<REAL PROPERTY> MBE

 SOF: writing, signed by party to be charged, essential elements (parties, property description, terms of price and payment). Deed (to
convey RP) doesn’t have to satisfy SOF but must be in writing, signed by grantor, description of property, grantee, words of transfer. Even if
condition can be completed w/in 1 year, transfer of RP must be in writing.
 Note that 땅주기로 약속했어도 나중에 딴사람한테 줘도됨
1. Ownership of Real property: can transfer via 1. sale, 2. gift, 3. devise via will at death 4. Intestate succession (no will,
transferred to closest relative) . 3 fee simple = SAD
A. Fee simple absolute: (to A/ to A and his heirs). If amb, presume FS. Can last forever (passed on heir to heir), freely alienable.
Restrictions only via express conditions, not through grantor’s desire/wish/ purpose of land to be used a certain way. No FI
B. FS subject to condition subsequent: terminates 1. conditional event (: BOP: (1) but if, (2) on condition that, (3) provided) happens
2. grantor affirmatively demonstrates his right of reentry.
 Q: “To A, provided that if developed, then to heirs”. O transfers interests to friend. O dies and wills interest to EE. A develops -->
not to friend, b/c right may not be transferred by holder during holder’s life. EE is current holder but did not affirmatively trigger transfer of
ownership so A remains holder.
C. Fee simple determinable: duration of (SUD: so long as, until, during). FI: grantor retains possibility of reverter and gets land
back when condition happens.
 Owner may transfer possibility of reverter during life/ death. If so, then does not automatically pass to heir.
D. FS subject to executory interest: FS automatically terminates upon specific duration/condition & title passes to 3 rd party.
1) Shifting: divests prior interest in a grantee. (To A, but if B returns from Florida within 1yr to B). A= FSSEL, B= shifting executory
[RAP]
2) Springing: cuts short the grantor's own interest (ex. to A for life, and 1yr after A's death to B & his heirs). A= life estate, O= 1 year
reversion in A, C= springing. [RAP]
E. Life estate: until measuring life. Life tenant cannot pass property by will/intestate succession (b/c ends when LT dies). But has
right to possess, transfer during life, lease/sell mortgage etc (grantee receives LE measured by life of grantor). Must pay tax to extent receives
financial benefit from property (if lives there, then FMV rent). Duty not to commit waste affirmatively (decrease in property value) or
permissive (permit to deteriorate through neglect, fail to make reasonable repairs); ameliorative ok (change in property increases value when
necessary to continue reasonable use of property) [O to A for life then to B, B has remainder]
1) Vested Remainder: ascertainable grantee +no condition precedent. RAP X
 Vested subject to open of unspecified persons but at least 1 qualified to possess at time of conveyance. RAP applies = all or
nothing, even for those whose interests have already vested, unless specific $ to each, or to subclass at specific time. –
 Rule of convenience: closes class when any class member is entitled to immediate possession to prevent RAP violation. (ex. to A
for life then to B’s children. Ben has 1 child. Closes when A dies). Doctrine of worthier title: (only some), prevents remainders in the
grantor’s heirs and they have no interest. Shelley’s case: prevents remainders in grantee’s heirs. A only gets Fs.
2) Contingent remainder: to unascertainable grantee or subject to an express condition. RAP applies.
 RAP: voids future interest if there is any possibility that the given interest may vest >21 yrs after death of measuring life 1)
Last person (validating life) mentioned by proper name; (2) next subsequent party not mentioned by proper name takes. (3) the rest is struck.
RAP doesn’t apply to (1) transfer between charities, (2) option K/ROFR only by a current tenant. (3) many states adopt “wait and see” period to
see if actually vests in the period before striking out.
F. Concurrent estates:
1) TIC (default): 2 or more w/out ROS (if 1 party dies, the other doesn’t inherit). each co-tenant has undivided interest with
unrestricted right to unity of possess whole (each has 100%), interest freely devisable.
 JT 1 can lease to 3rd party w/out JT2’s consent but the lessee must share right of possession with other cotenants. JT1 must share
rental income received.
2) JT: 2 or more w/ROS (If A&B own and A dies, B takes A’s JT instead of A’s child). created by grantor’s clear expression of intent+
survivorship language. Alienable but not devisable. 4 unities PITT @ creation & during: TTIP 1. Equal right to possess the whole, 2. w/identical
equal interests, 3. Created at same time, 4. By same title. Severance (SPAM)converts to TC only for severed share [sale, mortgage (if title
theory); partition].
 If 2 JT give 20% each to JT1’s son, and then JT 1 gives extra 10%, creates partition --> JT 1 30%, JT2: 40%, son: 30% all in TIC.
 If 2 JT, JT 1 leaves will to heir & JT 2 leaves will to heirs, since JT doesn’t allow will, the heirs inherit 50/50 at TIC.
 If 3 sisters hold in JT, old sister sells young sister her interest. Then that severs JT in respect to that interest, therefore young & old sister have
1/3 in TIC. 2/3 is JT between old and young sister.
3) Tenancy by entirety: PITT + marriage (must be executed during marriage, cannot be given as engagement gift) . Neither can
alienate/encumber property w/out other’s consent. Recognized in only ½ states, many convert divorce to TC. w/ROS
 Rights & Obligations of Owners: Unless agreed, 1 co-tenant cannot bind another co-tenant to a boundary line agreement w/a neighbor.
Possession: each has rt to possess whole; no ouster. Rent from 3rd Parties: shared ratably co-tenant rent received, but can deduct opEX &
necessary repairs. No right of reimbursement for necessary repairs & improvements, but can get credit in partition action.
Partition action: only available to TIC & JT. 1) physical division preferred over 2) partition sale, when land hard to divide (ex. can’t divide
condon) or unfair to all parties. Can agree not to partition if 1. Agreement clear + 2. Time limit not to partition is reasonable
2. Dispute about transfer
A. Landlord- Tenant
1) Tenancy for years: lease for fixed term. terminates at end no notice req. Created by express agreement, SOF if 1+ year.
2) Periodic tenant: automatic renews until 1 party gives valid termination notice before last period begins (if notice on 4/15, terminates 5/31).
Created by express / implied (no mention of duration) or holdover tenant. SOF only if initial term 1+ years.
3) Tenancy at will: no specific term, created by express /implication. Can be terminated by death of either/waste/ transfer to 3 rd party. Most states
req.notice, must give T reasonable time to vacate. Possibly unconscionable if only 1 party can terminate.
4) Tenancy at sufferance (holdover T): T wrongfully remains in possession. T bound by terms of lease before expiration including rent
payment. Tenancy lasts until T vacates/ L evicts T/L elects periodic tenancy.
5) Tenant duties:
1) To 3rd party: Duty of care to invitee/licensee/ foreseeable trespassers & may be liable for dangerous conditions.
2) Repair: Can only improve w/L’s approval. In lease, no duty to repair normal wear/tear.
3) pay rent unless premise destroyed not by T/ L’s material breach/ constructive eviction (SING: substantial interefernece + notice + gets out in
reasonable time) via L’s breach of
 covenant of quiet enjoyment (comm/rez property unsuitable for intended purpose + T notifies L of problem + L does not correct problem+ T
vacates premises after reasonable time passed). L must control common areas & neighbor’s nuisance on property (not resp. for bar across
 street). If total eviction: no obg. to pay rent. If partial eviction: 3 rd party retakes and physically excludes T from portion of leased premises, rent
proportionally reduced
 warranty of habitability (rez only) = not fit for basic health/safety of T (ex. violation of housing code). Can refuse or deduct reasonable
repairs from rent or pay rent and seek damages. Cannot be waived by T. Must notify L+give reasonable time to fix.
 If fail to pay rent, can sue for damages or evict or terminate lease. Must mitigate damages by accepting reasonable sub. No AR for future
rent. If T abandons, L can accept termination of lease or reject & sue for damages but duty to mitigate.
4) Assignment/ sublet: only allowed for time he has. Assignment: transfer in entirety of remaining term. L and T2 are in privity of estate but not
privity of K. L and T1 are not in privity of estate but in privity of K. T2 is primarily responsible and T1 is secondarily responsible. Sublease:
only portion of interest transferred. L and T2 are not in privity of estate or K. T1 and T2 are responsible to each other.

6) Landlord duties:
1) Deliver possession: M: give actual physical (liable if can’t move in b/c holdover T)+ legal possession of property to T m: only
legal possession.
2) Duty of reasonable care: : Injuries in common areas (must maintain), & forlatent defects (must warn) for non-common areas
under L’s control or from hidden defect/faulty repair. Modern
B. Land sale : Seller- Buyer
1) Land sale K: SoF req’s writing unless (2/3 of PIP): possession; subst improvement, payment. Risk of Loss: (doctrine of equitable
conversion): Between execution and closing of K, B has ROL, even though seller retains legal title, unless seller intentional/ negligent. But if
seller has casualty insurance, must give credit against purchase price. Implied Promises: Marketable title at closing free from unreasonable
risk of litigation (adv possession, encumbrances, zoning viols, but zoning restriction not violation), can be waived by buyer. Duty to disclose
known material defects, no implied promise of fitness or habitability unless new home builder AND commercial seller(promise of
workmanlike construction). Untimely Performance: time not of the essence unless stated in K. Perf rendered within reasonable time after
closing date is ok.
 Breach: If by S) B can sue for (1) K – market price (2) recision, (3) specific performance. If by B)S can sue for (1) K – FMV at
breach OR some jxn= just out of pocket $, (2) recision, (3) specific performance, unless there is a GFB.
 In ademption state, If seller of RP dies before conveyance, buyer can compel transfer. Sales of proceeds passed to devisee of
decedent’s personal property. If anti-ademption state, the devisee of decedent’s real property is entitled to sale proceeds.
2) Deed: (merger doctrine: after deed signed, deed controls, not K language, can only sue under the deed): LEAD (Lawfully Executed Delivered and
Accepted. Delivery: G must have present intent to be immediately bound (=presumed when recorded). Presumed delivered when publicly
recorded (must do so to give notice of your ownership). Deed is still valid when executed, not recorded. Acceptance is presumed unless expressly
rejected. Invalid if insufficiently ID grantee (ex. “to all male members of my family). Therefore if owner subseq. wills to identified female
member, female wins. Even if not signed by grantee, grantee is still bound if accepts by recording it. Parol evidence allowed to show grantor
lacks intent to present transfer, but cannot be used to show grant was sbjec tto an oral condition not in K.
 Quitclaim: no covenants; gives what G has.
 General Warranty: SECFEW (of title)
1) Present (1) Seisin – G owns estate he’s conveying; (2) Rt. to Convey– has power to convey w/o temp restraints; (3) Against
Encumbrances – no easement, covenant or mortgages not specified in deed; Breach at time of conveyance. Cn’t be enforced by subseq. grantees
b/c doesn’t rune w/land.
2) Future (1) Warranty – promise to defend against lawful claims by others; (2) Quiet Enjoyment – no disturbance by 3rd party’s lawful
claim of title; (3) Further Assurances – do whatever necessary to perfect title. Breach when grantee sued or evicted w/ valid superior interest
Runs w/land and can be enforced by subseq. grantee
 Special Warranty: promises G makes on behalf of himself that he won’t convey to anyone else and property is free from encumbrances made
by G.
 Recording system: protected if BFP (purchaser for value and without notice of someone else buying first (actual, inquiry or record
notice). No protection for heir, devisee, or donee except shelter rule, 2) invalid deed even if relied on it and 3) subsequent BFP who bought a
property acquired by AP or prescriptive easement.
 IF BUYER (inc. mortgager not gifted); Notice: 2nd buyer wins if BFP, and has no notice (no convey good against suseq.
purchasers for value and w/out notice). Race: first to record wins, regardless of knowledge “no conveyance.. unless first recorded). Race
Notice: 2nd buyer wins if w/out notice and records first (“No conveyance w/ out notice who shall 1st record).
 Shelter rule: one who takes from BFP is protected just like BFP. [Ex. O sells to A, then sells to unknowing B for value. B dies. B’s
heirs record. A then record. Race- notice statute: Heirs win b/c B is BPF and w/out notice. Heirs also recorded first]
 Wild deed: subsequent BFP’s recorded deed does not give sufficient notice if previous owner did not record. (therefore recorded
wild deed becomes invalid
 [ex O sells to A but A does not record. A sells to B and B records. O then gives to C who has no notice of prior conveyance. C
records. Then A records deed from O to A]: Race: C wins b/c B’s recorded deed was “wild”.
 ex. O sells to A but A does not record. A sells to B. B records. O then sells to C. C then records. If race-notice, C wins b/c BFP, no notice, and
B was a “wild deed” b/c A didn’t record
 Estoppel: person conveying land w/o any interest in it is estopped from denying validity of conveyance if he later acquires.
 Equitable conversion: when land sale K executed, buyers become equitable owners and owner merely holds legal title. If creditor obtains
judgement lien against original owner after K executed, unenforceable b/c house no longer belongs to that owner.
 Mortgage does not automatically have priority over judgment lien. Must follow type of recording act statute of that state.
C. Security Interests: security device for debt.
1. Mortgage: 1) writing, 2) signed 3) reasonably ID parties on land. SOF
 Mortgagor = borrower of money= grants mortgage.
 M= lien state (mortgagor is owner of RP until default, then EE owns; m= title state (mortgagee = owns RP and mortgagor can regain
ownership if satisfies obligation. NOTE, in title state, JT severed upon mortgage grant and turned into TIC )
 Mortgage alt: 1) deed of trust : 3rd party trust holds title for the lender and re-conveys to borrower upon payment of note. If default, trustee sells
land to repay the note. Used b/c beneficiary-lender can purchase property at judicial sale while mortggee-lender cannot. 2) installment land K:
seller retains title under the buyer makes final payment. Trad: if buyer breaches (miss payment), seller keeps installment payments made +
property. Modern: some treat as mortgage (=seller must foreclose on property to gain title); some give buyer equitable right of redemption to stop
foreclosure sale; some allow seller to retain ownership but require some resittuio to buyer. 3. Absolute deed: borrower transfers unrestricted title
 to the property instead of conveying a security interest in exchange for loan. If mortgage disguised as sale (“equitable mortgage), borrower must
prove a mortgage-like agreement by clear and convincing evidence. SOF does not bar oral evidence to explain written deed. 4) conditional sale
and repurchase: owner sells property to lender who leases property back to the owner in exchange for a loan. Lender gives owner the option to
repurchase after loan is paid off.
 Transfers: May transfer via deed (sale), will, intestate succession. Mortgagor remains personally liable after transfer until mortgagee releases.
If transferee “assume” obligation, then both transfere & mortgagor personally liable to pay mortgage. If “subject to”, then transferee has no
personal liability and property may be sold at foreclosure sale to satisfy outstanding mortgage. Transferee takes free of personal defenses but can
assert real defenses (MAD FIFI- material alteration, duress, fraud in factum, incapacity, illegality, infancy, insolvency)
 M: transfer mortgage w/out note is void. M: transfer note w/out mortgage seen as automatic transfer w/note b/c mortgage follows note.
 Note must be negotiable and made payable to named mortgagee; original note must be endorsed and signed by mortgagee; original must be
delivered; transferee must take note in good faith w/o notice of illegality. Transferee is holder in due course.
 Selling with mortgage: Assumption of mortgage: debtor is primarily and buyer is personally liable. Subject to mortgage: buyer has no personal
liability; only owner is personally liable but home can still be foreclosed
 Foreclosure: Can enforce when borrower defaults (or earlier if valid due on sale: lender can demand immediate payment of outstanding
obligation upon transfer/ encumberance: accelerate if obtains 2nd mortgage/ encumbers property clause). forced sale of asset to pay off debt.
 Lender must give notice. After sale, mortgagor has no rights, unless statutory redemption available after sale to regain; if pays before sale,
then equity redemption. Terms of deed cannot include waive mortgagor’s right to redeem before foreclosure of sale (ex. “If mortgagor doesn’t
redeem w/in X months then lender can transfer” is invalid). Purchaser takes property free & clear of any junior mortgage but subject to senior
mortgage & mortgagor’s statutory right of redemption.
 Priority: Foreclosure destroys all junior interests unless not given notice of sale. Sr interests are not affected. Paid “first in time first in right”
(sr is one who is first in time) But 1) Purchase money mortgage (seller is lender who secures mortgage) has priority over all Jr/Sr intersts 2)
subseq mortgage that records has priority over unrecorded prior mortgage. 3) holder of prior mortgage can subordinate his interests to holder
of a subseq. mortgage. 4) SR mortgage that enters into agreement to modify mortgage subordinates his interst to junior mortgagee’s interest to
extent modification is prejudicial to Jr mortgagee’s interest. If proceeds are insufficient, mortgagee can bring a deficiency action (but not if it
was a nonrecourse loan)
2) Deed of trust: 1) borrower (purchaser of property), 2) lender and 3) 3rd party trustee who holds title to property until loan paid off. * title
transferred to purchaser once the loan is paid.
3. Servitudes :
A. EASEMENT: : non-possessory prop interest (AP, but nnt exclusive use). Created by writing, SOF. No consideration required.
X freely revoke. Duty to maintain & may seek contribution for reapris if adq. Notice + opportunity to participate in repair decisions. Servient
estate must contribute to repair/ maintenance of easement if servient estate uses the easement.
1) Terms: Affirmative: rt to do something on servient land Negative: req’s holder to compel servient owner to refrain. Limited to
LASSS: Light, Air, Support, Stream, Scenic view. Appurtenant: physical use/enjoyment of property. Passes auto w/ dominant tenement and with
servient tenement unless BFP w/o notice. In gross: only personal or commercial advantage. Non-transferrable unless for commercial purpos
2) Creation: PING – Prescription (COAH – see below); Implication (if division, implied from existing use if apparent and reasonably
necessary to dominant land’s use/enjoyment); Necessity (if division creates land lock); Grant (>1yr must be in writing
3) Termination of ES & covenant: END CRAMP – Estoppel (servient landowner materially changes position in reasonable reliance
that easement won’t be enforced); Necessity; Destruction of servient land; Condemnation of servient land by eminent domain; Release (in
writing); Abandonment (phys action by holder expressing intent never to use again; ex. if covenant for fence to run w/land, terminates when
fence dismantled by future owners); Merger (if separated again later, doesn't automatically revive); Prescription (servient owner interferes)If
uses easement beyond its purpose can seek injunction but not termination
B. LICENSE: privilege to enter land for specific purpose, consent by owner. Informal and freely revocable, unless estoppel – licensee
invested substantial $/labor in reasonable reliance on continuation.
C. PROFIT: permission to enter land to take soil. Same rules as easements
D. COVENANT: ($ DAMAGES): K promise to do or not do sth on land
 Burden runs: WITHVN – Writing (by orig parties); Intent (by orig parties to run); Touch/Concern (benefit/ burden must affect land,
not as individuals, ex. affirmative duty to do sth/ refrain from doing sth); Horizontal and Vertical Privity (H: succession of estate btwn original
parties, e.g. grantor/ee; L/T; debtor/creditor. V: non-hostile nexus, no AP); Notice (Actual, Record, or Inquiry).
 If writing shows intent for the burden to run with the land, then the burden runs to heirs as well.
 Benefit runs: WITV – Writing; Intent; Touch/Concern; Vertical Privity.
E. EQUITABLE SERVITUDES: (Injunction to enforce burden): WITNES: Writing; Intent; Touch/Concern; Notice; Eq Serv. Implied
Equitable Servitude: Maj rule. Req’ts: General Scheme by subdivider when sale began and Notice. Defenses: changed condition is so pervasive it
affects entire area. Can’t be enforced by non-party to comply.
 Common scheme or plan doctrine: court will imply reciprocal restrictive covenant on land parcels in a subdivision sold by developer
only if 1) developer had a common scheme or plan that ALL parcels would be subject to restriction at time sold + land owner had notice of
restriction. Reciprocal negative servitudes only apply to negative covenants and equitable servitudes.
 Condo & HOA: common interest community of individually owned lots have obligation to 1) pay for/ contribute maintenance of
property held in common OR pay dues to association. Residents & successive owners subject to restrictive covenants that run with land.
F. ADVERSE POSESSION: (only for non-gov land). Possession for stat period of time can ripen into title if it's CHOATE –
Continuous; Hostile (possessor must objective demonstrate intent to claim land; his state of mind irrelevant. Not hostile if seeks permission or
owner actually gives permission); Open/Notorious (such that TO would be on notice), Actual; Time; Exclusive (not shared w/true owner, but can
share w/TIC) Possessor’s state of mind irrelevant. No adverse possession if owner disabled at inception. Tacking ok if privity (descent, contract)
btwn adverse possessors. SOL does not run against insane, infant, or imprisoned.
4. Miscellaneous
 Fixture: item affixed to the land/dwelling so that it becomes part of the land. Whether it is fixture determined by objective intent. Fee
simple owner can make fixtures to property but holder of life estate/tenant limited by doctrine of waste. Generally can remove fixtures unless
damages property. Trespassers can remove fixtures if done so in good faith (ex. A paid for fence to be built on B’s property. B sells. Buyer can
remove fence)
 Wild plants (ex. berries) belong with the land, while industrial crops are considered personal property and attach to owner
 Discrimination: not allowed for sale, rental, financing of homes & advertising (can’t state discrim. Intent/ preference). Focus on multi-family
old housings: doesn’t cover 1) single family house sold w/out broker, 2) owner-occupied bldg. w/4 or less units 3) religious org and private clubs.
Allowed: old age community, sexual orientation not covered yet (no discrim. for pregnancy), zoning restriction on maximum occupancy (# of ppl
allowed to live in a house) Must give reasonable accommodation for disabled. P must only show disparate racial impact via causation.
Racial/purpose not enough (ex. 2 apply)
 If conflict of law, law of situs: apply law of where property located, unless determining marital property (where parties domiciled), or
mortgage payment require payment in another state
 Zoning: 1) Variance: creates flexibility. Reqt’s: 1) undue hardship; 2) variance won’t decrease neighboring prop value. Determined by
admin action before zoning board, 2) Non-conforming use: once lawful but no longer b/c of new zoning ordinance. Can’t be eliminated all at
once unless just comp paid, 3) Unique exactions: amenities gov’t seeks in exchange for granting permission to build. Inherently suspect – must
be reasonably related in nature and scope to impact of proposed development
 Condemnation: if land taken away for public use (not considered constructive eviction). If partial condemnation, tenant must continue to pay
rent but entitled to compensation. If complete, T discharged from rent obligation
 Riparian rights: H2O belongs to landowners (riparians) bordering water course and can use in whatever reasonable way she wishes. If
surface water (rain that falls on house), neighbor cannot claim for “prior use”. No preference whether used residential/ commercial purpose.
 Lateral support rights: Strict liability for damaged property at the time the rights were conveyed if excavation on own lan causes adj land in
natural state to cave or if land w/ bldg can show that land would have collapsed in natural state. Only responsible for negligence for bldg.. built
after conveyance.
 Nuisance: 1) public: destroys health, safety or property rights. P must show he suffered harm diff. from rest of community. 2) private: subst
& unreasonable interefernce w/ individual enjoyment of his land. Anyone in possession of property can bring claim.