Need “proper balance”
 ILLEGAL ACTIVITY
o Phillips Neighboring Housing Trust v. Brown A tenant under various public housing programs
possesses no absolute right to public housing and may be evicted for lease violations or other good
cause. Under the terms of the lease appellant signed & said she understood, PNHT is entitled to cancel
the lease and pursue an unlawful detainer against appellant.
o What if L “suspects” illegal activity? CALL POPO

 ABANDONEMENT & SURRENDER
o L could include an “acceleration clause” that says L could accelerate the maturity date (bring it
forward) so L could collect everything that is due now.
o If there’s an acceleration clause L can recover immediately!!!!
o Mesilla (follow property theory)  Any reletting under a survival clause must be for the T’s benefit in
order to preserve the L’s rights under the clause. A T is released, despite the survival clause, if the L
resumes possession for his own use. A T is also released when a L relets to a 3 rd person rent-free, a
result fair enough in view of the lack of benefit to the original T. Reletting with a rent concession does
not release the original T but abates his liability for the period covered by the concession.
o Frenchtown Square Partnership v. Lemstone, Inc.(followed the contract theory)  L must mitigate in
good faith “OR” treat lease as terminated (accept the surrender); L’s effort to mitigate must be
reasonable.
 ACCELERATION CLAUSE
o Once a L accelerates the rent he cannot also demand possession of the premises.
o If the L goes back into possession and relets the premises, he must give the T credit for the rents
received.
45