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PROPERTY OUTLINE
I. INTRO TO PROPERTY:
a. What is property?
i. Real vs. personal
b. Present and future interests:
i. Tenant has a present possessor interest
ii. Future possessory interest (whenever leasehold terminates)
iii. Reversion: if LL retains future interest
iv. Remainder: if Ll transfers future interest to 3
rd
party
c. Lease v. K
d. Lease:
i. Conveyance (present transfer)
ii. Covenants are independent
iii. Two principal promises:
1. Ts promise to pay rent
2. LLs promise of Quiet Enjoyment
iv. Common Law: T pay rents regardless of LLs fulfilling promise
e. K:
i. Covenants are dependent (protects other party)
II. CLASSIFICATION SYSTEM:
a. Term of Years: Tenancy for a term
b. Periodic tenancy: Fixed period of duration and continues automatically until
either LL/T gives notice of termination
i. Express (in writing)
ii. Implied (harder because of SOF)
1. Exceptions:
a. Equity
b. Month to month; year to year
iii. Automatically turns over unless notice of term is given
1. Common law notice must equal length of period
2. Advance and at end of month
a. Ex. 1 year = 6 month prior notice
c. Tenancy at will: no fixed duration
i. Lasts as long as either party desires
ii. No advanced notice
iii. Automatically ends if:
1. LL/tenant dies
2. LL transfers
3. May only be term in in less than 30 days (NY)
a. Right to term does NOT equal tenancy at will
d. Holdover tenancy: tenancy at sufferance
i. K overrides rule can always vary rule w K
1. NYRPL 232 (a)

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e. Lease v. license:
i. License:
1. Type of K
2. Terminable
ii. Lease:
1. A K with conveyance
2. Mutually enforceable promises
3. A conveyance of a present possessory interest
4. Dictates remedies and other issues
5. Breach -> LL/T court to enforce
III. DUTY TO DELIVER POSSESSION Hannan v. Dusch
a. Legal possession vs. Actual possession
i. Legal: whether someone has all rights
ii. Actual: in it or not
iii. American vs. English rule: both share duty to deliver legal
possession
1. American: LL has to only guarantee legal possession, not
actual
a. All T2 has is nobody has better right of possession
b. New T has to sue holdover tenant
2. UK Rule: implied duty to deliver legal and actual
possession
a. In order to sue breach of K: must show
i. Existence of a promise
ii. Breach (do not know until beginning of
term)
iii. Damages (remedy = not paying rent for
something not in possession of)
b. Policy Reasons for Duty to Deliver:
i. American Rule: not duty to deliver actual)
1. Someone shouldnt be responsible for tort of another
2. LL not at fault
3. T2 has sufficient legal and financial remedies to protect
themselves
4. Should be express covenant that LL has to deliver actual
and legal possession at the time and date + remedy
a. T2 should have a provision that rent is conditioned
upon delivery of both
b. T2 can request prior lease agreements
5. NYRPL 223(a): Remedies of a lessee when possession is
not delivered:
a. Implied actual and legal possession; lessee can
rescind lease and recover consideration paid
(statutory default rule)
6. Common law: American Rule -only need to deliver actual
possession
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a. Weigh out both rules but state our jurisdiction
governs the rule
IV. SUBLEASES & ASSIGNMENTS:
a. Privity of estate: LL (lease as conveyance) T
b. Privity of K: LL (lease as a K) T
c. Privity of K:
i. Anytime K with enforceable promises *sue for breach of K
d. Privity of estate: (theoretical relationship) legal nexus holder of reversion (LL)
and holder of possessory estate
e. Assignment: something is being transferred
i. T2 has privity of estate
1. Legal consequences:
a. LL sues T2 for breach of K
i. No privity of K between LL and T2?
1. Someone elses promise will be
binding on T2 even though T2 did
not personally make promise
ii. Does not automatically sever K relationship unless:
1. Release (LL must choose)
2. Full performance
f. LL can sue:
i. T1 (privity of K)
ii. T2: (privity of estate)
g. T2 -- T3: privity of K: goes away by
i. Release or full performance NOT DEATH
h. How to sever priorities:
i. Privity of K:
1. Full performance of promise
2. Satisfaction
3. Discharge
4. Innovation
5. Release (expressed) MUST BE EXPRESSED
ii. Privity of Estate:
1. Transfer of possessory interest
2. Assignment
i. Scenario examples:
j. Special promises = real covenants : runs with land because of legal
relationship between parties (each have interest in property)
k. Suretyship: Party can get a remedy (T1 sued for T2s failure to pay rent) T1
can sue T2 for paid rent (ought to be paying vs. person legally paying)
l. Subleases: Someone taking possession of lease and paying for it
i. Must be less than entire lease
ii. T1 as sublandlord
1. Has reversionary right at end of sublease (takes back into
possession)

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m. How to identify Sublease vs. Assignment: Ernst v. Conditt
i. Formalistic rule: Common law/Traditional
ii. Assignment = whole term with no interest or reversionary right
iii. Sublease: less than everything transferred
1. Look at what document does formally
iv. Modern Rule: Looks at intent of parties
1. LL vs. Assignee= always liable under privity of estate
v. Rights: LL v. T1:
1. Assignment or sublease
a. Modern Rule v. Formalistic Rule
b. Assignment:
i. LL v. T1 = POK
ii. LL v. T2 (if assumption) POK & POE
iii. Legal relationship between LL & T2
iv. K between LL & T1 remains
v. No automatic relaease
vi. No automatic assumption
1. Only assumption creates K
relationship between T2 and LL
c. Sublease:
i. LL v. T1 = POK & POE
ii. LL v. T2 = NONE
iii. 20 year 1 day
iv. No legal relationship between LL and T2
(subtenant) bc no POE
v. K between LL & T1 remains
2. Transferability: Consent: under what circumstances will act
imply required LL consent for assignment?
a. Implied provision (absent express provision)
i. LL argument:
1. Reliance on special skill Rowe v.
A&P
2. % rate
b. Default Rule: Transferability permitted (must see
specific evidence)
3. Reasonable OR Unreasonable Consent to Assignment:
a. Majority Rule: (traditional) May refuse consent
even if arbitrary
i. Argument:
1. LL should have control
2. Freedom of ownership
3. LL should only have to look to
original T
a. Respects the K (unambiguous
reservation of rights to LL) T
could have bargained for K
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clause Cts. Shouldnt rewrite
K
b. LL deserves increase of FMV
property
b. Minority Rule: (modern approach) LL must be
commercially reasonable absent an express
provision
i. Argument:
1. Lease is more like a K
2. LL can have control but must be
reasonable
3. T1 still liable
4. LL can have say over assignees
5. Good faith and fair dealing
6. Commercially reasonable
a. Proposed assignees financial
stability
b. Suitability of particular
property use
c. Alterations made by property
assignment
c. RSC: LL cannot unreasonably withhold consent
unless a freely negotiated provision gives LL such
right
Totally Silent General
Restriction
(Silent on
reasonableness)
Requiring
Reasonableness
Restriction
Restriction
allowing
arbitrariness
Majority Rowe v. A&P
Transfers so
long as K no
unconscionable
reliance on
factors
Cannot transfer
even if LL is
unreasonable
(Common law/
traditional)
Enforce K Enforce K
Minority Kendall; can
only transfer if
LLs refusal is
commercially
unreasonable:
Ex. Of
Reasonableness:
Financial
stability,
suitability of
particular
property use
Enforce K Enforce K
(Kendall)
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RSC Can always
transfer unless
K expressly
allows LL to be
unreasonable


n. Dumpors Rule: Unless expressly stated, if LL consents to assignment 1,
deemed consent to future assignments
V. THE TENANT WHO DEFAULTS: Self Help
a. Tenant In Possession vs. Tenant NOT in Possession
Whether LL can take
self help to retake
possession (forcible
entry/D locks) if T in
possession and defaults
(Berg v. Wiley) Common
law: LL can use Self-
Help so long as:
(1) LL legally entitled to
poss. (holdover T/breach
& reentry); (2) reentry is
peaceable
Whether after T abandons poss. Does LL
Have a duty to mitigate damages?
Sommer v. Kridel: YES
Kenneth Cole (NY: NO incl. residential)







b. Did T impliedly offer to terminate Lease?
i. Surrender and/or abandonment by T?
1. Express (agreement to surrender)
2. Implied (T abandonement/surrender)
ii. LLs acceptance:
1. Express
2. Implied (actions) intent; K standard
iii. If T offers to terminate Lease and LL accepts cannot sue for
wrongful eviction
c. Policy reasons: having a good alternative with no possible threatened force
(all self help is WRONG) never available to dispossess tenant. Want a higher
standard, not a SPEEDIER one)
VI. DUTY TO MITIGATE: Holy Properties
a. LL has options:
i. Do nothing and collect full rent from T (no duty to mitigate)
1. LL OK with empty space
2. LL able to collect rent from T
ii. Accept Ts surrender (term lease) re-enter and relet premises
1. Rent market Increase
2. LL wants to capture an increase in FMV
3. Tenants unable to assign/sublease
iii. Notify that LL is entering/reletting for Ts benefit (duty to
mitigate)
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1. Declining market or unable to collect rent from original T
2. LL doesnt want space empty
3. classic mitigation where LL decreases Ts damages
iv. Enforce a K provision giving LL right to mitigate
VII. INTRO TO BREACH OF COV. OF QUIET ENJOYMENT:
a. Express K contained covenant
b. Implied Majority rule implied cov of QE in all leases
c. Constructive eviction: Any act or omission of LL or anyone acting by,
through or under LL or having superior title, rendering premises
(interferes with beneficial enjoyment of premises)
d. Proving a breach:
i. Actual/Constructive?
1. If no:
a. Must prove constructive: any wrongful act/omission
of LL
i. Omission: wrongful
ii. Substantially unsuitable for the purpose
leased OR seriously interferes with
beneficial enjoyment of premises; AND
iii. T abandons
ii. NYRPL Sec. 227: When T may surrender premises
1. Building is (1) destroyed, or (2) injured by elements or any
other cause to be unfit for occupancy and no express
agreement made to contrary
iii. Implied Warranty exists for cov of QE
1. T does not have to pay rent when implied cov. Breach
VIII. MARKETABILITY: The standard of title the seller needs to deliver at the
time of the closing when is implied in all Ks of sale
a. May be modified
b. What renders title unmarketable
i. Chain of title defect
1. Forged deed
2. Encumbrances (more likely)
c. Marketable title:
i. Record Title: If went to the land records, shows who owns title but
not dispositive of ownership
ii. Insurance Title: What title insurance is willing to insure
iii. Marketable title: Quality of title; common law implies promise of
seller to convey title in sale
1. Buyer can terminate K and doesnt have to close if title is
not marketable
a. Seller has time to cure prior to closing
2. Law assures buyer a title free from reasonable doubt, but
not every doubt

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a. Reasons why need a standard of something less than
perfect:
i. Different to close because buyer could
always claim some imperfection
ii. Recognition that every property has some
problem
1. Standard of imperfection would be
impossible
iv. Marketable Title Defects:
1. Chain of title (rare) total title failures (Low probability,
high costs)
a. Fraudulent transfer
b. Forged deed
c. Incapacity
d. Duress
e. Improper acknowledgement
f. Deed was not delivered
2. Encumbrance (more likely): Reduces value of the property.
Third party rights that someone might have relating to:
a. Monetary: Right to money that creates a title
problem
i. Lien: describes certain rights of lienholder
that give them the right to sell property in
satisfaction related to debt:
1. Not recorded in land records
2. Mortgage lien (voluntary
transaction)
3. Unpaid taxes (fed & state)
4. Mechanics liens (involving work on
house)
ii. Mortgage: if theres not debt, mortgage is
meaningless
b. Possessory (tenant): lease commercial real estate
value of property is relative to lease
3. Uses:
a. Easement:
i. Neighbor with easement across property
interferes with use
ii. Zoning law NOT encumbrance
1. One of reasons why every buyers
able to walk away
2. Has to be something about title that
causes reduction of value of property
iii. Encroachment: illegal intrusion upon
property
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1. Something physical built on some
property you dont own
a. Fences, air conditioners,
garage
b. Garage:
c. Lot A v. Lot B (with garage
encroaching on A)
i. Lot A is unmarketable
bc Bs encroaching
ii. Lot B is NOT
unmarketable but may
be a problem (if a
goes to court)
iii. BUT: A cannot
interfere with Bs use
of any portion of
whats inside his lot
square
iv. As prop is
unmarketable because
piece of garage
interferes with use
v. (unrecorded deed =
litigation because no
record title)
vi. Justification =
visibility
b. Property unmarketable because garage interferes
with use
c. Unrecorded deed = possible litigation because no
title
d. Common law: marketable title is implied in ALL K
e. Default rule of free transferability
d. Contractual variations on standard of marketability:
Seller covenants to: Buyer or
Deliver marketable title VERY buyer friendly
Deliver marketable title subject to
recorded Citibank mortgage
Buyer doesnt have to close if
anything less than Citibank
mortgage
Deliver MT subject to all
encumbrances of record
:/ Buyer cannot use encumbrance of
record to get out of closing
(*Lohmeyer)
Deliver MT subject to all
encumbrances
Very limited on buyer getting
out of closing
*Lohmer ct reads in so long as not violated:
Restrictive cov. Interferes with use and renders title unmarketable
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Any encumbrance of record that was violated = unmarketable title
Rockerfeller: POE expands 3
rd
party benefit pres covenants? YES.
Common law says: NO, cov. does NOT run
for grantee
Frimberger Cov. Against encumbrances: violation of
land use does not equal breach of cov.
Against encumbrances
Brown v. Lober Cov. Of Quiet enjoyment: must be
dispossessed and must have paramount
title: Better title does not satisfy Q.E. Must
have BOTH
Lohmeyer Existence of restrictive cov. Renders title
unmarketable: *read in so long as not
violated

e. Pre-closing doctrine: When B accepts deed at closing. Buyer deemed to be
satsifyed with S obligation: K MERGES INTO DEED.
i. Deed has promises
1. Marketability only means during executor period
a. Executor Period: Ex. Grandpa signs K and dies,
will says leave property to Randy & personal
property. If GP was seller, did not have real
property interests (equitable) and therefore Peter
gets $ proceeds, because this equals personal
property
2. All promises after closing = MERGED
IX. DEEDS: Any instrument/transfer may or may not contain promises. Promises
allow opportunity to sue Seller under breach of cov.
a. Minimum Deed requirements:
i. Written instrument (pursuant to SOF)
ii. Signed (by seller)
iii. Delivered
b. TYPES OF DEEDS:
i. General/Full Warranty: has most promises
ii. Special Warranty: Warrants against grantors own acts
1. Only relating to encumbrances allowed by grantor
iii. Quit Claim Deed: No warranties, promises, money transfer.
Instant conveyance
c. DEED COVENANTS:
d. Two types of Deed covs.:
i. Present: Breach occurs at moment of CLOSING
ii. Future: Breach occurs at moment POSSESSION is interfered
e. Present:
i. Covenant of Seisin: Right to convey title
ii. Covenant of Right: (same as above)
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iii. Covenant against encumbrances: Property is free of encumbrances
(pre closing concept re: marketability, cannot sue for
marketability)
f. Common Law: Present covenants are NOT deemed assigned because of
(1) SOL and (2) Doctrine of merger
g. Rockerfeller: Present covenants are implied COA for assignees
h. Future:
i. Covenant of Quiet Enjoyment:
1. An interference of buyers possession; WITH
2. Person holding better title than buyer
ii. MUST have both happen (Brown v. Lober)
1. Cannot sue under present cov. Bc of:
a. SOL
b. Common Law doctrine: made something expressed
thats otherwise implied
iii. Covenant of further assurances: Promise to help if deeds
rejected at recording office for whatever reason
1. Warrants title to fix imperfections and make absolute
statement no encumbrances
iv. General warranty: grantor is only responsible for losses against
lawful claims & compensates grievances for loss due to superior
title
i. Deed Cov. Cases:
i. Lober: Cov of Q.E. (must have both elements)
ii. Frimberger: Cov against encumbrances
1. Breach of K claim:
a. Must prove existence of promise; AND
b. Breach of that promise (violation of land use does
not = breach of cov. Against encumbrances)
iii. Rockerfeller: Benefit of present cov.
1. Does third party get benefit of that promise?
a. SOL starts at closing: NY 6 Years
b. Real covenant runs with the land
i. Common law: says NO.
X. RECORDING STATUTES: Every conveyance NOT recorded is VOID
against subsequent purchaser and whose conveyance is FIRST duly recorded
a. Person who cares about ownership is the one either before or after
closing.
b. Good faith : (1) paid money; (2) didnt know about it; (3) recorded in
good faith
i. Why:
1. Issues with real estate
2. Proof of ownership
3. Title indexing/recording systems (relies on indexing)
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c. Jurisdiction: No matter what jur. A wins if they recorded first and B wins
when A fails to record. Recording statute only says under certain
circumstances other conveyances is void.
i. Can they use recording statute to change result?
1. Always read recording statute from Bs perspective.
2. If B has actual knowledge, A always wins.
ii. Bona Fide: Good faith and valuable consideration
1. Deserving of protection
2. Every conveyance is good against the good guy
3. At the moment of conveyance, did B know??
iii. Exception: Shelter Rule:
1. Without: A will always win because A recorded)
2. If B wins, C will get the benefit of Bs win v. A, C not
disadvantaged by As recording because if B wins, A will
always go run and record but B could never sell it.
a. For recording statute to work: B has to be winner all
the time until they sell.
iv. Types of Jurisdiction:
1. Common Law: A always wins
2. Race Jurisdiction: Who recorded first?? (NY is a RACE
jur.)
3. Notice Jurisdiction: No recorded notice = bona fide
purchaser, can undo.
a. Actual: Whats ACTUALLY in your brain
b. Constructive: (implied)
i. Record notice: you wouldve known if you
looked, doesnt matter if they did not look, it
was there
ii. Inquiry Notice
4. Race Notice: Same elements of notice but also:
a. Prove didnt know (deserving of justice)
b. Prove they recorded first
c. Have to be a bona fide purchaser
d. Review + Deed:
i. Use of privity of estate: to show transfer of title and possession
1. Conveyances satisfy POE
a. Conveyance: Written instrument where youre
creating transferring mortgaging estates and in land
i. Must be in writing
ii. MAY be recorded
b. There is NO conveyance other than those by
LAW
i. A lease doesnt need to be recorded
(because T is in possession)
1. Protected by taking possession
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ii. Buyer cannot use recording statute because
lease doesnt need to be recorded
ii. Assignment is 3 separate transactions
1. Original lease
2. Sale
3. Subsequent assignment to T2
a. Transfer of title and Transfer of possession is POE
i. Recording statute can apply because applies
to all conveyances and a lease is a
conveyance (even though cannot be
recorded < 3 years)
b. Policy: intent is for recorded instrument to
convey/notice to subsequent purchaser (deed has to
describe property so someone can find it)
iii. A recording deed gives constructive Notice (Luthi)
1. Mother hubbard clause: describing an unnamed property
thats no longer described
a. Protects any errors contained in the lease
b. Sweeps in other parcels not specifically described
c. Describes property in general language (make sure
everything in chain of title was recorded)
iv. *Anything REFERRED to in recorded document (but not
recorded) you are in notice of
XI. ADVERSE POSSESSION: Moment in Time when TO loses right to bring
COA for ejectment to AP because SOL has run
a. TO may bring judgment against wrongful possessor
b. AP: COA of Ejectment:
i. Elements:
1. D is wrongfully in possession
2. P has either true ownership and lawful right of possession
OR better rights than the other party (have to trump the
other party)
a. Policy reasons for SOL:
i. What moment in time does D become
unlawful possessory?
1. At time he walks on property
c. AP1 v. AP2 DOES NOT EXIST. First in time, first in right.
d. AP becomes TO when clock strikes midnight of last day of last year
applicable to SOL
i. Punishes sleeping owner and incentivizes to have doctrine to
actually claim it as theirs
e. Duration:
i. Continuous: Was possession of property in a way TO would?
Similar nature
1. (like, nature & condition, i.e. summer house) Kunto
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2. Tacking: Credit for prior possession of AP is permitted if
succeeding occupants are in privity
3. Succession of trespassers even with no interval will allow
defeat of title
ii. Uninterrupted
iii. Length of Time

f. Possession:
i. Actual (i.e. enclosures, cultivation, improvements)
ii. Open & Notorious (notice): If AP is punishing sleeping owner, req.
AP to be MATERIAL
1. Material (imputed): or major encroachment or possession
(if AP occupied large piece of land, no need to survey to
see it)
a. Ex. 10 Feet = Material
2. Minor (actual) Somehting really small, no impute to know
a. Manilo: Not exceeding several feet 15 is minor, no
way to know
iii. Exclusive: Looking for someone to act like TO
1. Look at intent first (either look or you dont)
iv. Hostile & adverse: without consent
1. Hostile: Do Not have permission
a. Jur. With intent requirement AP mistakenly thought
it was their land vs. trespasser
b. Main doctrine: jur. Req. in order to meet hostile AP:
someone KNEW they didnt own the property
2. Claim of right
a. State of Mind of AP
b. Use in a similar manner that TO would
c. Uninterrupted
i. (intent to claim property as your own
reasonable basis for belief that AP is True
Owner (have to THINK you own it): *Jur.
Req: State of Mind: AP know they didnt
own property; Others require AP had good
faith
ii. NY: (Legislative enactment): Requires a
reasonable basis for relief, not enough to be
there without permission
iii. TACKING: Squatters shouldnt profit from
trespassers (Raising claim v. others several
ppl received record title of tract on mistaken
belief of anothers permits tacking)
1. AP1 to AP2 does NOT start SOL
every time

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3. Objective intent
g. Exception: Constructive possession (productivity theory) why should TO
benefit through AP if TO not making land more productive
h. Disabilities:
i. Tolling statute: (Stops clock) TO can bring COA after disability is
removed
1. Disability statute: whether that extends period of time,
helping TO, (where TO gets benefit)
a. Time period
b. DO NOT be distracted by subsequent disability*
XII. ACQUISITION OF PROPERTY:
a. Purchase of Sale
b. Adverse Possession
c. Gift
i. Transfer
ii. Inter vivos transfer v. testamentary disp.
1. Requirements for an Effective transfer of a GIFT:
a. Intention:
i. Oral evidence
ii. Difficult to prove
b. Delivery
i. Actual/manual physical act
ii. Constructive
1. No constructive delivery if item is
a. Present
b. Capable of being there
iii. Symbolic: implies the thing is incapable of
being delivered (if watch can be delivered,
writing is ineffective)
c. no consideration
d. Acceptance (presumed)
e. Irrevocable
iii. Ex. Lifetime gift of reversion (giving property when lease is up)
1. Gift = testamentary
2. Life estate ending and future interest
3. Reserving reservation = property law and conveyancing
(NOT const. delivery)
iv. Inter vivos gift: Present vs. future gift
1. Intent: look at all forms: whether gift was effective or NOT
XIII. ESTATE CLASSIFICATION SYSTEM: What isnt conveyed by grantor, is
retained. (Whatever property interest you have retained, you can transfer)
a. Transfer:
i. Inter vivos
ii. Will
iii. Intestacy
b. Fee Simple Absolute: Cannot have restraints on alienation or transfer
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i. Defeasible fees: coming to an end
c. Fee simple determinable: Future interest applies automatically
i. Future interest: Possibility of Reverter (POR) retained and held by
grantor/creator
ii. Ex.:
1. O to A and her heirs until A divorces; then to O
2. O to A and her heirs so long as A does not divorce; then to
O
3. O to A and heirs during her marriage and until she
remains married; then to O
4. O to A while not divorced; then to O
5. O to A so long as As married; then to O.
d. Fee simple subject to a condition subsequent: FSSCS: Manually applied
i. Future interest: Right of Entry, or Power of termination
(ROE/POT) retained and held by Grantor/creator. The holder must
actually do something to assert the right
1. Either grantor expressly reserves it, or its silent
2. Ex.:
a. O to A; but if A divorces, then to O
b. O to A; provided that A doesnt divorce, but if A
divorces, then to O
Estate Words of
Purchase
Words of
Limit
Duration Future
interests
Fee simple
absolute
To A And his heirs Forever N/A
Fee Tail To A And the heirs of
his body
So long as A
can have heirs
Reversion or
remainder
Life estate
(restraint on
alienation)
To A For life (life of
A)
Life of A Reversion or
remainder
Term of Years
(non-freehold)
To A For X years Period
measured by
the calendar
Reversion

e. No limits, unless a will clearly states intent of life estate, court will infer FSA
because of no limits
i. Competing interests between present interest holder (life estate)
and future interest holder (Remainderman)
f. Transferability of future interests:
i. Common law: NO inter vivos transfers of POR or ROE
g. Exception: Holder of future interest could transfer POR/ROE to the holder of
the present possessory interest
h. Review:
i. Owner of estate could convey part or ALL of what owner has, but
not more
ii. Whatever isnt conveyed by grantor is retained
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iii. Grantor can transfer retained piece to a 3
rd
party (inter vivos,
will, intestacy)
XIV. CO-TENANCIES:
Concurrent ownership interests
Tenants in common (TIC)
Joint tenants
Separate but undivided interests in the whole
Tenants by the entirety
a. Joint Tenancy: With rights of survivorship: Only have meaning at death
i. Automatically goes to joint tenants by operation of law
ii. Each JT has right of survivorship (if 2 jts one dies, the other
because the SOLE owner of jointly held interest)
iii. Creation: time, title, interest, possession
1. Single instrument, at the same time for all tenants
iv. Severance: Normally results in the creation of a TIC Riddle v.
Harmon
1. Rule: One joint tenant may unilaterally sever a joint
tenancy without the use of an intermediary device
2. Policy: Cant hand dirty to yourself
3. Common Law: Need an intermediary device (like
strawman) in order to transfer and unilaterally sever the
joint tenancy
a. If wanted a TIC: will transferring the estate OR a
defeasible feee (FSD or FSSCS)
4. Could be destroyed by a transfer to a 3
rd
party
5. Can uniltaterally destroy JT and turn it into TIC

v. Exists: moment of creation and up until party dies
vi. Mortgage: Survivor ship?
1. Title theory: treated as conveyance and thus severs
2. Lien theory: does not sever (survivor might go free and
clear)
b. Tenancy by the Entirety:
i. 4 unities + marriage: time, title, interest, possession, marriage
1. unless otherwise indicated
ii. Severance: divorce severs TBE
iii. Point: status of parties when possession is taken and HOW
possession continues
c. Intestate: Without a will
i. Survivorship rule of the state would send it to the heir.
d. Note: Mortgage/Judgment liens are NOT property transfers and therefore DO
NOT SEVER




18
XV. PRIVATE LAND USE ARRANGEMENTS:
a. Background: Some PLU are just the LAW of the covenants
i. Running with land; and/or
ii. Easements
b. Types:
i. Easement: A is given the right to enter upon Bs land
ii. Profit: A is given the right to enter upon Bs land and remove
something attached to land
iii. Negative Covenant: A is given the right to enforce a restriction on
the use of Bs land
iv. Affirmative Covenant: A is given the right to require B to
perform some act on Bs land
v. Covenant: A is given the right to require B to pay money for
upkeep of specified part.
c. EASEMENT: A given the right to enter Bs property.
i. Types:
1. Writing:
a. Express
i. Grant (adds to the title records)
ii. Reservation (holds something back) Willard
b. Elements for Creation of Express Easement:
i. Intent to Create: Yes, generally but
estoppel; are not created by an expressed
reflected intent
ii. Notice: Yes. But with exception
iii. Writing: Yes for express, but also estoppel,
implication (prior existing use/recording)
iv. Horizontal/Vertical Privity: N/A
v. Touch and Concern: N/A fulfilled by
Appurtenant (general use)
vi. Remedy: Specific performance/damages
c. *A Deed without any EXPRESSED reservation
cannot have ANY IMPLIED grants/reservation
(subject to exceptions)












19
Easement in Writing: Express
Grant: B owns Lots 1 and 2, sells Lot 1 to A; A would like an easement over lot 2
Easement is a non-possessory right to property. (One estate is burdened and one is not)
Dominant estate: Grantee (one given the use privilege)
Servient Estate: Grantor (one burdened by the use privilege)


Easement by Reservation:
Reservation: A owns Lots 1 and 2, A sells lot 2 to B, but wishes to have an easement to
cross lot 2



2. Non-Writing:
a. Easement by Estoppel
b. Easement by implication
i. Implied from prior existing use
ii. By Necessity
ii. Privity of estate effects anyone who is granted or takes
possession of the property (Willard) CHURCH CASE
iii. Privity of Estate possessor gets benefit of Cov. Of QE because
runs with the land
1. Willard cannot claim breach of QE because not disposed
a. Easement is not dispossession; just a grant to use.
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iv. Common Law: One cannot reserve an interest in property to
a stranger to the title (Balance in favor of giving effect to
grantors intent)
1. Rule: Can be in place to frustrate grantors intent (LL
estopped to object to the easement because gives express
consent to it in original deed)
d. KINDS OF EASEMENTS:
i. Appurtenant: Benefits the owner OR possessor of a particular
parcel of land: easement runs with land just limited for any church
(Willard); OR
ii. Gross: (for personal use)
1. If move down the block, can still use the parking lot?
a. Cannot pass to another unless expressly agreed to
i. Non-writing Estoppel: Use of land by
permission
b. License v. Easements:
i. Easements: do not need written document,
not easily revocable
ii. License: could negate document, easily
revocable
c. Lease v. Easement:
i. Lease: Rent, time limited, larger
rights/interests: SOF
ii. Easement: No time limit, limitation of
rights/interests not subject to SOF
e. QUASI-EASEMENTS: One part of a persons land benefits another
party of another persons land
i. 2 step Process in Compliance with Common law:
1. First: Cannot reserve easement for benefit of 3
rd
party
under common law
2. Church transfers property to Peterson, reserving easement
for themselves (Willard)
f. EASEMENT CREATED BY (RIGHT OF WAY):
i. Express written grant
ii. Implication: (not written)
1. Use situation, easement implied from prior existing use
a. Step one:
i. Is it a written easement? No (because it
wouldve been reservation instead)
1. Implied E by res by PEU: grantor
retains the benefit
2. Implied E by G by PEU: Grantee
receives the benefit
2. Quasi-Easement: when an owner utilized part of his land
for the benefit of another part:
a. Implied only if it is strict necessity
21

iii. Estoppel: Licensor may not revoke license and restore his premises
to former conditions after licensee exercises privilege given by
license and erects improvement at considerable expense
1. Created when owner or tenant, to which right is claimed to
be appurtenant or those under whom he claims title, has
used a way over the land of another for as much as 15
years.
NOTE: Encumbrances are enforceable property rights which effect land all classified by
pecuniary, use, possessory, and rights and restrictions related to use (any 3
rd
party right
to use in possession in right or lien, and tenant in his right of possession)
iv. Implied E by PEU (by RESERVATION) vs.
v. Implied E by PEU (by GRANT)
1. Because conveyance requires a description of what is
conveyed, if deed says ENTIRE property is deeded failing
to RESERVE an easement would invalidate. Whereas,
grant of easement ADDS to the deed.
2. A deed with full cov. Of warranty and without an express
reservation, CANNOT have a reservation by implication
unless easement claimed is one of strict necessity (within
meaning)
vi. Majority: Only show reasonably necessary/intent for both implied
easements by reservation and grant
g. Easement by Prior Existing Use:
i. Common ownership of the dominant and servient estate
ii. Use by the common owner of one parcel to benefit the other (quasi
easement)
iii. Apparent
iv. Continuous; AND
v. Necessary
1. Modern rule: reasonably necessary
NOTE: If there is a GWD with cov. Of no encumbrances, is there an implied easement?
Common Law: does not get benefit of Promise, therefore it is likely to have an
implied easement
Rockerfeller jurisdiction: (3
rd
party benefit so long as within SOL)
o If within SOL:
3
rd
party is entitled to benefit of present cov of no encumbrances in
GWD, and therefore it is unlikely there is an implied easement
within the deed, therefore 3
rd
party can sue
BUT , however, if easement is STRICTLY NECESSARY
(QUASI) then it must be required (Van Sandt- Factors)





22
XVI. BENEFITS AND BURDENS OF RUNNING COVENANTS:
a. Privity of Estate:
i. Horizontal Privity: Relationship between coventor and coventee:
1. LL/Tenant
2. Mutual Privity (Easement)
3. Instantaneous
ii. Vertical: Subsequent transfers by B to C (POE)
1. Legal relationship
b. Horizontal and vertical has POE because POE is legal relationship of the
holder of reversion
i. Rockerfeller: voluntary transfer of title

CASES NEEDED TO KNOW:
Ernst v Conditt; Identify Assignment v. Sublease: Traditional/Majority Rule: what is IN
the contract
Kendall v Pestana; Assignment/Subleases: Can LL reasonably withhold consent.
Kendalls lease was silent, therefore minority jurisdiction held that so long as
commercially reasonable. Factors include: Financial stability of proposed assignee,
known to default, etc.; vs. Majority rule that says LL can arbitrarily withhold consent; vs.
RSC: LL cannot unreasonably withhold consent, unless theres a freely negotiated
provision in the K to the contrary
Lohmeyer v Bower; So long as not violated read in provision by the court that held that
the existence of a restrictive covenant renders title unmarketable
Frimberger; Cov. Against encumbrances: violation of a land use does not equal a breach
of covenant against encumbrances
Rockafellor; 3
rd
party benefit to present covenants so long as SOL has not run vs.
Common Law: which states that 3
rd
parties are not entitled to the benefit of present
covenants but only future covenants which run with the land (Q/E)
Board of Ed v Hughes; Wild Deed Case: Didnt impart constructive notice; this was
when a deed was never signed so it was never properly recorded; didnt actually know in
a race jurisdiction who records first. Benefit was given to the second purchaser who
properly recorded the deed.
Howard v Kunto; AP: continuation of a summer house; AP is satisfied by Duration:
Continuous; Uninterrupted; Length of Time and Possession; Actual, Open and Notorious
Material vs. Minor (15 vs. 10ft which is major to the courts Manilo); Exclusive-
similar in use to the TO; Adverse: without permission and Hostile: Claim of right: Main
doctrine says AP knew that they didnt own property; and Intent Jur. Is when AP has a
mistaken belief that he owned property;
Gruen v Gruen; Painting inter vivos gift (future gift); Gift is satisfied by: INDIA: Intent,
Delivery: Actual vs. Constructive: if it can be delivered it SHOULD be delivered;
Acceptance (presumed); No consideration; and Irrevocable.
Mahrenholz v County Board; depends on understanding whether or not the holder of the
future interest can transfer it. Can POR or ROE be transferred; Legal question: Does the
deed transfer a FSD or an FSSCS; Fact question: was the condition breached?
Words such as so long as while during all equal FSD, Words provided that but
however.. equal FSSCS
23
Grantor's decedent conveyed property interest to plaintiff, who sought to quiet title.
Defendant grantee opposed action, alleging as grantor never reentered property he did not
own property and could not convey interest. Property deed conveyed a defeasible fee
simple to grantee and created future interest in grantors. Court held resolution of matter
depended on construction of deed's language. Court held if grantor had only naked right
of reentry for condition broken, then he could not own the property until he had legally
re-entered the land, but if possibility of reverter existed, then he owned property as soon
as it ceased to be used for deed's purpose. Court held word "only" contained in granting
clause established grantor intended to create fee simple determinable rather than fee
simple subject to condition. Court held plaintiff entitled to pursue claim.

OUTCOME: Court reversed and remanded lower court's decision, holding inclusion of
the word "only" in the granting clause of the fee simple in deed created a fee simple
determinable. Therefore, plaintiff entitled to pursue claim for quiet title even though
grantor's inheritor had never reentered property.

Rule:
When you have the word revert and only you can assume that it is a FSD even though
that is not the traditional wording.
When the provisions of a fee simple which specify how possession is returned contain the
language that the grantor "may" re-enter the land, this triggers a permissive return rather
than a mandatory return.

Willard v First Church; Exception to Common Law: The common law rule is that one
cannot "reserve" an interest in property to a stranger to the title.
Cannot create an easement in a third party, it violates the livery of seisin. Only grant or
reservation can be used to create an express easement. (still correct in the majority of
courts)

Exception:
A developer provided, in its subdivision proposal, that certain easements for streets
were reserved to its assigns and successors. Faced with a challenge to the easement
based on the rule against reservation to a stranger, the court noted that it was not
justified in resorting to technical refinement as to the meaning of "reservations" to
defeat the manifest intent of the parties. It held that the complaining landowner was
estopped to object to the easement because of his express consent to it.
Under certain circumstances you can make certain restriction by reservation for a third
party.
- The plaintiff did not read the deed, he should have known because the church
used the parking before, and he did not record against it.

Holbrook v Taylor; Easement by Estoppel [Hollbrook v Taylor]
Issue:
1. At what point does an oral license become irrevocable?
2. If a license is irrevocable then its the same as an Easement?

24
Rule: An exception to the statute of frauds by estoppel.
1. Easement by Estoppel (an exception to Statute of Frauds)
The owner of servient parcel permits another to use land, the other changes
position (e.g., making substantial improvements) in reliance upon the permissive
use, and it was reasonable to foresee that the other might change his position.

Van Sandt v Royster; Easement by implication had been created by the common
predecessor:
Common Law/UK rule:
Bermans Note: This should be referred to as the traditional rule,
it is no longer the majority rule.
Implied Easement by Reservation only if it is strict necessity;
Implied Grant of an Easement if apparent, intent is clear (it
only has to be reasonably necessary)
Why different standards between Implied E by PEU (by
reservation) & Implied E by PEU (by grant)?
Reservation = strict necessity under UK rule
Grant = reasonable necessity with intent
--there is a clear distinction between implied grants and implied
reservations
--To say that a grantor reserves to himself something out of the
property granted, wholly by implication, not only offends the rule
that one shall not derogate from his own grant, but conflicts with
the grantors language in the conveyance, which, by the rule, is to
be taken against him, and is wholly inconsistent with the theory on
which our registry laws are based.
Simply put: Conveyance requires a description of what is
conveyed. If the deed says that the entire property is deeded,
then failing to reserve an easement would invalidate the
registry system. That is way it must be a strict necessity
standard.
A reservation of an Easement is in derogation of the express
words of the grant; whereas a grant of an easement doesnt
contradict the grant, but rather adds to it
--The correct rule is, we think, that where, as here, one grants a
parcel of land by metes and bounds, by a deed containing full
covenants of warranty and without any express reservation, there
can be no reservation by implication, unless the easement claimed
is one of strict necessity, within the meaning of that term
Modern (now majority): only show reasonably necessary/intent
for both Implied Easements by Reservation and Grant

Easement by Prior Existing Use:
(i) common ownership of the dominant and servient estate (at some
time in the past) AND
25
the parcel was severed into 2 or more parcels in connection with
conveyance

(ii) use by the common owner of one parcel to benefit the other (i.e., a
quasi-easement)
--Quasi-Easement: if the owner didnt own both parcels, it would
be an Easement
(iii) which was apparent (or reasonably discoverable) [not the same as
VISIBLE)
(iv) continuous, and
(v) necessary
Necessity: this easement does not end when necessity ends. Use does
not have to continue. Dont use it, then you dont lost it
Bermans note: There are unusual circumstances that allows
easements to go away, but for this class and the exam they do not go
away.
Othen v Rosier; No writing: easement by Necessity

Easement by estoppel (hollbrook v. taylor)
Easement by implication
Easment implied from prior existing use
o Van sandt v. Royster
Easement by necessity (othen v. rosier)


2008 Final Exam Study Topics:

1. Public Records:
a. Does not assure searcher that a deed in the chain of title has not been
forged. No way to determine whether it has been forged. In order to
ensure chain of title, buyers should purchase title insurance.
2. Public Records of Multiple Liens (within close time frame)
a. B on notice of both liens, which would take subject to each.
b. Citibank should be concerned because mortgage on property may be junior
to the liens and default by B, Citibank will be junior to the other lien
holders.
3. Writing that satisfies SOF:
a. SOF precludes enforcement of a K for the sale of land unless it is
evidenced by a writing. Minimum requirements include:
i. Signature of the party to be bound
ii. Identification of the property
iii. Purchase price
b. Does the Check satisfy all requirements?
c. If SOF is not satisfied, may P enforce K in equity?
i. Required to prove:
1. Oral K existed and
26
2. Reasonable Reliance: Changed his position in reasonable
reliance on the K so that enforcement is required in order to
avoid injustice.
ii. Evidence?
1. Oral K: Check, testimony claim, etc.
2. Reliance: Change in position due to quitting job, reasonable
reliance?
iii. Evidence against:
1. Unreasonable reliance: Written K contemplation and signed,
acted immediately, no reason to anticipate quitting job, oral
offer of 2x more than FMV might be hesitant to follow
through
iv. Return to pre-K conditions?
4. Rescinding K: 2 Bases for Rescission:
a. Breach of implied covenant to deliver Marketable title:
i. MT:
1. Absent K provision, CL applies
2. CL implied on S covenant to deliver MT
3. Zoning violation renders title unmarketable (Lohmyer)
b. Breach of Duty to Disclose Known Defect:
i. CL Jurisdiction: no liability on this basis
ii. NY Jurisdiction: Duty to disclose only if S created the condition,
latent, and material.
1. If Jur. Imposes duty to disclose: Buyer must establish S
knew, latent and material
a. Actual Knowledge: Buyer knew if went to doctor as
a result of problems experiencing
b. Latent: Did parties notice defect pre K of sale?
c. Material:
i. Jurisdiction may determine materiality based
on whether important to this buyer or to any
buyer
ii. Subjective standard: only care whether
important to buyer.
1. Does S have reason to believe B
would care? If so, B prevails
iii. Objective standard: Whether reasonable
person would be bothered by the odor?



5. Defeasible Estates:
a. Go through analysis of each estate
i. Fee Simple Absolute
ii. Fee Simple Determinable
iii. Fee Simple Subject to Condition Subsequent
27
b. Determining an estate:
i. Whether the condition stated in the deed is a valid condition or an
invalid restraint on alienation:
1. Did the Grantor intend to convey a defeasible fee vs. Fee
simple Absolute?
a. Deed construed to effectuate intent of the grantor but
ONLY if the Grantors intent does not violate public
policy (RSC1 in fact pattern says that any condition
that constitutes an invalid restraint on alienation will
be void, and deed will then be construed to pass as a
fee simple absolute because a fee simple absolute
contains no limits or restraints on alienation)
i. Restraint on alienation is invalid if it is in
conflict with the interest created
1. Facts: Condition requires grantee to
use property for its own purposes
a. Condition on use (not outright
restraint on alienation)
ii. If the condition is valid, whether it creates an estate that ends
automatically upon breach of the condition or an estate that ends
upon the exercise of the right to reclaim the property by the holder
of the future interest
1. FSD or FSSCS?
a. FSD: terminates automatically on the breach of the
specified condition
i. Language used: So long as While
during or other language indicating a
determinate temporal duration.
b. FSSCS: terminates only upon entry by the owner of
the future interest (ROE or POT).
i. provided however but if and on
condition that
2. Here: Words revert immediately to the grantor strongly
suggest that the grantor intended an automatic termination
of the present interest upon breach of the condition.
a. However: Words but if suggests FSSCS was
intended.
i. Automatic forfeitures are disfavored
ii. If intent is clear, FSD is most likely.







28
6. EASEMENTS:
a. An easement is a non-exclusive right to use property owned by another
person for a particular purpose.
i. Express easement?
1. An easement is an interest in land. SOF requires
conveyances of interests in land to be evidenced in writing.
2. No writing evidencing the easement in these facts, A does
not have an express Easement
a. Exceptions to writing requirement:
i. Operation of law (not subject to SOF)
1. Easement by necessity, easement
based on PEU, or easement by
prescription.
2. Not Estoppel because facts do not
suggest any prior permission, nor
change of position.
b. Easement by necessity to continue use of Lot b?
i. E.N.: must establish:
1. Common ownership of her lot (dominant tenement) and the
lot she is using (servient tenement) at some point in the past
2. Strict necessity Othen:
a. Claimants property is landlocked without the
easement and llandlock problem was created by the
severance of the ownership of the two parcels
involved.
i. Satisfied through common ownership of 2
lots
1. Other access to outside world through
diff means? Accessible pathway
(highway) precludes in all
jurisdictions easement by necessity
a. Inadequate, difficult, or
costly?? (Counter argue)
c. Easement based on prior existing use of lot b? (offers an alternative basis
upon which to claim an easement is PEU. Requires:
i. Common ownership of two parcels involved in dispute
ii. Use by common owner of one parcel to benefit the other (quasi-
easement) apparent or reasonably discoverable and continuous;
and
iii. Necessity.
1. Does not necessarily require STRICT necessity but may
instead only require REASONBLE necessity
iv. Jurisdictions:
1. Modern approach: reasonable necessity
2. Historic: reasonable necessity in case of implied grants but
strict necessity in the case of implied reservations