Bar – Real Property

  1. Present Estates in Land
    • Fee Simple Absolute
    • Fee Simple Determinable
    • Fee Tail
    • Life Estate
    • Term
  2. Concurrent Estates
    • Joint Tenancy
    • Tenancy in Common
    • Tenancy by the Entirety
  3. Future Estates in Land: Grantor Interests
    • Possibility of Reverter (FSD)
    • Right of Reentry/Power of Termination (FSSCS)
    • Reversion (LE)
  4. Future Estates in Land: 3d party interests
    • Executory Interests
    • Remainder
  5. Fee Simple Absolute: Rights
    Largest estate in land; person has all the rights available in land; may last forever
  6. Fee Simple Absolute: Words of Creation
    • Traditional: "A to B and his heirs."
    • Modern: "A to B."
  7. Fee Simple Determinable: Generally
    Estates may terminate before their maximum duration has run
  8. FSD: Words of Creation
    • Durational Language
    • So long as, as long as, while, during, unless
  9. FSD: Termination of Estate
    Immediately at the happening of a future event 

    Possibility of reverter
  10. FSSCS: Generally
    Conditional language that could end the estate early
  11. FSSCS: Words of Creation
    • Conditional Language
    • Provided, however; however, if; but if; on condition that; in the event that
  12. FSSCS: Termination
    Condition is triggered and grantor attempts reentry
  13. FSSCS: Right of Entry
    Right of Grantor to reenter land (must exercise duty)
  14. Ambiguous language in a conveyance between FSD, FFSCS, and FSSEL
    Go with FSSCS
  15. FSSEL: Generally
    On the happening of an event, estate terminates and property will pass to someone other than the grantor
  16. FSSEL: Words of Creation
    Either FSSCS or FSD language
  17. FSSEL: Executory Interest
    Future interest following an FSSEL
  18. Fee Tail: Generally
    Grantor conveys land to lineal descendants

    Texas has abolished; convert to fee simple absolute
  19. Fee Tail: Words of Creation
    A to B and the heirs of his body.

    Convert to FSA!
  20. Life Estate: Generally
    Lasts for duration of grantee's/3d person's life
  21. Life Estate pur autre vie
    Duration measured by the life of someone else
  22. Life Estates: Future Interests
    • Reversion in Grantor
    • Remainder in 3d party
  23. Can life estates be made defeasible? If yes, example?

    "A to B for life, as long as B farms the land."
  24. Life Tenant: Duties
    • 1. Maintain property in a reasonable state of repair;
    • 2. Pay all ordinary taxes; and
    • 3. Pay interest on any mortgages
  25. Term Estate
    Estate limited to a set duration

    Essentially, LL/tenant relationship
  26. Possibility of Reverter
    Future interest in grantor that follows a defeasible estate
  27. Possibility of Reverter: Creation
    No words of creation; automatic

    Statute of limitation begins to run against the grantee (and AP limit)
  28. Possibility of Reverter: Transferability
    Freely transferable, devisable, and descendible
  29. Right of Reentry
    Created in grantor and follows an estate subject to condition subsequent
  30. Right of Reentry
    Not automatic; has to be spelled out in the conveyance
  31. Right of Reentry: Generally
    When stated event occurs, property DOES NOT automatically revert to grantor; grantor must attempt reentry

    When event occurs, statute of limitations begins running against grantee
  32. Right of Reentry: Transferability
    Modern law: Freely transferable
  33. Reversion
    Future interest in grantor when he transfers less than a fee interest to a 3d person
  34. Reversion: Transferability
  35. Type of Conveyance: A to B for life.
    • Life estate
    • Remainder in A
  36. Type of Conveyance: To B for life, then to B's oldest child for life
    • Life estate;
    • Vested Remainder;
    • Reversion
  37. A to B for 10 years
    • Term estate
    • Reverter back to A after 10 years
  38. A to B provided that B uses the premises for residential purposes. If B ever stops using the premises for residential purposes, A or A's heirs can enter and retake the property
    • FSSCS
    • A has right of reentry (maybe, RAP may kill)
  39. A to B and her heirs for so long as liquor is not served on the premises
    • FSD
    • A possibility of reverter
  40. A to B for life so long as B farms the land
    • Life estate subject to divestment
    • Possibility of reverter
  41. A to B so long as B never serves liquor on premises; otherwise, to C
    • FSSEL
    • A: Nothing
    • C: Executory Interest
  42. A to B so long as B uses the property for
    residential purposes. If B ever stops using the property for residential purposes, to C.
    • FSSEL
    • C has shifting executory interest
  43. A to B for life. Then 20 years after B’s death,
    to C.
    • Life Estate in B
    • C has springing Executory Interest
  44. Executory Interest: Generally
    Future interest in 3d party that cuts short previous estate before it would have naturally terminated

    Dispositive word: Divest
  45. Executory Interest: Shifting
    Passes from grantee to grantee
  46. Executory Interest: Springing
    Passes from grantor (after getting interest back from 1st grantee) to new grantee
  47. Executory Interest: Transferablity
    Freely transferable
  48. Remainder: Generally
    Future interest created in 3d party; takes effect after natural termination of the preceeding estate; no divesting
  49. A to B for life, then to C
    • B: Life estate
    • C: Vested remainder
  50. Remainder: Transferability
    Freely transferable
  51. Remainder: Contingent
    Remainder that's not vested
  52. Remainder: Vested
    • Vested when:
    • 1. Created in an ascertainable person; and
    • 2. Not subj. to a condition precedent (other than the termination of preceding estate)
  53. A to B for life, then to oldest child of C then living
    • B: Life estate
    • Oldest Child: Contingent remainder
  54. A to B for life, remainder to C and her heirs if B reaches the age of 21
    • If at creation, C is 21: 
    • B: LE
    • C: Vested remainder

    • If at creation, C < 21:
    • B: LE
    • C: Contingent remainder
    • A: Reversion
  55. Remainder: Vested, subject to condition subsequent
    Presently vested, but may be terminated on the happening of a future event
  56. A to B for life, remainder to C, so long as liquor is never served on the premises
    • B: LE
    • C: Vested remainder subject to condition subsequent
    • A: Right of Reentry
  57. Remainder: Vested subject to open (partial divestment)
    Remainder made ot a class of people and has at least one ascertainable member and who has satisfied conditions precedent, but others may join later

    "My children..."
  58. A to B for life, then to the children of C
    When C has child, it is ascertainable and no condition to taking other than B's death

    Child: Vested remainder subject to open because other children may be born, lessening Child's interest
  59. Vested Remainder subject to open: Class Opening
    • 1. Inter vivos conveyance (class opens at conveyance)
    • 2. Testamentary conveyance (class opens at testator's death)

    NB: If potential class member dies before class opening, he's not a member of the class
  60. A to B for life, then to the children of C (class opening example)
    • If inter vivos:
    • B: LE
    • Any child: Vested remainder subject to open, if C dies, interest will pass in probate

    • If testamentary:
    • B: LE
    • Children alive at B's death: If at A's death, C's child D is alive, D is member of class. If D predeceased A, D is excluded from class (he died before it opened)
  61. Vested Remainder subject to open: Class Closing
    • Two ways:
    • 1. Naturally (no more members of class can be born)
    • 2. Rule of convenience (closes when one class member is entitled to immediate possession)
  62. A to B for life, then to C's children (class closing example). C has one child. While B is still alive and in possession, C dies. How did class close?
  63. A to B for life, remainder to the children of
    C. When B dies, C has two children living.
    Those two children would beentitled to take immediate possession of the property. 

    Any more children born are out of the class
  64. Doctrine of Worthier Title
    A conveys to B for life, remainder to A's heirs

    Creates a rebuttable presumption that A intended to retain that interest in himself as a reversion. B gets a life estate and A retains reversion.
  65. Waste: Generally
    • Fee Estate: Do whatever you want.
    • Less than Fee: Grantee cannot harm the property at expense of the holder of the future interest
  66. Waste: Types
    • Voluntary
    • Permissive
    • Ameliorative
  67. Waste: Voluntary
    Life tenant cannot intentionally or neg. damage the property

    Liable for damages
  68. Waste: Voluntary: Open Mines doctrine
    Mines open at time of conveyance can be exploited
  69. Waste: Permissive
    Life tenant must take reasonable steps to avoid damage to the property

    Liable for failure to do so

    E.g., Hurricanes are common in Fla, not putting special windows up may be permissive
  70. Waste: Ameliorative
    Life tenant making improvements to land
  71. Waste: Ameliorative: CL approach
    LT could not make substantial alterations unless authorized to do so

    Liable for damages to restore to original state
  72. Waste: Ameliorative: Modern approach
    • LT can if:
    • 1. Market val. for remainderman isn't affected; and either
    • 2. Remainder man permits; OR substantial/permanent change in the neighborhood that justifies the improvements
  73. Waste: Rights of Vested Remainderman
    Sue for damages or injunction
  74. Waste: Rights of contingent remainderman
  75. Restraints on Alienation
    Condition placed on the ownership of real property that restricts its free conveyance
  76. Restraints on Alienation: Total
    E.g., A to B, but if B ever tries to sell, reverter to A

    • On Fee: Invalid
    • On <Fee: Upheld if reasonable
  77. Restraints on Alienation: Partial
    [Commonly tested]

    • 1. Purchase option (can buy back at any time)
    • 2. Right of first refusal

    Both valid if reasonable
  78. RAP
    No interest is good unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest.
  79. RAP: Short cut
    Can you create a scenario in which somoen can claim possession of the future interest more than 21 years after the death of everyone alive when interest was created? If yes, RAP violation
  80. RAP: Applicatoin

    • Contingent remainders / Class gifts (vested remainder, subject to open)
    • Offer of purchase
    • Power of Appointment
    • Executory Interests
    • Right of First Refusal
  81. A to B so long as the property is used for residential purposes. If it is not used for residential purposes, then to C.
    • B: FSSEL
    • C: EI BUT, violates RAP because, if A, B, and C died, then 22 years later property was used for commercial purposes, RAP is violated.
  82. RAP: Remedy
    Strike offending language back to where grant makes sense
  83. RAP: Charity gift exception
    RAP doesn't apply
  84. RAP: Cy pres

    Judges can reform RAP-violating conveyance to fulfill wishes of grantor that don't violate RAP
  85. Concurrent estate
    Two or more people hold either a present or future interst in the property together

    • JT
    • TiC
    • TBE
  86. TiC: Creation
    Presumed from co-ownership

    No special words of creation
  87. TiC: Unities required
  88. TiC: Rights of Co-owners
    Equal rights to access, use, and enjoy the property
  89. TiC: Transferabiilty
    • Voluntary:
    • Conveyance; lease; mortgage; some other transfer of present/future possessory interest

    • Involuntary:
    • Foreclosure context; intestacy; devise
  90. JT: Rights
    Each has undivided interest in property

  91. JT: Creation
    To A and B, as JT and not as TiC, w/ full rights of survivorship
  92. JT: Unities

    • Time
    • Title (taken under the same instrument)
    • Interest (equal shares of same type)
    • Possession (equal possession of the whole)
  93. JT: Right of survivorship
    Death of on JT, remaining JTs interests expand

    Trumps everything, including a valid will
  94. JT: Transferability
    JT can transfer interest, but this will sever the JT into a TiC
  95. JT: Severing
    Becomes TiC

    • Done by an inter vivos act of party:
    • 1. Partition
    • 2. JT sells interest in property
    • 3. JT mortgages interest in property (title theory only)
  96. JT: TEXAS: Right of Survivorship
    Must have explicit creation of right of survivorship
  97. TBE: Generally
    Married couples; gives undivided interest in whole of property
  98. TBE: Severence
    • Severs when:
    • Either spouse dies; divorce
  99. Rights of Co-Tenants
    Entitles to possess entire property
  100. Rights of Co-Tenants: Profits
    • 1. Profits produced by co-tenant efforts: No right to share in profits unless ouster
    • 2. Profits produced by land (e.g., O&G): All co-tenants get equal share of rent
  101. Duties of Co-tenants: Expenses
    Taxes/mortgage: Pro rata

    • Repairs:
    • Majority rule:
    • – no duty; BUT if co-tenant makes a repair, entitled to set-ff of 3d party rents received in amount o repair; OR
    • – set off in a partition action to recoup cost of repair

    • Texas Rule:
    • – Co-tenants can seek contribution
  102. Duties of Co-tenants: Improvements
    No duty to improve

    No contribution

    BUT, if property is sold, improving tenant gets amount his improvement increased property value
  103. Adverse Possession
    Legally sanctioned stealing of title to land
  104. AP: Elements
    AH ON EC

    • Adverse
    • Hostile
    • Open and Notorious
    • Exclusive
    • Continuously for the statutory period
  105. AP: Hostile
    Claiming land as your own
  106. AP: Hostile: Claim of Right
    Claiming land as your own; non-permissive use; possession of the land that is inconsistent w/ the rights of the record owner
  107. AP: Hostile: Color of Title
    AP entered on the land, believing he had good title to the property, but deed is defective
  108. AP: Hostile: Permission
    Destroys hostility
  109. AP: Cotenanct
    Can only be accomplished through ouster
  110. AP: Hostility: Split on mental requirement
    • Majority: Mistaken encroachment sufficient
    • Minority: AP intended to encroach w/ intent to possess property
  111. AP: "Continuously"
    Based upon nature of property and its typical use

    E.g., only spending 3 mos of the year in a house (adversely) that can't be accessed 9 mos a year due to snow.
  112. AP: Tacking
    AP's time can stack w/ another AP so long as there is privity
  113. AP: What he obtains?
    Only the portion of the land he actually occupied

    E.g., AP an LE, you leave when remainderman gets the property
  114. AP: Sub-surface rights
    If record owner granted surface rights, AP only gets surface estate, not mineral esate
  115. AP: Effect of disability
    SoL can be suspended so long as disability existed at time AP began; begins when SoL is lifted
  116. AP: Recognized Disabilities
    • 1. Minority
    • 2. Insanity
    • 3. Imprisonment
  117. AP: Recognized Disabilities: TEXAS
    • 1. Minority
    • 2. Insanity
    • 3. Military service
  118. AP: Rights of AP
    • Until AP time has run:
    • True owner: Eject AP and sue for damages (e.g., past rents)
    • AP: True owner as against all others but record owner (AP can eject all but record owner from property)

    • After AP time has run:
    • AP: Full ownership
    • True owner: No longer owner
  119. AP: Hostility: TEXAS approach
    Objective approach (no intent needed)
  120. AP: Statutory Periods: TEXAS
    3, 5, 10, 25
  121. AP: Statutory Period: TEXAS: 3 years
    Under color of title (chain of title that has defect in it at some point)
  122. AP: Statutory Period: TEXAS: 5 years
    AP by someone who cultivates, uses, or enjoys property and claims it under duly registered deed, and pays taxes on it
  123. AP: Statutory Period: TEXAS: 10 years
    Someone who cultivates, uses, or enjoys the property (no deed needed)
  124. AP: Statutory Period: TEXAS: 25 years
    AP required; disability doesn't even factor in!
  125. Statute of Frauds
    • Requires writing for a transfer of interest in real property, signed by the party charged and must have:
    • 1. Property description
    • 2. Party description
    • 3. Price; and
    • 4. Any conditions of price or payment agreed to
  126. SoF: Exceptions: Part performance
    • Otherwise invalid oral K, provided acts of part performance unequivocally prove K existence
    • 1. Payment of all or part of purchase price;
    • 2. Taking of possession;
    • 3. Making substantial improvements

    TEXAS: Must have all three!
  127. SoF: Exception:  Equitable/promissory estoppel
    • 1. Equitable estoppel: Based on act or rep
    • 2. Promissory estoppel: Based on a promise
  128. Equitable conversion
    • When land sale K is formed, point at which title bifurcates into:
    • 1. Equitable title (buyer)
    • 2. Legal title (selelr)
  129. Equitable Conversion: Risk
    • Majority:
    • Buyer bears

    • Minority (Texas):
    • Uniform Vendor and Purchaser Risk Act:
    • Risk of loss placed upon the seller, unless buyer has legal title or buyer is in possession
  130. Marketable Title
    All K’s for the sale of real property have an implied promise to convey marketable title to the buyer

    This includes quitclaim deeds!

    Does not mean perfect title!
  131. Marketable Title: What you're warranting
    Title is reasonable free from doubt; look for defects in title
  132. Marketable Title: Defects in title
    • 1. Mortgage
    • 2. Covenant/Easement
    • 3. Title of AP until AP brings suit to quiet title
    • 4. Existing condition that violates zoning ordinance
  133. Duty to Disclose Defects
    Seller must disclose materiial, latent defects known to the seller but not readily observable or known to the buyer
  134. Duty to Disclose Defects: Applicability
    • Commercial builders
    • New residential home developers
  135. Duty to Disclose Defects: Applicability, TEXAS
    • 1. Disclosure must be in writing
    • 2. Only to sellers of real property, not agents
    • 3. Sellers of new or used homes
  136. Duty to Disclose Defects: "Material"
    Affects health and safety of the occupants, judged by reasonable person
  137. Duty to Disclose Defects: "Defect"
    Physical or structural problem
  138. Implied Warranty of Quality
    Applies to contractors and commercial sellers

    Covers significant latent defects caused by D's poor workmanship
  139. Implied Warranty of Quality: TEXAS
    • 1. Applies to first and subsequent purchasers
    • 2. No disclaimer
  140. Merger Doctrine
    At closing, K and deed merge, seller loses the ability to sue on K
  141. Types of Deeds
    Quitclaim (no covenants; buyer cannot sue on it; as-is)

    General warranty deed (all 6 covenants and all the time before conveyance to the buyer)

    Special warranty deed (all or some covenants, period covered is grantor's ownership)
  142. Covenants of Title: Present Covenants
    • Seisin
    • Right to convey
    • Against encumbrances

    NB: Present covs don't run with the land! Can only be breached at closing.

    NB: SoL begins at closing
  143. Covenants of Title: Seisin
    Promise by grantor that he owns property (closely associated w/ right to convey)
  144. Covenants of Title: Right to Convey
    Promise that grantor can convey the property (closely tied w/ seisin)
  145. Covenants of Title: Against encumbrances
    No undisclosed encumbrances
  146. Covenants of Title: Future Covenants
    • Quiet Enjoyment
    • Warranty
    • Further assurances

    • NB: Runs with land, breach can be at closing or after
    • NB: SoL starts when grantee is evicted by 3d party w/ good title
  147. Covenants of Title: Quiet Enjoyment
    Grantee won't be disturbed by a 3d party asserting valid claim
  148. Covenants of Title: Warranty
    Grantor will defend grantee against any valid 3d party claim
  149. Covenants of Title: Further Assurances
    Grantor will do everything reasonably needed to perfect title
  150. Death during executory period
    • Seller dies after K, before closing:
    • Legal title passes to heirs, but they must honor sales agreement

    • Buyer dies after K, before closing:
    • Right to closing passes to heirs of the buyer
  151. Requirements of a Valid Property Conveyance
    • 1. Writing
    • 2. Delivery
    • 3. Acceptance
  152. Requirements of a Valid Property Conveyance: Writing Requirements
    • 1. ID parties
    • 2. ID intent to make present transfer of propertiy
    • 3. Sufficient description of the property
    • 4. Grantors Signature (grantee's not needed)
  153. Requirements of a Valid Property Conveyance: Writing: Not required
    • 1. Grantee's signature
    • 2. Consideration
    • 3. Notarization
    • 4. Recordation
  154. Delivery of Deed: Requirements
    Grantor has mental intent to transfer property to grantee
  155. Delivery of Deed: Ways to Deliver
    • 1. Give deed to grantee
    • 2. Retain deed
    • 3. Give deed to agent in escrow
  156. Delivery of Deed: Effect of giving deed to grantee
    Forms rebuttable presumption of delivery

    Rebutted through: Extrinsic evidence that grantor had no present intent to presently transfer property
  157. Delivery of Deed: Effect of giving Deed to Grantee with conditional language
    Delivery is valid and condition unenforceable

    E.g., Grantor gives deed to Grantee and says, “This property shall become yours if you graduate from law school.” Presumption controls.
  158. Delivery of Deed: Effect of grantor retaining deed
    Rebuttable presumption of non-delivery; rebutted through extrinsic evidence that delivery was intended

    E.g., showing that Grantor wrote in an email, I'm giving the property to you now, but I want to hold on to the deed until the end of the year
  159. Delivery of Deed: Effect of giving deed to 3d party agent
    Agent will give deed to grantee eventually
  160. Relation-Back Doctrine
    If agent eventually gives deed to grantee, conveyance relates back to date grantor gave deed to agent
  161. January 1: Grantor executes a deed, gives it to his agent, and tells his agent:
    “I want you to give this deed to B.” 

    January 4: Grantor executes a second deed and gives it to C.

    January 8: Agent gives the first deed to B. 

    Who wins?
    B wins. The conveyance to B relates back to January 1, meaning that there is nothing for C totake.
  162. Grantor gives the deed to X, the third party, and says, “X, give this deed to B if B graduates from law school.”

    A month later, grantor conveys the property to C.

    Who wins?
    Looks like C would win out. However, once B satisfies the condition, the conveyance to B will relate back to the date grantor gave X the deed, which was before the transfer to C.  B wins.
  163. Death Escrow
    “X, give this deed to grantee when I die.”

    Facially invalid, but cts construe that grantor gave himself LE w/ remainder in grantee 
  164. Effect of grantor expressly retaining right to reclaim deed from 3d party escrow agent
    No transfer of title through escrow
  165. Delivery of Deed: Buyer Acceptance
    Buyer must accept for delivery to be valid

    ** Always mention acceptance in essays! **
  166. Delivery of Deed: Presumption of Acceptance
    Presume acceptance if the transfer is beneficial to the grantee
  167. Recordation
    Not a requirement, but a great idea; protects record owner against claims by subsequent purchasers
  168. Recording Acts: Application
    Deeds; easements; covenants; servitudes; mortgages
  169. Recording Act: Mantra
    First in time prevails unless subsequent purchaser protected by recording statute
  170. Recording: CL approach
    First in time wins.
  171. Recording: Race
    First to record wins
  172. O, owner of Blackacre, conveys Blackacre to A, who does not record her deed. O then conveys Blackacre to B, who pays value, immediately records his deed, and has actual
    notice of A’s deed. 

    Race state, who wins?
    • Although B had actual notice of A’s deed, B prevails over A because B recorded before A,
    • even with actual notice!
  173. Recording Act: Notice

    Subsequent BFP wins
  174. BFP
    Bona fid purchaser

    • Purchases land:
    • 1. For value (sliding scale)
    • 2. Without notice
  175. BFP: Paying value
    Paying purchase price (or reasonable amount) for the property

    • Mortgagee is considered to pay value
    • Judgment creditor is considered to pay value, but is protected only as to subsequent conveyances (that is, after lien has attached)
  176. BFP: Notice Types
    • Actual
    • Constructive
    • Inquiry
  177. BFP: Actual Notice
    Knowledge actually possessed

    E.g., you see the prior deed
  178. BFP: Constructive
    Comes through recording acts; as soon as deed is recorded, constructive notice given to entire universe
  179. BFP: Inquiry notice
    Appearance of land is such that claimant should have asked more questions about the title of the land
  180. Buyer fails to make a visual inspection of a lot
    he plans to buy from Seller. Had he visited the lot, Buyer would have seen another family living and working on the land.

    Yep. Inquiry notice.
  181. O, owner of Blackacre, conveys Blackacre to A, who does not record her deed. O then conveys Blackacre to B, who pays value, who does not have actual or inquiry notice of A’s deed, and who does not record his deed.

    Nope. B didn't have any notice and, therefore, was a BFP  and wins.
  182. O, owner of Blackacre, conveys Blackacre to A, who promptly records her deed. O then
    conveys Blackacre to B, who pays value, does not have actual or inquiry notice of A’s deed, and promptly records his deed.

    Yes. Constructive.
  183. Record Acts: Race-Notice
    • Subsequent purchaser wins if:
    • 1. BFP
    • 2. Records before prior interests
  184. O, owner of Blackacre, conveys Blackacre to A, who does not record her deed. O then conveys Blackacre to B, who pays value,
    who does not have actual or inquiry notice of A’s deed, and who promptly records his deed. A then records her deed. 

    Race-notice state. Who wins?
    B. BFP who recorded first.
  185. O, owner of Blackacre, conveys Blackacre to A, who does not record her deed. O then conveys Blackacre to B, who pays value,does not have actual or inquiry notice of A’s deed, and does not record his deed. 
    • A prevails over B because B did not
    • record his deed and, therefore, A prevails under the common law rule of first
    • in time, first in right.
  186. Process of Recording Conveyance: Tract Index

    Legal description of the property, followed by a chronological listing of all conveyances dealing w/ that property
  187. Process of Recording Conveyance: Grantor-Grantee Index
    • Two step process:
    • 1. Grantee index search: Search backwards in time using grantee's last name, ID-ing each previous owner's name
    • 2. Grantor index search: Come forward in time, ID-ing every conveyance by every owner
  188. Estoppel by Deed
    Someone transfers title to something they don't have, but later acquire title to; conveyance is valid under estoppel
  189. July 1: B owns the property.
    August 1: B transfers to X; but X does not record.
    August 15: B transfers to C; C records immediately.
    September 1: X records.
    September 15: C transfers to D; D records.

    C is a BFP. Result?
    • This is the application of the shelter rule.
    • As between C and X, C defeats X’s claim. D can shelter under C’s title.
  190. Mortgage
    Conveyance of interest in real property made to secure repayment of debt (usually the purchase of land)
  191. Mortgagor
    Owner of the property; the debtor
  192. Mortgagee
    Creditor; lender
  193. Mortgage: Instruments making up a mortgage
    • Deed: Creates interest in real property that secures the mortgage debt
    • Note: Represents the financial obligation of the borrower; creates personal liability for the named individual

    NB: Thhe mortgage is deemed to follow the note; that is, whoever has the note also has the benefit of the mortgage (absent a specific agreement to the contrary)
  194. Mortgage: Title Theory
    Mortgagee receives legal title the property has a right to take possession and collect rent from the property
  195. Mortgage: Lien theory
    Mortgagee receives only lien on the property; holds equitable title. Mortgagor has legal title to property and has right to possession until there’s a foreclosure sale
  196. Mortgage: Intermediate theory
    Lien theory until default, then title theory applies
  197. Foreclosure
    Creditor remedy on default

    • Judicial process:
    • 1. Creditor initiates foreclosure proceeding
    • 2. Property is seized and sold at foreclosure sale
    • 3. Proceeds pay debtors
  198. Foreclosure: Debtor repayment hierarchy
    • 1. Pay costs of sale
    • 2. Pay debt that was foreclosed upon
    • 3. Pay junior liens extinguished in sale
    • 4. Pay borrower remaining amount
  199. Foreclosure: Non-judicial

    Trustee designated by lender sells property at public auction w/o court intervention
  200. Foreclosure: Non-judicial: Requirements
    • 1. Power of sale clause must be included in mortgage docts
    • 2. Sale must occur between 10 AM and 4 PM on first Tues, at county cthouse in county in which land is located
    • 3. Notice given
  201. Foreclosure: Non-judicial: Notice requirements
    21 days before the sale; must include earliest time a sale could occur and must be given to the general public and debtor

    BUT, if debtor uses property as his residence, certified mail notice giving ≤20 days to cure defect before public notice can be given
  202. Limit on Mortgages encumbering property
  203. Effect of junior mortgage being foreclosed on
    The more junior mortgages are dissolved, but the purchaser of the land takes the land with the senior mortgages attached
  204. Deficiency judgment
    In personam judgment on the amount of debt not recouped in foreclosure sale
  205. Redemption
    Debtor's remedy

    CL: Stopping foreclosure process by paying off entire amount due (all states, including TEXAS)
  206. Equitable right of redemption
    CL redemption existing up until the foreclosure sale takes place
  207. Statutory right of redemption
    Allows redemption after foreclosure; debtor has a fixed amount of time to go to the person who bought the land at foreclosure and pay them the same cost for the land

    TEXAS DOES NOT recognize
  208. Subject to mortgage vs. Assumption mortgage
    Subject to: Grantee is not personally liable for previous grantee's mortgage; land still is and can be taken from new grantee

    Assumption: New grantee is personally liable for previous grantee's mortgage; previous grantee can see exoneration from new grantee if previous grantee is sued
  209. Subject to vs. Assumption: Ambiguous language
    Look at other facts in problem to see if it clarifies; then

    Treat as if grantee is only subject to mortgage
  210. Deed of Trust
    Type of trust relationship; 3d party holds on to a deed and will not give the deed to debtor until debtor repays lender
  211. Installment land-sale K
    Purchaser of land will pay off the purchase price over a series of payments; the creditor retains deed until all payments are made

    TEXAS: Contract for deed
  212. TEXAS: Contract for deed
    Default before 40% of purchase price/48 mos of payments: Seller can rescind and keep all payments

    Default after 40%/48 mos of payments: Seller must commence non-judicial foreclosure after 60 days notice
  213. Easement
    Interest in land of another person; usually an access right
  214. Easement: Checklist/Test Approach
    • 1. Was easement created?
    • 2. Scope of easement?
    • 3. Was it terminated?
  215. Servient estate
    Estate burdened by the easement

    Always present, regardless of easement type
  216. Dominent estate
    Estate benefitted by easement

    Not always present in easements
  217. Easement appurtenant
    • Benefits a parcel of land
    • Dominant and servient estates
    • Runs w/ land
  218. Easement in Gross
    • Benefits person rather than land
    • No dominant estate
    • Doesn't usually run with the land
  219. Easement: Ways to create
    • Express
    • Prescription
    • Implied
    • Estoppel
    • Public use
  220. Easement: Express: Requirements
    • 1. Severance of title to land held in common ownership
    • 2. Existing, apparent, and continuous use when severance occurs
    • 3. Reasonable necessity for the use at the severance (courts may increase this to strict necessity [TEXAS])
  221. Easement: Necessity: Requirements
    • 1. Severance of title to land held in common ownership
    • 2. Causing strict necessity for the use at the time of severance
  222. Easement: Estoppel: Requirements
    • 1. Act or representation by the owner of the burdened estate indicating that the land may be used for access by the other party (license)
    • 2. Justifiable reliance
    • 3. Damages suffered by other party if easement is denied
  223. Easement: Public Use Easement
    No one person using the land for the statutory period

    E.g., owner of beach-front property has public crossing his property to get to water for the statutory period; public use easement created
  224. Easement: Scope
    Extent that is reasonably necessary to do so

    E.g., crossing someone else's land to reach a highway; allowing a second person to build on my land, causing two people to drive across land. This is okay.
  225. Surcharging the Easement
    Will not terminate the easement, but servient estate owner can enjoin excessive use or obtain damages

    E.g., easement to drive across land, but I destroy home and build apartment complex, now 100 people drive across land, servient owner could seek damages
  226. Easements: Scope: Reasonably necessary acts to maintain easement
    Allowed, even if they interfere w/ servant owner's use of his property

    This includes reasonably contemplated upgrades!
  227. Easements: Transfers
    Appurtenant: Transfers w/ underlying land, even if new owner didn't know of easement

    In Gross: Transferable to another person if original grantor intended that outcome and the easement is commercial in nature

    TEXAS: Express assignment provision needed to transfer easement in gross
  228. Easements: Termination
    • 1. Destruction (unless servient estate caused destruction)
    • 2. Termination by Easement holder actions
    • 3. Termination by Servient estate holder
  229. Easements: Termination: Actions of the Easement Holder
    • 1. Merger of title
    • 2. Express written release
    • 3. Abandonment (Intent coupled w/ affirmative act)
    • 4. Termination by Estoppel
    • 5. Owner tries to sever easement from dominant estate
  230. Easements: Termination: Owner tries to sever easement from dominant estate, example
    • A owns Blackacre. Between Blackacre and a lake where A fishes, there is Whiteacre. A
    • approaches the owner of Whiteacre and arranges to purchase an easement across
    • Whiteacre. This easement is going to last for five years. Two years later, A doesn’t want to fish, but his neighbor C does. A offers to transfer the easement to C. This would be improper because the easement was to benefit Blackacre, and A is now trying to sever it from the dominant estate.
  231. Easements: Termination: Termination by Estoppel
    Owner of servient estate can detrimentally rely upon easement holder's stopping of use
  232. Estates: Termination: Actions of Servient estate owner
    • 1. Presciption (interfere w/ easement use for statutory period)
    • 2. Servient estate sold to BFP w/o notice of easement
  233. Profit (land)

    The right to enter someone else's property to take something off it

    E.g., profit a prendre
  234. Profit (land): Creation
    Expressly or by prescription
  235. License
    Privilege to go on land

    Personal right rather than interest in land
  236. License: SoF needed?
    Nope. Can be oral.
  237. License: Revocable
    Generally, yes.
  238. License: Irrevocable license
    • 1. License coupled w/ interest
    • 2. Executed license (estoppel; arises when person getting license expends money or labor in reliance upon the license)
  239. Covenants: Requirements to run with land

    • Privity
    • Intent
    • Notice
    • Touch and concern

    Damages: Money damages
  240. Covenants: Touch and concern
    • 1. Servient estate: Restriction reduces use, enjoyment, or value of servient estate
    • 2. Dominant estate: Restriction must increase use, enjoyment, or value of dominant estate
  241. Covenants: Intent
    Writing must include language showing parties' intent that covenant run with the land and bind successors in interest
  242. Covenants: Notice
    New owner of servient estate must take w/ notice of restriction
  243. Covenants: Privity
    • 1. Horizontal Privity
    • 2. Vertical Privity
  244. Covenants: Horizontal Privity
    • Relationship between original covenanting parties
    • 1. LL/tenant relation
    • 2. Grantor/grantee relation
    • 3. Mortgager/mortgagee relaton

    TEXAS requires horizontal privity
  245. Covenants: Vertical privity
    Relation between original party of the agreement and the successor in interest to that party

    • NB: Holder of servient estate must transfer all interest in the servient estate
    • e.g., B owns in fee simple and leases to D for five years, no vertical privity

    TEXAS DOES NOT require
  246. Equitable Servitude
    • TIN
    • Touch and Concern
    • Intent
    • Notice

    NB: No privity required

    Damages: Equitable (injunctions, etc.(
  247. Covenant/Equitable Servitude: Termination
    • 1. Written release
    • 2. Merger of dominant and servient estate
    • 3. Abandonment
    • 4. Estoppel
    • 5. Changed circumstance so reason behind restriction is no longer valid (e.g., B&B sells some land to A but A can't build above x height; B&B burns down and is not rebuilt. Circumstances changed so A can build above height)
  248. Covenants and Equitable Servitudes: SoF
    SoF usually must be complied with
  249. Covenants and Equitable Servitudes: SoF: Implied Reciprocal Servitude
    • 1. Negative restrictions only
    • 2. Restriction must be part of common plan or scheme
    • 3. Current servient estate owner must take estate w/ some notice of restriction

    • E.g.,
    • Owner has a large family estate that he
    • subdivides into 10 lots. He sells off 9 of the lots and into their deeds writes, “This property can only be developed through single story residences.”

    • When the owner sells off the 10th deed, the owner forgets to include the restriction. There is no express restriction but it can be implied since it is part of the common scheme and the current owner took with inquiry notice by
    • seeing that everyone else is building only single story residences.
  250. Tenancy at Will
    An estate in land that is terminable at the will of either the landlord or the tenant.
  251. Modification of a Mortgage: Effect upon Senior lender
    Even with a PMM, if a Senior lender modifies its mortgage and the modification materially prejudices the Junior lender, the Junior lender prevails.
  252. Modification of a Mortgage: Material prejudices to Junior lenders
    • (1) increasing the amount of principal; or
    • (2) increasing the interest rate (if the rate under the original mortgage was fixed)
  253. Zoning
    State can regulate for health, safety, and welfare of its citizens
  254. Eminent Domain
    Gov't can take fee simple interest in property as well as an easement in property
  255. Nuisance
    Unreasonable interference w/ someone else's enjoyment of his land
  256. Nuisance: Test
    Does the gravity of the harm outweigh the benefit of the conduct
  257. Support Rights: Lateral
    Landowner must provide adjoining landowner w/ support from the sides
  258. Support Rights: Lateral: General rule
    Absolute right to lateral support (unimproved land)

    Adjoining landowner strictly liable for damages suffered
  259. Support Rights: Lateral: Improved Land
    Dispositive Q: Would adjoining land have subsided anyways, or did the weight of the improvement contribute to subsidence?

    • If yes: Strict liability
    • If no: Negligence required
  260. Support Rights: Subjacent
    CL: One who owns mineral estate is strictly liable to surface owner

    MBE: Strict liability, too

    TEXAS: Generally follows strict liability, BUT, Texas treats mineral estate as dominant, so mineral owner can use as much of surface as is reasonably needed to enjoy minerals
  261. Surface Water Rights: Riparian
    Anyone in watershed can make reasonable use of water

    Unreasonable use: Injunction/damages
  262. Surface Water Rights: Prior Appropriation/Use View
    First beneficial user gets superior water rights to later beneficial users
  263. Crops/Emblements: Sale of goods or real property?
    • UCC:
    • Crops severed form land before delivery: Goods
    • Crops still attached to land: Real property
  264. Homesteads (Texas)
    Prop. used for residential/biz purposes that is exempt from the claims of certain creditors
  265. Homesteads (Texas): Who can claim?
    • Family
    • Single adult
  266. Homesteads (Texas): Establishing
    • 1. Formal Designation; or
    • 2. Showing two factors:
    • – Intent to use land as home
    • – Overt acts consistent w/ using land as your home
  267. Homesteads (Texas): Types
    • Rural
    • Urban
  268. Homesteads (Texas): Rural
    When designation is made, property is not w/in city limits and not served by police or fire protection
  269. Homesteads (Texas): Rural: Limitations
    Family: ≤200 acres; no need for contiguity

    Single: ≤100 acres; no need for contiguity

    NB: No business use in the property (contra urban homesteads)
  270. Homesteads (Texas): Urban
    Located in a city and consists of not more than 10 acres used as a home or home and business
  271. Homesteads (Texas): Urban: Limitations
    One lot or multiple contiguous lots
  272. Homesteads (Texas): Effect of designation
    Protected from forced sale for payment of debts
  273. Homesteads (Texas): Protection from sale: Exceptions
    • 1. Purchase-money liens
    • 2. Taxes
    • 3. Owelty of partition
    • 4. Refinancing valid lien
    • 5. New construction improvements on property
    • 6. Credit secured by voluntary lien
    • 7. Reverse mortgage
    • 8. Conversion and refinance of personal property lien

  274. Homesteads (Texas): Protection from Sale: Spouses
    One spouse can't sell, convey, or encumber property w/o consent of other spouse

    E.g., O&G lease agreed to by only one spouse isn't valid
  275. Homesteads (Texas): Termination
    • 1. Death of owner (unless survivors include spouse, minor child, unmarried daughter)
    • 2. Divorce (BUT, single people can have homesteads)
    • 3. Abandonment (moved w/ intent of not returning to property)
  276. Homesteads (Texas): Multiple
    Nope. Can't get new homestead unless you abandon old one.
  277. Tenancy: Types
    • 1. Years
    • 2. Periodic
    • 3. Will
    • 4. Sufferance
  278. Tenancy for Years
    Definite beginning and end
  279. Tenancy for Years: Creation
    LL/tenant agreement

    Can be oral unless duration is >1 year
  280. Tenancy for Years: Term
    Set duration
  281. Tenancy for Years: Termination
    Terminates automatically; no notice needed
  282. Periodic Tenancy
    Set beginning date and will continue from period to period w/o set termination date until proper notice given to terminate tenancy
  283. Periodic Tenancy: Creation
    • Expressly: LL/tenant agreement
    • Implication: Holdover tenant, LL accepts rent
  284. Periodic Tenancy: Term
  285. Periodic Tenancy: Termination
    Either LL or tenant can terminate after giving appropriate notice
  286. Periodic Tenancy: Appropriate notice
    • 1. Written
    • 2. Be equal to the rental period up to a maximum of six months
  287. Period Tenancy: Notice Required:

    Month-to-month tenancy
    Three month tenancy
    One year tenancy
    • One Month
    • Three months
    • Six months
  288. Periodic Tenancy: Timing of Notice
    CL: Notice must be given at start of rental period or its invalid

    • Modern: Notice good whenever given, BUT, tenancy cannot end until the last day of a period (and tenant is responsible for rent until then)
    • E.g., Month-to-month tenancy w/ rent due first of month. Tenant gives notice Aug. 15, allowed to stay (and must pay) until Sept. 31.
  289. Tenancy at Will
    Often a default; created expressly
  290. Tenancy at Will: Termination
    • 1. As soon as either party decides, no notice needed
    • 2. Either LL or tenant dies
    • 3. Either party attempts to transfer his interest
  291. Tenancy at Will: Unilateral Termination rights?
    LL expressly given right to terminate: Cts will read tenant as having right, too.

    Tenant expressly given right to terminate: Cts WON'T read in LL right, too.
  292. Tenancy at Sufferance
    Holdover tenant  doesn't leave at the end of the tenancy
  293. Tenancy at Sufferance: Creation
    LL accepts rent: Tenant become periodic tenant (period is that for which rend is reserved)

    LL rejects rent: Tenant at sufferance; LL may evict tenant

    TEXAS: LLs must give holdovers 3 days notice before filing suit to evict
  294. LL/Tenant Disputes: Rent dispute: Tenancy for Years
    Tenant liable for all unpaid rent in lease (e.g., 5 year lease, leave at 1 year, liable for rent for last 4 years)

    • CL: Could only get money as it came due
    • Modern: Anticipatory Repudiation (w/ duty to mitigate)
  295. LL/Tenant Disputes: Rent disputes: Periodic Tenancy
    LL may sue for the rental obligation up until notice given to terminate

    E.g., $1000/mo rent on first of month. March 31, tenant moves out, tenant liable for May's rent.
  296. LL/Tenant Disputes: Rent disputes: Tenancy at Will
    LL may sue for rent that is fixed in agreement and is already owed
  297. LL/Tenant Disputes: Rent disputes: Tenancy at Sufferance
    LL may sue for reasonable rental value of property (e.g., rent was $1000, but value of space increased to $1500, LL can get $1500)

    If made into periodic tenancy, look to rent in expired lease
  298. English Rule
    Majority (TEXAS)

    Must deliver actual possession on first day of tenancy
  299. American Rule
    Minority rule

    LL must deliver right of possession, not actual possession, on first day of lease; new tenant must begin eviction proceedings against holdovers
  300. LL/Tenant: Effect of eviction
    Excused from paying rent
  301. LL/Tenant: Actual eviction
    Physically removing tenant from property
  302. LL/Tenant: Partial eviction by LL
    Excuses tenant from all rent
  303. LL/Tenant: Partial eviction by agent of LL
    Rent abatement in amt attributable to the part evicted from
  304. LL/Tenant: Constructive Eviction
    Breach of covenant of quiet enjoyment

    • The use and enjoyment of the property has been substantially interfered with; and
    • Tenant must actually move out w/in a reasonable time following substantially interfering act
  305. LL/Tenant: Constructive Eviction: Act of 3d part
    CE can still be triggered; LL should have known that interference would cause CE
  306. LL/Tenant: Constructive Eviction: Effect
    • Total: Defense to payment of all rent
    • Partial: Rent abatement
  307. LL/Tenant: CL obligations of covenant of quiet enjoyment
    • 1. Keeping premises habitable
    • 2. Disclose known latent defects unknown to tenant
    • 3. Maintaining common areas; and
    • 4. Abate nuisances on neighboring properties owned by LL
  308. LL/Tenant: Surrender of premises
    LL must accept surrender and retake possession

    VERY RARE; LL will typically be required to mitigate
  309. LL/Tenant: Destruction of Property: Effect
    CL: NO effect on rent (unless only leasing a portion of a building that was destroyed)

    Modern: No distinction between leasing all or part of a property; destruction = complete defense to non-payment of rent UNLESS tenant caused the destruction
  310. LL/Tenant: Warranty of Habitability
    Usually applies only in residential leases (TEXAS)

    LL must maintain premises in habitable condition; failing to may = Constructive Eviction
  311. LL/Tenant: Warranty of Habitability: Problems not bad enough for tenant to move out
    • 1. Tenant can notify LL of problem and correct it
    • 2. If LL hasn't fixed it w/in reasonable time, Tenant can repair and deduct
  312. LL/Tenant: TEXAS obligations upon LL
    • If breach occurs, tenant may:
    • 1. Stay in possession and w/hold rent
    • 2. Treat lease as cancelled and get damages
    • 3. Repair and deduct
  313. LL/Tenant: TEXAS Implied warranty of suitability
    Comercial properties have no latent defects in vital facilities
  314. LL/Tenant: Other K defenses
    Impossibility, impracticability, frustration

    • E.g., Tenant leased a second floor studio to use as a dance studio. In the second year, a student broke through a floorboard and a
    • contractor discovered that the floor was not strong enough to be used as a dance studio. This would constitute frustration of purpose and would discharge the lease.
  315. LL/Tenant: LL obligations to maintain
    • CL: None
    • Modern: Implied warranty of habitability
  316. LL/Tenant: Tenant's obligation to maintain
    • CL: None
    • Modern: No voluntary, permissive, or ameliorative waste

    • NB: Ameliorative waste:
    • CL: No improvements; LL could hold tenant liable for improvements
    • Modern: Tenant can improve if expressly authorized or in change of circumstances 
  317. LL/Tenant: Right of Possession
    Tenant has exclusive right of possession
  318. LL/Tenant: Right of Possession: When can LL retake?
    When tenant commits a material breach that terminates the lease
  319. LL/Tenant: Right of Possession: LL retaking premises
    • CL: Reasonable force (self-help)
    • Modern: No force; must give notice and hearing to determine if there was a breach before eviction
  320. LL/Tenant: Retaliatory eviction
    Not allowed
  321. LL/Tenant: Texas: Lock out requirements
    • 1. Preserve right in lease
    • 2. Provide notice to tenant as to amount he must pay to avoid having locks changed; and
    • 3. Notice tenant of his right to get a new key at any hour, regardless of whether he pays the delinquent rent

    Failing to do these things can = civil damages
  322. LL/Tenant: Fixtures
    CL: Anything affixed to land became part of the land and had to stay unless a trade fixture (equipment attached to real property used for tenant's business)

    Modern: Treat all fixtures the same (no residential vs. trade); can remove fixture if premises left in substantially the same condition as when tenant arrived

    Usually must be removed before expiration of lease, but some states allow post-lease removal
  323. LL/Tenant: Fixtures: Presumption against structural changes
    Presumption that the premises cannot be returned to substantially the same condition as when tenant arrived when change is structural; can't be removed

    • E.g., Tenant wants to remodel a downstairs
    • bathroom and places the spa in that bathroom. Upon leaving, he wants to take
    • it. This would be a structural change and cannot be removed.
  324. LL/Tenant: LL liability for 3d party criminal acts
    Only if 3d party's entry and injury were reasonably foreseeable to the LL
  325. LL/Tenant: LL liability for injuries to invitees
    Not liable to tenant for injuries caused by condition of the property

    Tort exceptions exist (e.g., undisclosed dangerous condition known to LL but not disclosed to the tenant)
  326. LL/Tenant: Assignment
    Tenant gives 3d party all right, title, and interest in leased premises

    Privity is maintained
  327. LL/Tenant: Assignment: Privity
    Privity of estate between assignee and LL
  328. LL/Tenant: Assignment: Privity of Estate: Effect
    LL can sue assignee AND original tenant if rent is unpaid

    BUT, if assignee assigns to another person, LL can't get first assignee anymore
  329. LL/Tenant: Subleases
    Tenant transfers less than all right, title, and interest in property
  330. LL/Tenant: Subleases: Privity
    None; LL can't get rents, can only evict subtenant
  331. LL/Tenant: Covenants against transfer
    Generally, freely transferable but LL can prohibit
  332. LL/Tenant: Covenants against transfer: Prohibitions against transfer
    Allowed but narrowly construed

    E.g., LL must prohibit assignments and subleases expressly
  333. LL/Tenant: TEXAS assignment/sublease approach
    Statutory prohibition against assignments/subleases w/o LL consent (can be K'd around)

    BUT, LL has duty to mitigate
  334. LL/Tenant: Which LL is due rent
    Whoever is LL of record on the date rent is due is entitled to the rent
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