CAB Property

• Existence of a debt/promise of payment by the deed's grantor
• grantee's promise to return land if debt is paid
• the amount advanced to the grantor/debtor was much lower than property value
• the degree of the grantor's financial distress
• the parties' prior negotiations

• If notified prior to expiration of lease, the notified (new) amount and:
• commercial tenant: year-to-year
• residential: month-to-month

• Residential: look to the nature of the fixture; the intent of the tenant; and damage caused by removal
• Commercial: Trade Fixtures Doctrine - can remove all commercial fixtures prior to removal

• Fee simple absolute-absolute ownership with indefinite duration.
• Defeasible fees - Fee simple determinable/subject to a condition subsequent/subject to an executory limitation

• absolute ownership with indefinite duration.
• "To A and his heirs . . ."
• Characteristics: devisable, descendible, and alienable.

• Fee simple determinable: terminates upon happening of stated event and automatically reverts to grantor
• Fee simple subject to a condition subsequent: can be terminated by grantor upon happening of a stated event.
• Fee simple subject to an executory limitation: terminates uponhappening of stated event, then passes to third party

• terminates upon happening of stated event and automatically reverts to grantor.
• 1) "To A for so long as ... or during .. . or until ... "
• 2) Characteristics: devisable, descendible, and alienable.
• 3) Grantor retains a possibility of reverter.

• Fee simple subject to condition subsequent-can be terminated bygrantor upon happening of a stated event.
• 1) "To A, upon condition that ... or provided that .. . or but if. . . or if it happens that . . ."
• 2) Characteristics: devisable, descendible, and alienable.
• 3) Grantor retains a right of entry or termination.

• terminates upon happening of stated event, then passes to third party.
• 1) "To A, but if stated event happens, to B"
• 2) Characteristics: devisable, descendible, and alienable.
• 3) Termination is automatic and future interest in third party.Life estates-measured by the life of one or more persons.

• Life estates-measured by the life of one or more persons.a. Life of grantee
• 1) "To A for life . .. "
• 2) Characteristics:
•  - a) Creates reversion in grantor or remainder or executory interest in third party.
•  - b) Life tenant entitled to ordinary uses but cannot commit waste

• Affirmative or voluntary waste-actual overt conduct that decreases value of estate.
• Permissive waste or neglect-failure to protect or preserve land.
• Ameliorative waste-change that economically benefits property.

follows fee simple determinable.

power to terminate follows a fee simple subject to condition subsequent.

resulting interest when grantor transfers an estate lesser than grantor had

• Vested remainder - created in ascertained person and not subject to condition precedent
• Vested remainder subject to complete defeasance - remainderman's interest could be cut short by condition subsequent
• Vested remainder subject to open - remainder's interest subject to dimunition because additional, unascertained person(s) can qualify as class member

Created in unascertained person or subject to condiction precedent, or both

Merger rule - destroy contingent remainder when one person acquires all present and future interests except contingent remainder

• Remainder to only grantee's heirs of a life estate in grantee not recogized
• Grantee takes in FS

Remainder in grantor's heirs becomes reversion in grantor

• Shifting executory interest - 3rd person's interest cuts short an interest in another person
• Springing executory interest - 3rd person's interest cuts short an interest in the grantor or his heirs

• Time 
• Title
• Interest
• Possession
• + clear expression of right of survivorship

• Each co-tenant owns individual part, with right to possess (use) the whole
• Interest is descendible, devisable, and transferable
• No right of survivorship
• Presumed co-tenancy

• Marital estate that can be created only between married partners who share right of survivorship
• Special protections include:
•  - creditors of one spouse cannot reach the tenancy
•  - a unilateral conveyance by one is invalid

• Possession - @ co-tenant has right to possess the whole, but no right to exclusive use
• Co-tenant may retain profits from own use of the property
•  - must share net from 3rd party rent/exploitation of the land
• @ co-tenant responsible for fair share of taxes/mortgage
• Co-tenant repairs is entitled to contribution, so long as notice is provided
• Co-tenant making improvements has no right to contribution unless partition occurs
• Co-tenant cannot commit waste

• Leased for a fixed, determined period of time
• Written lease required
• ends automatically at termination date
• Notice is not required

• Lease that continues for successive periods until termination by proper notice by either party
• created by express agreement, implication, or operation of law

• Lease for no fixed period of duration and terminable at will of either landlord or tenant
• requires express agreement that lease can be terminated at any time

• Hold over doctrine: T is permitted to live in a property after a lease term has expired, but before the landlord demands the tenant vacate the property
• Original lease conditions must be met, including the payment of any rents
• Otherwise, the tenant can be evicted at any time without notice

• T breaches duty and is in possession, L can:
• - evict through courts
• - continue relationship
• - sue for rent due
• If T breaches duty and is not in possession, L can:
• - Treat T's abandonment as surrender
• - Ignore abandonment and hold T responsible for unpaid rent
• - Re-let on breaching T's behalf and sue T for deficiency

• Duty to deliver possession at beginning of term
• Implied covenant of quiet enjoyment
• Implied warranty of habitability
• Prohibition on retaliatory eviction
• tort liability for common areas, latent defects, assumed repairs, public use, or defects in a short-term lease of furnished dwelling

• Actual eviction: L excludes T from entire premises and T does not have to pay rent-
• Partial eviction: L excludes tenant from part of leased premises and T does not have to pay rent 
• Constructive eviction- L's conduct causes premises to be uninhabitatble
•  - T must vacate within a reasonable time after giving landlord notice and time to repair
•  - T can lease and sue for damages

• Standard: Residential premises ust be fit for human habitation
• T may vacate and terminate lease
• T may make reasonable repairs and deduct costs
• T may reduce or withhold rent
• T may remain in possession, pay rent, and seek damages

• Assignee stands in shoes of tenant in relationship with landlord (privity of estate)
• Assignee and landlord liable to each other for covenants that run with the land
• Assignor (original T) and L are no longer in privity of estate but remain in privity of contract.
•  - L and assignor will be sexondarily liable to each other

• Absent an express restriction in the lease, T transfers less than the entire leasehold interest
• Sublessee and landlord are not in privity of estate or contract
• Sublessor (original T) and L remain in privity.
• Sublessee pays rent to sublessor, and L may terminate main lease for nonpayment of rent.

• Continuous: uninterrupted for statutory period
• Open and notorious: visible occupation of land to afford true owner notice and use as the owner would make
• Actual: actual physical entry onto premises
• Hostile: entry without owner's promission
• Tacking is permitted if there is privity

Grant of nonpossessory interest that entitles holder to use or enjoyment of another's land

Holder acquires right to use servient tenement independent of possession of another tract of land

Continuous: uninterrupted for statutory periodOpen and notorious: visible occupation of land to afford true owner notice and use as the owner would makeActual: actual physical entry onto premisesHostile: entry without owner's promissionTacking is permitted if there is privity

• Easement implied from prior or existing use if
• apparent at time of division, and
• use is reasonably necessary to the dominant tenement's use and enjoyment

• Landowner conveys portin of land, which is landlocked except over a part of grantor's remaining land
• Reasonable necessity for majority of states
• Strict necessity for minority of states

• Requires a deed of easement in writing and 
• signed by holder of servient tenement

servient owner materially changes position in reasonable reliance on easement holder's assurances that easement will no longer be enforced.

• Easements by necessity end when necessity ends
• unless: created by express grant (i.e. in deed)

• Destruction of servient land terminates easements on that land
• unless willful

Condemnation of servient estate by eminent domain

Writing given by easement holder to servient holder

Holder demonstrates by physical action an intent to permanently cease use

titles to easement and servient tenement vested in same person

Adverse, continuous interruption or use for prescription period

• A written promise (a contractual limitation) to do or not do something related to land
• Types - affirmative or negative

• Writing: original promise in writing
• Intent: original parties must have intended to bind successors
• Touch and Concern: covenant must relate to the use and enjoyment of the land
• Notice: actual, inquiry, or record notice
• Horizontal and Vertical Privity:
• -Horizontal: original covenanting parties were in a relationship independent of the covenant
• -Vertical: nonhostile connection between promisor and successor established by contract, blood relation, or devise

• Writing: original promise in writing
• Intent: original parties must have intended to bind successors
• Touch and Concern: covenant must relate to the use and enjoyment of the land
• Vertical Privity: nonhostile connection between promisor and successor established by contract, blood relation, or devise

• Written release
• Merger of benefited and burdened estates
• Condemnation of burdened property
• remedy: money damages

A promise that equity will enforce against successor of burdened land who has notice

• Writing: original promise in writing
• Intent: original parties must have intended to bind successors
• Touch and Concern: covenant must relate to the use and enjoyment of the land
• Notice: actual, inquiry, or record notice

• Original deeds contain common restriction but subsequent deeds are silent
• Reciprocal negative servitude: Subdivider had general scheme of residential development, including D's lot (via plat)
• - notice is required

Standard: Conditions so pervasive that neighborhood character changes prevent enforcement of equitable servitude

• Support of land in natural state: strict liability
• Support of land with buildings: strict liability if would have collapsed in natural state
• - otherwise negligence

• Underground occupant must support surface and buildings existing on date subjacent estate was created
• Liability for subsequently erected buildings requires negligence

• private claim that government regulation has effect of a taking:
• Categorical taking or all economic value
• Reasonable return test: no taking if owner left with reasonable ROI
• Diminution in value test: taking if no ROI

State power to reasonably control land use for health, safety, and welfare

• Essential terms must be in writing:
• description of property,
• parties,
• price, and
• manner of payment

• Part performance satisfied if buyer does 2 of 3 acts:
• takes physical possession 
• pays all or substantial part of price 
• and/or makes substantial improvements

• once contract signed, equity regards buyer as owner
• risk of loss placed on buyer

• Every contract for land contains implied covenant that seller will provide marketable title at closing

• Encumbrances (ex. mortgages, liens, eaements, restrictive covenants) unless waived
• Defects in record chain of title
• Adverse possession (title acquired by AP is unmarketable)
• Future interest held by unborn or unascertained person
• Existing violation of zoning ordinance

• theories of: misrepresentation, active concealment, or failure to disclose
• Warranty of fitness or quality: non except sale of new home

• Writing
• Signed by Grantor
• Reasonably identifies parties
• Reasonably identifies land

Yes

• Formalities followed (writing, signed by grantor, described parties/land
• Grantor's intention to make deed presently effective
•  - may be shown by manual delivery, notarized acknowledgement by grantor, recording, or other action showing intent
• Acceptance by grantee

A deed containing no covenants

A deed that warrants against all defects

• Seisin
• Right to convey
• against encumbrances
• quiet enjoyment
• warranty
• further assurances

Grantor has the estate he purports to convey

Grantor has authority to make grant

Grantor warrants there are no servitudes or mortgages

grantor promises grantee will not be disturbed by 3rd party

Grantor agrees to defend and to compensate grantee against claim of superior title

Grantor agrees to act reasonably to perfect title

• subsequent acquisition of property by grantor inures to benefit grantee 
• except against BFP

• Purchaser of property for value without notice
• Three kinds of notice:
• Actual
• Record/Constructive
• Inquiry notice