FIRST SEMESTER REAL PROPERTY CHECKLIST

I. Acquisition by Find
a. Lost
b. Mislaid
c. Abandoned
II. Acquisition by Gift
a. Elements
i. Intent
ii. Delivery
1. Actual
2. Constructive
3. Symbolic
iii. Acceptance
III. Acquisition by Adverse Possession
a. Elements
i. Actual
1. Constructive
a. Color of Title (Required in Minority)
ii. Open and Notorious
iii. Hostile (Manillo v. Gorski)
1. Majority State of Mind irrelevant
2. Minority requires good-faith
iv. Exclusive
v. Property Tax (Minority only)
vi. Continuous
1. Tacking? (Howard v. Kunto)
a. Privity?
vii. Term of Years
1. Disability Exception
a. Insanity
b. Incarceration
c. Minor
IV. Present Possessory Estate
a. Fee
i. Fee Simple Absolute
ii. Fee Tail (common law / minority)
iii. Defeasible Fees
1. Fee Simple Determinable (Majority)
2. Fee Simple Subject to a Condition Subsequent
3. Fee Simple Subject to Executory Limitation
b. Life
i. Life of the Grantor
ii. Pur Autre Vie
iii. Defeasible Life
1. Life Estate Determinable
2. Life Estate Subject to a Condition Subsequent
3. Life Estate Subject to Executory Limitation
iv. Doctrine of Waste
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 1. Affirmative
2. Permissive
3. Ameliorative (Minority only)
c. Restraint on Marriage
d. Restraint on Alienation
i. Types of Restraints
1. Disabling
2. Forfeiture
3. Promissory
V. Future Interests
a. Interests in the Transferor
i. Reversion
ii. Possibility of Reverter
iii. Right of Entry
b. Interests held by Transferees
i. Remainder
1. Vested
a. Indefeasibly Vested
b. Subject to Partial Divestment
c. Subject to Complete Divestment
2. Contingent
ii. Executory Interest
1. Springing (Divests from Grantor)
2. Shifting (Divests from Grantee)
c. Rules Furthering Marketability by Destroying Contingent Future Interests
i. Destructability of Contingent Remainders (common law / minority only)
ii. The Rule in Shelley’s Case (Common law / minority only)
iii. Doctrine of Worthier Title (Common law / minority only)
iv. Rule Against Perpetutities
1. Common Law
2. Wait and See Doctrine
3. U.S. RAP
VI. Co-ownership
a. Types of Co-ownerships
i. Joint Tenants
1. Creation
a. Common law (4 unities)
i. Elements
1. Time
2. Title
3. Interest
4. Possession
b. Modernly
i. Specific language / Expressing intent to create
2. Severance
a. Transfer to Self / or Sale (Riddle v. Harmon & Swartzbaugh v.
Sampson)
i. Strawman
b. Mortgage (Harms v. Sprague)
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 i. Lien (Majority)
ii. Title (Minority)
ii. Tenancy by the Entirety
1. Creation
a. Four unities + Marriage
2. Severance
a. Death of either spouse
b. Divorce (transition to tenants in common)
c. Mutual agreement
d. Execution by joint creditor
iii. Tenants in Common
1. Creation
a. Defaults due to lack of one or more unity
b. Severance of joint tenancy
c. Divorce by Tenants by the entirety
d. Intent by the grantor
e. Presumed when conveyance is ambiguous (Modernly)
b. Relations Among Concurrent Owners
i. Partition (Delfino v. Valencis)
1. Partition in Kind
2. Partition for Sale
ii. Ouster (Spiller v. Mackereth)
iii. Expenses
1. Rents & Profits
2. Taxes, Mortgage Payments
3. Repairs & Improvements
VII. Landlord Tenant
a. Leasehold Estate
i. Types
1. Term of Years
a. Statute of Frauds – One year provision
2. Periodic
3. Tenancy at Will (Garner v. Garrish)
4. Tenancy at Sufferance
b. Unlawful Discrimination
c. Delivery of Possession
i. English Rule (Deliver Actual & Legal Possession) (Majority) (Hannan v. Dusch)
ii. American Rule (Deliver only Legal Possession)
d. Lease Transfers (Ernst v. Conditt)
i. Assignment
1. Denial of assignment in commercial lease must be reasonable (Kendall v.
Ernest Pestana)
2. Novation
3. Rule in Dumpor’s Case (Common law / Minority)
ii. Sublease
iii. Transfer Restraints (Strictly Construed)
e. Landlord Remedies
i. Self-Help (Majority view only judicial action see Berg v. Wiley)
ii. Surrender
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 iii. Abandonment
iv. Duty to Mitigate (Sommer v. Kridel)
1. No duty to mitigate common law / minority
v. Security Deposit
f. Landlord Duties
i. Delivery of Possession
1. English Rule (Majority)
2. American Rule (Minority)
ii. Covenant of Quiet Enjoyment
1. Eviction Types
a. Actual
b. Partial
c. Constructive (Village Commons LLC v. Marion County)
i. Elements
1. Substantial Interference
2. Notice and Reasonable Time to Remedy
3. Vacate Premises
iii. Illegal Lease
iv. Implied Warranty of Habitability (Hilder v. St. Peter)
v. Retaliatory Eviction (Majority)
vi. Tort Liability
g. Tenants Duties
i. Fixtures
ii. Pay Rent
iii. Duty to Repair
1. Make reasonable repairs
2. No duty to repair for ordinary wear and tear
3. Not to commit Waste
a. Affirmative
b. Permissive
c. Ameliorative

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 THIS OUTLINE DOES NOT COVER EVERYTHING. KEEP IN
MIND THAT YOU ARE RESPONSIBLE FOR READING CASES
AND NOTES WITHIN THE CASEBOOK
REAL PROPERTY

Chapter One – First in Time

Acquisition by Discovery

Johnson v. M’Intosh

Acquisition by Capture

Pierson v. Post

Ghen v. Rich

Acquisition by Creation

International News Service v. Associated Press (Intellectual Property Case)

Diamond v. Charkrabarty

White v. Samsung Electronics America, Inc.

Moore v. Regents of the University of California

Chapter Two – Subsequent Possession

Acquisition by Find

When property is lost, mislaid, or abandoned, and is later found by another, a problem
of relative title emerges. If tested within the essays, pick one of the three and
persuasively articulate. You need not mention all three. There are three ways to
categorize found property:

Lost
Lost property is where a person did not intend to place the item there.
 Finders keepers against all but the true owner
 Conflict arises between landowner and finder of the property
 Trespassers who find lost or mislaid property lose – the rational is to discourage
people from trespassing upon someone’s land
 Employees contractual duty to their employer and must surrender or report the item
 Embedded objects are subject to the landowner because of the expectation of owning
things in the dirt itself are especially strong
 Property found in a public place go to the finder

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Abandoned
Property to which the true owner has voluntarily given up any claim of ownership –
remember about finders keepers. “True owner has renounced any claim of right.” How
does someone determine whether an item has been abandoned?

Mislaid
Property that the true owner placed somewhere with the intentions of returning for it. If
property is mislaid, finder has no rights to it. Property found in public places goes to the
landowner because the owner may return to the place where it was placed. A finder of
mislaid property acquires no rights; entitled to possession to all but the true owner; and
is entitled to keep abandoned property

Armory v. Delamirie

Hannah v. Peel

McAvoy v. Medina

Acquisition by Adverse Possession

Adverse Possession: 1) Actual; 2) Open and Notorious; 3) Hostile; 4) Exclusive; 5)

Continuous for a terms of years. Commonly tested among essays and multiple choice
questions. Bar Tested in July 2011 and February 2015.

Actual
Possessor gains title by actually occupying the land. As a general rule, the
adverse possessor will gain title only to the land that he or she actually occupies.
Also ask yourself: Is the adverse possessor occupying the land as a reasonable
owner would? Occupancy is largely contingent on the adverse possessor
improving the land in some fashion. Failure to improve the land will not satisfy
this element. When examining essays, look for facts of an “unimproved parcel of
land.” This would suggest to the examinee that the adverse possessor must
improve the land to make their adverse occupancy noticeable.

Constructive Possession (If Applicable)

Constructive possession is allowed if claiming under color of title and in
actual possession of a portion of the parcel. (Color of title: a document
purporting to convey possessor title but is defective.) Constructive
possession is never as good as actual possession because an adverse
possessor entering under color of title does not acquire title to land that,
while described in the defective deed, is actually occupied by someone
else. Minority jurisdictions claim color of title is essential to acquiring title
by adverse possession.

Open and Notorious

When a reasonable true owner would be aware of the claim. (“Was it reasonably
observable?”) Mannillo v. Gorski: A minor encroachment is not “open” unless
actual knowledge is established. Did the possessor leave or have any visible
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mark? Are they concealing their trespass? Typical example is posting signs,
constructing a structure, etc.

Example: A Water Company running a pipe under the Owner’s land and
there was no indication of the pipe’s existence from the surface of the
land, Water Company could not gain title by adverse possession because
there was nothing to put Owner on notice of the trespass.

Hostile
Possessor must possess the land without the owner’s permission and intend to
claim the land as his or her own against the claims of others. (“Possessor is
hostile to the true owner’s legal claim.”) It does not require anger or animosity,
thus the state of mind of the adverse possessor is irrelevant under the majority
view. Minority jurisdictions however require a good faith claim of title. Also think
of someone operating on the land but not within the guidelines of the actual
owner. Hostility can occur by explicit notification, by refusing to permit the true
owner to come onto the land, or by other acts inconsistent with the original
permission. Remember, modern majority jurisdictions state that “state of mind is
irrelevant.”

Exclusive
Possession cannot be shared with the true owner or other claimants. (Another
rule: “Adverse possessor excluded both the legal owner as well as other
claimants from the parcel.”) Two or more persons can work together to obtain
adverse possession, and in that successful instance, they become tenants in
common.

Example: A and B are next door neighbors. They decide to plant a

vegetable garden on the vacant lot behind both of their homes. A and B
share expenses and profits from the garden. If all other elements for
adverse possession are present, at the end of the statutory period, A and
B will own the lot as tenants in common.

Property Tax
In minority jurisdictions, the adverse possessor must pay the property taxes
during the possession. This require ties in with the good faith state of mind under
the hostile element.

Continuous
Possession must be used continuously and uninterrupted. (Look at the
characteristic of the parcel – i.e., summer home, ski lodge, etc; and the
customary use of the land.

Tacking
Tacking of time between adverse possessors is permitted on condition that the
parties are in privity. As a result of successive possessors, the final possessor
gets title, provided there is privity between the successive adverse holders.
Under tacking formalities, oral transfer of possession is sufficient to satisfy the
privity requirement but not often tested.
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 What is Privity?
Privity occurs where a possessor takes by descent, devise, or by deed
purporting to convey title. There is no privity where a possessor ousts a
preceding claimant or where one claimant abandons and a new adverse
claimant then goes into possession. Formal definition found within the
textbook is, “The connection or relationship between two parties, each
having a legally recognized interest in the same subject matter.”

Term of Years
Possession must be a duration defined under the statute of limitations for
trespass. Common law is 20 years. Most of the time the fact pattern will contain
a trespass statute.

Disabilities
Statute extending time for minors, prisoners, and those of unsound mind.
The disability must exist at the time of accrual of the cause of action.
Tacking of disabilities is not permissible. The rational under disabilities is
the law should not divest someone’s ownership because they cannot
object to trespass.

Example: O, the true owner, is 10 years old when A goes into

adverse possession. The statute will not begin to run until O
reaches the age of majority.

Example: O, the true owner, is declared insane six months after A

begins using his parcel adversely. The statute is not tolled because
O’s disability arose after the statute began to run.

Example: O, the true owner, is insane when A begins an adverse

use. Ten years later, O does intestate and the land goes to her heir,
H, who is then 10 years old. The statute of limitations begins to run
upon O’s death and is not tolled by H’s minority. Remember:
Cannot tack disabilities.

NOTES:
1. There must be a finalized judgment to successfully prevent adverse possessor
2. If the true owner files suit before the statutory period (e.g., 20 years) runs out and
the judgment is rendered after the statutory period, the judgment will relate back to
the time that the complaint was filed
3. Adverse possessor must seek “quiet title” from the court in order for the legally sell it
4. Statute of limitations does not run against government-owned land (federal, state, or
local).
5. Statute of limitations does not run against a future interest holder until it becomes
possessory; however a possessor may obtain adverse possession against a life
estate holder until the natural expiration of their life. Thereafter, the future interest
holder retains interest free from adverse possessor.
6. A defeasible fee – fee simple determinable – upon breaching the provision could be
in possession adversely with the original grantor.
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7. A defeasible fee – fee simple subject to a condition subsequent – upon breaching,
original grantor must first exercise his or her right to terminate grantee’s estate
before statute begins to run, otherwise it’s permissive. However, grantor must act in
reasonable time to prevent prejudice (laches).

Van Valkenburgh v. Lutz

Mannillo v. Gorski

Howard v. Kunto

Adverse Possession of the Government

Under the common law and modern majority jurisdictions, one cannot adversely
possess land belonging to the government (i.e., parks, sidewalks, streets). However,
minority jurisdictions permit it against the government.

Adverse Possession of Chattels

O’Keeffe v. Snyder

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 ADVERSE POSSESSION
(Basic Suggested Essay Approach)
Adverse Possession
Adverse possession requires 1) actual possession of the land, 2) possession was open
and notorious, 3) hostile to the true owner, 4) exclusive to the adverse possessor, 5)
continuous use, 6) fulfillment of the statutory term of years; 7) property tax.
Actual
Was the defendant1 using the land?
Did the defendant improve the land?
Constructive Possession (If Applicable)
Did the defendant enter the land in good-faith under the minority view?
Did the defendant accept a defective deed under color of title?
How/Why is the deed defective?
Did the defendant use a portion of the land?
Open and Notorious
Was defendant’s possession observable by a reasonable inspection?
Did the defendant conceal their use of the land?
Hostile
Did the defendant have the true owner’s permission?
Did the defendant exceed the permissible scope of the owner’s permission to
make possession or defendant’s activity adverse to the true owner?
Did the defendant harbor a good-faith belief they were the true owner of the
land?
Exclusive
Did the defendant share the land with the true owner?
Did the defendant share the land with members of the public?
Continuous
Did the defendant continuously possess the land without interruption?
Did the defendant possess the land in a manner consistent with
customary/ordinary use of the land?
Term of Years
Did the defendant fulfill the defined statutory period for trespass?
Exception(s) (If Applicable)
Minor
Was the plaintiff a minor at the time defendant entered adversely to
toll the statute until the plaintiff reached the age of majority?

1
The adverse possessor is identified as “Defendant,” assuming that Plaintiff is suing for
ejectment. Conversely, a Plaintiff could be an adverse possessor by applying for equitable relief after
fulfilling each element.
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 Incarceration
Was the plaintiff incarcerated at the time defendant entered
adversely to toll the statute until the plaintiff was released?
Insanity
Was the plaintiff of unsound mind?
Was the plaintiff mentally capable of objecting to adverse use of
their land?
Was the plaintiff of unsound mind at the time defendant entered
adversely to toll the statute until plaintiff regained sanity?
Property Tax
Did the defendant pay property tax during their period of adverse possession?
In conclusion, ___.

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Acquisition by Gift

Gift
A gift is a voluntary transfer of property with no consideration or compensation. A gift
requires the showing of three elements: Intent, delivery, and acceptance.

Intent
The donor must have the present intent to transfer title/interest. Under causa
mortis, which is a gift made with an expectation of an imminent death, is
revocable if the donor recovers from the threat of death – unless the donor
intends the gift to be irrevocable. Ask yourself, “Is there intent to make an
immediate gift?” If a donor says they will give you a wrist watch tomorrow, the
donor did not intend to vest title in that person at that moment but merely made a
gratuitous promise. An intention to transfer an interest at some future time is
insufficient.

Delivery
The donor must deliver possession to the donee with the manifested intention to
make a gift. Delivery can be actual, constructive, or symbolic. Note: The best
form of delivery is actual physical possession however it is not required.

Actual
Where the donee or donee’s agent has received dominion and control
over the subject matter of the gift.

Example: O places money into an envelope and into a safety

deposit box with a note stating, “This money is for my wife.” There
is no actual delivery because O still retains dominion and control
over the box.

Constructive / Symbolic Delivery

Constructive delivery is when an item, because of its size or location,
would be impossible or impractical to manually turn over, substitute
delivery may be sufficient. The delivery requirement will be satisfied if the
donor surrenders as much control over the subject matter of the gift as he
or she presently possesses. Under symbolic delivery, when manual
delivery is impossible or impractical. Symbolic delivery occurs when the
donor hands over some object, other than the item given that is symbolic
to the item. Symbolic delivery does not exist for causa mortis delivery.
Think: Constructive delivery is generally accomplished by written
instrument whereas symbolic delivery is an object relating to the gift.
However, either would suffice (vice versa).

Acceptance
A gift is not complete until acceptance by the donee. If the gift is beneficial,
acceptance is presumed if the gift is delivered unless expressly refused by the
donee or done with an affirmative act.

Newman v. Bost
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13
Chapter 3: Possessory Estates

Fee simple Absolute

The maximum ownership for a potentially infinite duration. Some multiple choice
questions refer to it as “Fee Simple” which will suffice. It is freely alienable, devisable by
will, or inherited. A person with fee simple ownership can freely sell, or transfer it to
another person. A fee simple can be divided and sold in parts in fee simple. A restriction
on transferring is always void under Restraint on Alienation, to be discussed later.

Common Law
“To A and [his/her] heirs.” Must have heirs, if not, it defaults to a life estate.

Modernly
“To A.” This is sufficient as a FSA because the law presumes that the grantor is
transferring the largest possible estate. This language operates as a life estate
under the common law.

Fee Tail
An estate that is limited to lineal descendants created by the words, “To A and the heirs
of his [or her] body.” Upon conveying said estate, there is always either a reversion in
the grantor, or a remainder in a third party because it is less than a fee simple absolute.
Fee tail is a common law concept and seen in modern minority jurisdictions.

Essay Tested
If this were to come up on an essay, attempting to convey a fee tail, in a majority
jurisdiction would in fact grant a fee simple absolute since the fee tail has been
abolished. However, in minority jurisdictions, a recipient of a fee tail is able to disentail it
and turn it into a fee simple absolute. NOTE: Modern majority jurisdictions, a fee tail
does not exist.

Life Estate
An estate lasting for the duration of a measuring life. Anytime a grantor conveys a life
estate, there must be a future interest created by operation of law from that transaction.
For example, if the original grantor conveys a life estate, the original grantor retains a
future interest known as a reversion which comes possessory upon the natural
expiration of the grantees death, OR, if there is a third party grantee named, it generally,
but not always, will be a remainder. Someone with a life estate, may transfer that estate
to a third party, but will transition the third parties interest as a life estate pur autre vie.

Common Law
O “to A.”

Modernly
O “to A for life.”

Examples
Modernly: O conveys Blackacre “to A for life.”
Common law: O conveys Blackacre “to A.”
Modernly: O conveys Blackacre “to A for life, then to B.”
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Common law: O conveys Blackacre “to A, then to B and her heirs.”

EXAMPLE: Oliver owns Blackacre in fee simple. Oliver conveyed Blackacre “to A for
life.” A has a present possessory interest because Oliver made the transfer “to A.” A’s
possessory will last for the duration of A’s life as evidence by “for life.” Accordingly, A
holds a present possessory interest in a life estate.

Types of Life Estates

1. Life of the grantee

2. Pur Autre Vie: When the duration of a life estate is measured by the life of another.
Ex. O “to A for the life of B.”

3. Defeasible Life Estates: An estate last for a measuring life but may be cut short
upon the happening or non-happening of a stated event. Ex. O “to A for life so long
as Blackacre is used for business purposes.” Labeled as either a: Determinable Life
Estate or Life Estate Subject to Conduct Subsequent.

Presumption if Conveyance is Ambiguous

If a grantor conveys land and it is ambiguous as to what their intention is to create:
Common law says that it is presumed the grantor conveyed a life estate unless a fee
simple was clearly expressed. However, modernly, it’s presumed the grantor passed a
fee simple unless otherwise expressed a lesser estate. See White v. Brown below.

Restraint on Alienation
A restriction on the sale or conveyance of real property. Generally, all restraints on
alienation are void.

Types of Restraints
Majority jurisdictions treat all types of restraints alike. Absolute restraints on fee simple
or life estates is void. However, partial or limited restraints may be upheld like limiting
conveyance to certain persons, or assessing the reasonableness of the restraints
purpose, effect, or even duration.

Majority jurisdiction permit forfeiture restraints on life estates.

Disabling Restraints
Withholds from the grantee the power of transferring his interest. (Ex. O conveys
Blackacre “to A and his heirs but any transfers hereafter in any manner of an
interest in Blackacre shall be null and void.”) Seen in White v. Brown.

Forfeiture Restraint
If the grantee attempts to transfer his interest, it is forfeited to another person.
(Ex. O conveys Blackacre “to A and his heirs, but if A attempts to transfer the
property by any means whatsoever, then to B and her heirs.”)

Promissory Restraint

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 The grantee promises not to transfer his interest. (Ex. O conveys Blackacre “to A
and his heirs, and A promises for himself, his heirs and successors in interest
that Blackacre will not be transferred by any means.”) The verbiage after “to A
and his heirs,” will be stricken.

Remedy
When it is determined that there is an unlawful restraint, the remedy is to delete it
entirely and read the conveyance provision as if it were never written.

Example: O conveys Blackacre “to A so long as Blackacre is never sold.” When

applying the remedy, the red highlighted portion will be stricken. Consequently,
the conveyance will read, “to A.” Thus, modernly, A holds a fee simple absolute.
However, under the common law, A holds a life estate and O will retain a
reversion.

Doctrine of Waste
A remedy used to describe actions of a life tenant that impairs the property’s value or
interest of the future interest holder.

Affirmative Waste
Also known as voluntary waste, occurs when a life tenant intends to damage the
land permanently. (Ex. mining, extracting gold, other forms of depreciating the
value of the land.)

Permissive Waste
Also called involuntary waste, occurs when the estate holder acts negligently by
failing to protect deterioration of the land. (Ex. Failing to repair plumbing; water
pump fails after negligence of failing to repair resulting in loss of trees, shrubs,
plants, or house damage.) The notes in the book cite a case where failing to pay
property taxes resulted in permissive waste.

Ameliorative Waste
Waste that increases the value of the land but changes its character. Notes in the
book indicate that this is a minority view now – the reason is because it’s virtually
certain to occur.

White v. Brown

Baker v. Weedon

Leasehold Estates

Defeasible Fees
A fee estates that may be terminated upon the happening or non-happening of a stated
event. A defeasible fee is similar to a fee simple absolute in that it may be possessed
for an infinite duration, however it is limited based on the original grantors attached
provision. (Ex. O “to A so long as Blackacre is used for residential purposes.”) In that
example, it’s possible Blackacre could be owned by A indefinitely, as well as A’s heir

16
upon his or her death, but is still limited as the provision confines the use of the land to
residential purposes.

There are three types of defeasible fees: 1) Fee Simple Subject to a Condition
Subsequent; 2) Fee Simple Determinable; 3) Fee Simple Subject to Executory
Limitations. Depending upon the provision the original grantor states verbatim, the
repercussions are different in the event of a breach.

Fee Simple Determinable (“FSD”)

A defeasible estate that will automatically end upon the happening of an event. Examine
the provision for limited durational language: so long as, as long as, while, until,
during. Possible future interest created if in grantor: Possibility of Reverter. Minority
jurisdictions do not adhere to this defeasible estate because of the automatic forfeiture it
creates, thus minority jurisdiction treat it as a fee simple subject to a condition
subsequent. Possible future interest created in a grantee (third party): Executory
Interest. Remember: A fee simple determinable is lesser estate compared to a fee
simple absolute. (Remember: Think adverse possession issue if the Grantor’s provision
is violated - SOL.) In a case of hopeless ambiguity, the law favors the creation of a
FSSCS – but always measure the grantors intent. Keep in mind however, there is a
difference between “ambiguity” and “hopeless ambiguity.”

Example: O owns Blackacre in fee simple. O conveys Blackacre to A so long as

Blackacre is used for residential purposes only. A holds a present possessory
interest in a fee simple determinable and O retains a possibility of reverter. It is
not necessary that O’s possibility of reverter be expressly reserved, like required
for a right of entry. A possibility of reverter is created in O by operation of law.

Possibility of Reverter
A future interest retained in the grantor/transferor created when a determinable estate is
conveyed. Minority jurisdictions and Common law does not allow inter vivos transfer.
The grantor automatically regains possession upon the grantee breaking the provision.
The FSD is accompanied by a future interest of a Possibility of Reverter by operation of
law unless the grantor specifies the property goes to 3 rd party – but also look to see if
the 3rd party’s interest is void.

Fee Simple Subject to a Condition Subsequent (“FSSCS”)

A defeasible estate that does not automatically end upon the happening of an event.
Examine for conditional words: upon condition that, provided that, but if or if it
happens that. The grantor retains a Right of Entry if the conveyance does not go to a
third party in the event the provision is violated. If it goes to a third party, it will likely be
an Executory Interest. In minority jurisdiction, there is only a FSSCS no matter what
language the grantor uses.

Right of Entry
A future interest retained in the grantor/transferor created when a FSSCS is conveyed,
retains power to cut short or terminate the estate. The holder of this estate has the
option of electing to divest the operator of the land, it does not automatically forfeit.
Unless and until entry is made, the fee simple continues. Minority and common law –
not transferable inter vivos. Most jurisdiction require that a right of entry be expressly
17
reserved by the grantor. For instance, O conveys Blackacre “to A on condition that
Blackare is used for residential purposes, otherwise O reserves the right to re-entry
and reclaim Blackacre.” A problem arises when the grantor conveys, what appears (or
is) to be a fee simple subject to a condition subsequent, but the grantor omits to
expressly reserve a right of entry future interest. Most legal scholars still apply a right of
entry in the grantor since it arguably goes to the grantor’s probable intent.

Fee Simple Subject to Executory Limitation

A defeasible estate created when the grantor transfers a FSSCS, and the instrument
creates a future interest in a third party versus himself. This type of defeasible fee is
created with use of the same language as a FSSCS or determinable estate, but
distinguishable since the future interest is retained by a third party and not the
grantor/transferor. Upon the happening of the stated event, the third party immediately
vests his or her interest while divesting the current owner.

Example: O conveys Blackacre “to A so long as Blackacre is used for residential

purposes only, otherwise to B.” OR O conveys Blackacre “to A on condition that
Blackacre is used for residential purposes, and if Blackacre is not used for
residential purposes, then to B.” These two examples demonstrate that A
holds a present possessory interest in a defeasible fee, but in the event of a
breach, the future grantee will obtain possession. Specifically, in both examples,
A’s estate is a “fee simple subject to executory limitation – due to B’s executory
interest that will cut short A’s estate in the event of a breach. Note, under these
two examples, B’s interest will be void by the Rule Against Perpetuities.

Notes:
Mere expression of purpose alone are not consequential and does not operate to create
a defeasible fee. (Ex. O conveys Blackacre “to A for the purpose of use as a
playground.”)

Mahrenholz v. County Board of School Trustees

Mountain Brow Lodge No. 82, Independent Order of Odd Fellows v. Toscano

Condemnation of Defeasible Fees

Majority view – Defeasible Fee owner takes all as a result of eminent domain
Minority view – Future interest holder has a protected interest.

Ink v. City of Canton

Restraints on Marriage
Defeasible Life Estate: O conveys Blackacre “to A for life on condition that she never
gets married.”

It may be valid the intention of the restriction was to provide support until marriage
without the desire to hinder marriage. Generally however, this issue violates the
doctrine of restraint on alienation for public policy considerations for the promotion of

18
marriage. Examine whether the grantor is penalizing marriage, or is there a
valid/reasonable reason to restrict marriage?

Example: “to A for life so long as A remains unmarried” is thought to be

durational limitations which has some evidentiary value as indicative of a motive
to provide support for a certain period. Condition subsequent is language thought
to have the purpose of penalizing marriage.

19
Chapter 4: Future Interests

Possible Future Interests Created in a Grantor / Transferor

1. Reversion – when a life estate is conveyed

2. Possibility of Reverter – when a fee simple determinable is conveyed
3. Right of Entry – when a fee simple subject to a condition subsequent is conveyed

Possible Future Interest Created in a Grantee / Transferee (3 rd Party)

1. Remainder
a. Vested Remainder
i. Indefeasible Vested Remainder
ii. Vested Remainder Subject to Partial Divestment (Subject to Open)
iii. Vested Remainder Subject to Complete Divestment
b. Contingent Remainder
i. Alternative Contingent Remainder
2. Executory Interest
a. Shifting
b. Springing

Possible Interest in the Grantor / Transferor

Reversionary Interests: All are “vested” in the grantor.

Reversion
A reversion is a future interest created in a grantor that will automatically become
possessory upon the natural expiration of the proceeding estate. Reversions are
transferable during life or death under the common law and modernly.

Examples

O conveys Blackacre “to A for life.” In either the common law or modern view, A
has a present possessory interest in a life estate and O retains a reversion by
operation of law. There is no requirement that O’s reversion be specified in the
conveyance to A.

O conveys Blackacre “to A.” Under the modern view, A holds a present
possessory interest in fee simple absolute. O holds no interest since O conveyed
the largest possible estate to A. However, under the common law, A holds a life
estate and O retains a reversion.

O conveys Blackacre “to A for life.” Thereafter, A sells Blackacre “to B for 50
years.” A holds a life estate with a maximum duration of A’s life. A also holds a
reversion in the event B’s 50-year possession expires. B has a term of years
estate because B’s interest has a fixed end date. However, B’s term will never
extend further than the life of A. Thus, if A dies after B has only been in
possession for 10 years, then B’s interest will be divested. O retains a reversion
– a future interest created in O by operation of law.
20
Possibility of Reverter
Interest retained by the grantor that will automatically become possessory upon the
happening of a stated event. (“A future interest created in a grantor when a
determinable estate is conveyed.”) Minority jurisdiction do not adhere to the automatic
forfeiture, but only the FSSCS (Right of Entry Future Interest). This interest is created
by operation of law, automatically, when the grantor conveys a determinable estate. A
grantor/transferor may retain a possibility of reverter when conveying a determinable life
estate. Common law and Minority do not permit transfer but only inheritance. Modernly,
a possibility of reverter is permitted to be alienated by inter vivos, devised, or inherited.
Remember, whenever a determinable estate is created, the grantor retains a possibility
of reverter, unless the grantor simultaneously creates in an interest in a third party.

Examples

O conveys Blackacre “to A so long as Blackacre is used for residential

purposes.”

O conveys Blackacre “to A but if Blackacre is used for commercial purposes,

then Blackacre automatically reverts back to O in fee simple.”

Right of Entry
A future interest created in a grantor retaining power to terminate or cut short upon the
happening of a stated event. (“An interest created in the grantor when an estate subject
to a condition subsequent is conveyed.”) Grantor retains interest by deliberately acting
by reclaiming the parcel. Minority – not transferable, only inheritable. Does not trigger
adverse possession until the grantor exercises their right to re-enter.

Example
O conveys Blackacre “to A on condition that Blackacre is used for residential
purposes, otherwise O retains the right to re-enter and retake.” Presumably, O
holds a fee simple absolute. A retains a present possessory interest in a fee
simple subject to a condition subsequent. Upon conveyance, O’s interest
transitions into a right of entry since O expressly retained that interest when O
conveyed the estate to A. If A breaches, O’s interest will not automatically
become possessory. Instead, O must re-enter and divest A.

Future Interests in Tranferee / Grantee

Remainder
Remainders are classified into two categories: vested or contingent. A question to ask is
whether: 1) is the beneficiary ascertainable?; and/or 2) Is the beneficiary subject to a
condition precedent? A remainder is a future interest created in a grantee/transferee
that is capable but not certain of becoming possessory upon the natural expiration of
the proceeding estate. A safe rule of thumb, nearly all modern majority jurisdiction state
that remainder almost always follow life estates; a remainder cannot follow a fee simple.
All remainders are freely transferable during life or at death under the common law and
all modern jurisdictions.

21
Vested Remainder
Vested remainders are not subject to any condition and are ascertainable persons. If
the conveyance is ambiguous, the law favors vested remainders over contingent. Three
types of vested remainders:

Indefeasibly Vested Remainder

A future interest created in a grantee that is automatically certain of becoming
possessory upon the natural expiration of the proceeding estate. Cannot be divested.
1. Ascertainable Person;
2. Becomes possessory upon the natural expiration of proceeding estate;
3. Not subject to being defeated or divested (Vested Remainder subject to
Complete Divestment);
4. Not subject to diminish in size (Vested remainder subject to open).

Examples

O “to A for life, then to B.”

No stated condition for B, and B is named being he or she is ascertainable; no
stated condition of someone else who may divest B from his interest.

O “to A for life, then to A’s first born son.” A has no children.
Contingent remainder in A’s first born because unascertainable.
If A has a child a month later, B, B’s interest will automatically vest making it an
Indefeasibly Vested Remainder

Vested Remainder Subject to Partial Divestment (Subject to Open)

A future interest remainder created in a class of persons but is subject to diminution.
Subject to the Rule against Perpetuities.

O “to A for life, then to A’s children.” A has one child, age 10.

Vested Remainder Subject to Total Divestment

A future interest remainder capable of being divested upon the happening of some
condition subsequent.

O “to A for life, then B and his heirs, unless C gets an A+ in Real Property, then
to C.”

Contingent Remainder
A future interest created in a grantee that is not automatically certain of becoming
possessory upon the natural expiration of the prior estate because the grantee is
unascertainable and or subject to a condition precedent. Contingent upon something
other than the termination of the prior estate. Common law – Not transferable. Modern
majority – fully transferable during life. Minority – follows common law. There is a
concept called “Alternative Contingent Remainders” which the book does not go over.
Subject to the Rule against Perpetuities.

Examples

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 O “to A for life, then to B if living.”

O “to A for life, then to the heirs of B.” B is alive.

O “to A for life, then to B if B passes Real Property.”

O “to A for life, then to B’s first child to reach the age of 25.” B is alive with no
children.

O “to A for life, then to B’s first child to reach the age of 10.” B is alive with a 9
year old daughter, C.

Executory Interest
A future interest created in a grantee that takes effect by divesting the owner of a prior
estate. Commonly following a FSD/FSSCS/FSSEL. Does not exist under common law
pre-statute uses. Remember, if the estate is divesting or cutting short someone’s estate,
it most likely is an executory interest. Executory interest are subject to the rule against
perpetuities. There are two types:

Shifting Executory Interest

Divests an interest in another transferee.

Example: O conveys Blackacre “to A so long as Blackacre is used for residential

purposes only, but if Blackacre is not used for residential purposes, then to
B in fee simple.” B holds a shifting executory interest because if A breaches, B’s
interest was divest A, not O.

Springing Executory Interest

Divests the transferor of a future interest. O “to any person who gets an A+ in real
property.” O has a fee simple subject to executory limitation and the unascertainable
student has an executory interest in fee simple.

Example: O conveys Blackacre “to A if A receives an A+ in real property.” Note,

this is an arguable example. A holds a springing executory interest because if A
were receive an A+, A would divest O (the grantor) of O’s current interest.

Rules Furthering Marketability by Destroying Contingent Future Interests

1. Destructibility of Contingent Remainders

2. The Rule in Shelley’s Case
3. Doctrine of Worthier Title
4. Rule Against Perpetuities

Destructibility of Contingent Remainders

A legal remainder in land is destroyed if it does not vest at or before the termination of
the preceding estate. Modern majority jurisdictions do not apply the doctrine of
destructibility of contingent remainders. Under the common law and modern minority, if
it does not become possessory immediately it gets destroyed.

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Anytime you see a remainder, think to yourself; is there a time gap before vesting
occurs?

Example: O “to A for life, then to B if B gives A a proper funeral.” Generally the
remainder is preserved for B to satisfy the condition and could transition into a
springing executory interest. Other jurisdictions state the estate will be preserved
in trust by the Attorney General until B provides A a proper funeral.

Doctrine of Merger
If a life estate and the future estate are held by the same person, the two estates merge
into a fee simple. Used in conjunction with Shelley’s Case and Doctrine of Worthier
Title.

The Rule in Shelley’s Case

If one instrument creates a life estate in A and a remainder in A’s heirs, that remainder
will become a remainder in A thereby creating a fee simple ownership. If one document
purports to give you a life estate and heirs or heirs of your body, the future estate, in
reality I’m giving you a life estate and I’m giving you a future estate. Majority
jurisdictions it no longer exists, minority and common law it still applies. This concept is
generally used in conjunction with the doctrine of merger.

Example: O “to A for life, then to A’s heirs in fee simple.” A has a FSA.

Doctrine of Worthier Title

Where there is an inter vivos conveyance of land by a grantor to a person, with a
limitation over to the grantor’s own heirs either by way of remainder or executory
interest, no future interest in the heirs is created; rather, a reversion is retained by the
grantor. Majority jurisdictions no longer applies; minority and common law still apply.

Example: O “to A for life, then to O’s heirs.” A has a LE and O has a reversion.

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The Rule Against Perpetuities
This rule is triggered with:

1. Executory Interests
2. Contingent Remainders
3. Class Gifts
4. Option to Purchase Agreements (Right to First Refusal)
5. Powers of Appointment (Wills, Trusts & Estates Class)

Common Law Rule

No interest is good unless it must vest, if at all, not later than twenty-one years after
some life in being at the creation of the interest. Charity to charity are exempt from the
rule. Measuring life = when interest was created (will is at the time of the testators
death). If it’s a corporation, it’s just 21 years and no life in being.

Common Pitfalls of RAP

1. Executory Interests following defeasible fees

2. Fertile Octogenarian
3. Unborn Widow
4. Children who reach at 22+

Executory Interest Examples

1. O “to A so long as Blackacre is used for residential purposes; otherwise to B.”

2. O “to A so long as Blackacre is used for residential purposes; otherwise to B for
life.”
3. O “to A for life, but if B passes Real Property class, then to B.”

Contingent Remainder Examples

1. O “to A for life, then to B if he reaches the age of 25.” B is 3 years old.
2. O “to A for life, then to A’s first child to reach 22.” A has no children.
3. O “to A for life, then to B if he wins the state lottery.”
4. O “to A for life, then to A’s children for the life of the survivor of them, then upon
the death of the last surviving child of A, to A’s grandchildren.” At O’s death, A is
an 80 year old woman with two children B and C.

Class Gifts
If a gift to one member of the class might vest too remotely, the whole class gift is void.
To put in another way, a class gift is not vested in any member of the class until the
interests of all members have been vested.

Example
O devises land “to A’s children who reach 25.” At O’s death, A is alive and has
three children, all of whom are younger than 25. This would technically be an
springing executory interest, but the interest is void because all members of the
class must vested when an interest becomes time to be transferred, so if A were

25
 to have another child, it would take that child longer than 21 years to reach the
age of 25, required under RAP for all members of the class to vest.

Remember

 Heirs are ascertainable at ones death – not during their life

 “Wife” / “Husband” is an unascertainable person
 “Widow” or “Widower”

Applicable Interest Warranting the RAP Discussion

1. Executory Interests

Example

O “to A so long as Blackacre is used for residential purposes; otherwise to B.” B’s
executory interest, cutting short A’s estate in the event Blackacre is not used for
residential purposes will be void by the rule against perpetuities because its’
possible A’s heirs could continue to abide by O’s condition more than 21 years
after the death of A and B. Remember, an executory interest in fee simple will
always be void following a defeasible fee estate.

2. Contingent Remainders

Example

O “to A for life, then to B’s first child to reach the age of 22.” B has no children.
B’s interest will be void by the rule against perpetuities because in the event that
A’s dies now, and B has a child, it would take longer than 21 years for B’s first
child to reach 22.

3. Class Gifts

If there is a remote possibility that all members of the class will not vest within the time
period, the entire class gift is void. Exception: Rule of Convenience

Examples

O “to A for life, then upon the death of A, to A’s children.” A has one child Sam
who is 5 years old. A has a life estate; Sam has a Vest Remainder Subject to
Open; Any possible subsequent children will have an Executory Interest (partially
divesting Sam’s interest). All future interests will be valid under RAP since any of
A’s children(s) interest will become vested.

O “to A for life, then to A’s children who reach 25.” A has 2 children, B who is 25,
and C who is 23. A has a life estate; B has a Vested Remainder Subject to Open;
C has a Contingent Remainder as well as other possible children A may have.
Under this scenario, the interest(s) in A’s children will be void under the rule and
by operation of law, O will then have a Reversion. A may have another child, D,
26
 thereafter A, B, and C die. Thus, it would take D longer than 21 years before her
interest will become vested. Note: If all members of the class do not vest when A
dies, then no member of the class will vest, thus the entire class gift is void.

Exception: “Rule of Convenience”

The entire class closes the moment one members’ interest vests and they are able to
demand a distribution.

4. Options to Purchase Land

For example, A (corporation) owns Blackacre in fee simple. A sells Blackacre to

B (another corporation) in fee simple. B then leases Blackacre to A for 50 years.
B provides a contract stating that A may exercise her right within that period to
purchase Blackacre. Since A may exercise the right to purchase Blackacre
beyond the 21 year mark, A’s “option to purchase agreement” will be void.
Numerous minority jurisdictions construe option agreement to last for “a
reasonable amount of time,” which may be less than 21 years thereby upholding
the agreement. Conversely, options given to natural persons are generally
construed to last for their lifetimes where it would be valid under RAP.

USRAP
A majority of states today follow the Uniform Statutory Rule Against Perpetuties
(USRAP) which provides a 90 year wait-and-see period or . A non-vested interest will
not be invalidated if its vests within 90 years after its creation. By statute of judicial
decision, some states follow the rule that validates any interest that actually vests within
the allotted time, even though it could have taken longer to vest (21 years after death).
The approach to USRAP is as follows: 1) go thru the common law first; 2) then analyze
whether the interest will vest within a life in being or 21 years after death; 3) wait 90
years and see.

Exemption: Charity to Charity are exempt from RAP. For instance, O “to A on condition
that Cancer Society use it as a research center; otherwise to Feed the Poor
Foundation.”

Example of Unborn Widow Pitfall

O “to A for life, then to his widow for life, and on the death of A’s widow, to such of A’s
descendants as are then living.” A has a life estate with A being the measuring life; A’s
widow will have a contingent remainder in a life estate; A’s children will have a
contingent remainder in fee simple. O retains a reversion. The remainder in A’s children
will be void by RAP. A could divorce his wife, or she could die, and A might marry
someone who was not alive at the time the interest was created. A might have a child
by the new “wife” or soon to be widow. Afterwards, everyone at the time of the creation
dies, leaving A’s widow still alive, and the possibility of A’s child vesting after 21 years.
By operation of law, O will retain a Reversion.

Voided Interest
When an interest is invalid, it is stricken from the document, and either a new
reversionary interest is created in the grantor or the preceding estate is enlarged.

27
28
 Interest Examples
Assume O owns Blackacre in Fee Simple Absolute:

1. “to A if A receives an A+ in real property class.”

2. “to A so long as Blackacre is used for residential purposes only, otherwise O retains the
right to re-enter and take Blackacre.”

3. “to A so long as Blackacre is used for residential purposes, but if Blackacre is not used
for residential purposes, then to B for life, then to B’s heirs.”

4. “to A provided that Blackacre is to remain residential and Blackacre is never sold,
otherwise to B for life.”

5. “to A for life, then to B for the life of C.”

6. “to A for life, then to B if B receives an A+ in real property class.”

7. “to A for life, then to B, unless C receives an A+ in real property class, then to C for life.”

8. “to A for life, then to B’s children.” B is alive and has one child, C, who is 10 years old.

9. “to A for life, then to B’s first child to reach the age of 21.” B is alive and has three
children, C is 20, D is 19, and E is 18.

10. O “to A for life, so long as Blackacre is only used for residential purposes only.”

11. O “to A for life, then to the heirs of A.”

12. O “to A for life, then to B’s first child to reach the age of 22.” B is alive with 3 children, C
is 21, D is 10, and E is 4.

13. “to A so long as Blackacre is use for residential purposes only and that A, or any
subsequent owner to A, shall not mortgage, transfer, convey, or sell Blackacre to any
other person, otherwise, to C for life, then to C’s heirs in fee simple.”

14. “to A so long as A never transfers Blackacre to another person.”

15. O “to A on condition that Blackacre is to remain residential, otherwise to C.”

29
 Real property – INTEREST CHART

Estate Language to Duration Transferability Future Interest Notes

Create

Fee simple “To A and his heirs” Absolute Devisable None.

absolute ownership, of (transferable by
“To A” (Modernly) potentially infinite will), descendibile
duration. (transferable by
statutes of intestacy A’s heirs get
if its holder dies NOTHING.
w/out a will),
alienable
(transferable during
life).

Fee tail “To A and the heirs Lasts only as Passes Reversion (if Common law
of his body.” long as there are automatically to held by grantor); concept
lineal blood grantee’s lineal Remainder (if
descendants of descendants. held by third
grantee. party).

Fee simple “To A so long as…” Potentially Alienable, Possibility of 2 Rules re

determinable infinite, so long devisable, reverter (held by Defeasible Fees:
“To A until…” as event does descendible, grantor).
not occur. subject to
“To A while…” condition.
Words of mere
Grantor must use F.S.D.P.O.R. desire, hope, or
clear durational intention are
language. insufficient to create
a defeasible fee.
Fee simple “To A, but if X Potentially Alienable, Right if
subject to event happens, infinite, so long devisable, entry/power of
condition grantor reserves as the condition descendible, termination
subsequent right to reenter and is not breached, subject to (held by Absolute restraints
retake.” and thereafter, condition. grantor). on alienation are
until the holder of VOID.
“To A, upon the right of entry
condition that” timely exercises
the power of “It’s my
“To A, provided termination. prerogative” –
that” Bobbie Brown

“To A, but if”

Grantor must
expressly reserve
right or reentry.

Fee simple “To A, but if X Potentially Alienable, Executory

subject to event occurs, then infinite, so long devisable, Interest (held by
executory to B.” as stated descendible, third party)
limitation contingency subject to (shifting or
does not occur. condition. springing)

Life estate “To A for life.” Measured by life Alienable, devisable Reversion (if Can’t WRITE2 on
of transferee or and descendible if held by grantor); the walls.

2
No waste; must make reasonable repairs; must pay interest charges on the mortgage; must pay property taxes
30
“To A for the life of by some other pur autre vie and Remainder (if
B.” life (pur autre measuring life is still held by third
vie). alive. party).

31
CHAPTER 5 Co-Ownership and Marital Interests

Three types of concurrent ownerships:

1. Tenants in Common
2. Joint Tenancy
3. Tenancy by the Entirety

For example, O “to A and B so long as…”

Tenants in Common
A concurrent form of ownership between two or more people with separate but
undivided interests having no survivorship right. Upon the death of a cotenant, their
heirs succeed to their interest. Example: O “to A and B.” If A dies, C and D, A’s heir,
succeed in interest and share an interest with B as tenants in common. Interest is
devisable, descendible, and alienable. Interest may be alienated, devised, or inherited
separately from other tenants in common interests.

Joint Tenants
A concurrent ownership where each tenant has an undivided interest with a survivorship
right. Modernly, to create a joint tenancy, the grantor must express a clear intent or it
will not be recognized. Generally, the requirement is, “to X and Y as joint tenants with
right of survivorship.” If two or more person take with an instrument, modernly it is
presumed to be tenants in common, unless the intent to create a joint tenancy was
clearly expressed. Highly tested on the CA Bar within essays and MS questions.

Under the common law, in order to establish a joint tenancy four elements must
independently be met: 1) Time; 2) Title; 3) Interest; and 4) Possession. Strawman –
common law requires a strawman if transferor already has possession. Modernly, a
person already in possession may execute the creation of a joint tenancy in herself and
another.

Time
Each tenants interest must vest at the same time.

Title
Each tenant must acquire interest by the same instrument.

Interest
Each tenants interest is the same type and duration.

Possession
Each tenant has an identical right of enjoyment.

Joint Tenancy Severance

Transfer / Sale to Oneself or Another

A joint tenancy can be destroyed by conveying property to oneself; and certainly is
destroyed by sale or transfers to another. (Riddle v. Harmon)
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Mortgages
A joint tenancy may be severed by a mortgage depending on the jurisdiction.

Lien Theory (“Majority View”)

In majority jurisdictions, a mortgage is regarded as a lien on title, and does not
cause a severance. However, severance only occurs if the tenant fails to make
payments and the mortgage is foreclosed and later sold. If Mortgagee dies while
the loan is unpaid, the surviving tenant takes the property free and clear unless
the lender foreclosed on the Mortgagee’s interest. (Harm v. Sprague)

Title Theory (“Minority View”)

Minority jurisdictions regard mortgages as a transfer of title and destroys the joint
tenancy.

Entering into Contract

Jurisdictions split that merely entering into a contract severs the joint tenancy under the
doctrine of equitable conversion (discussed second semester).

Tenants by the Entirety

An estate akin to a joint tenancy plus marriage. A conveyance to a married couple
presumes the creation of a tenancy by the entirety. The estate carries the survivorship.
Special rule, Tenants by the Entirety cannot be terminated by involuntary partition.
Tenants by the entirety can only be terminated by:
1. Death of either spouse;
2. Divorce (transitioning the estate holders to tenants in common);
3. Mutual agreement
4. Execution by Joint Creditor

In most modern majority jurisdictions, a spouse may not convey or encumber. Thus, a
deed or mortgage executed by one spouse is ineffective.

Notes

Joint tenants versus Tenants in Common

When the conveyance is ambiguous, the common law favors the creation of a joint
tenants, whereas modernly, favors the creation of tenants in common. If a conveyance
is ambiguous, examine the transferor/grantors intent. For the California Bar Exam as
well as final exam purposes, you always want to discuss the four unities regardless if
there is a joint tenants discussion, even if it’s a modern fact pattern. Remember for
multiple choice question, the fact pattern will likely say as “joint tenant.” If a joint tenant
mortgages their interest and they die, the mortgage is extinguished (the bank takes a
gamble). If a bank forecloses on an interest held in joint tenancy or as tenants in
common, the bank may only foreclose on the mortgagee’s share and not the other
cotenant.

Severance of Joint Tenancies

Riddle v. Harmon
33
Harms v. Sprague

Multiple Party Bank Accounts

Three types: 1) Joint; 2) Savings Trusts “Totten Trusts”; 3) Payable on Death
This is learned in both Community Property and Wills/ Trusts and Estates

Relations Among Concurrent Owners

Partition
Partition is available for Joint Tenants and Tenants in Common but not for Tenants by
the Entirety. A party or parties may demand a partition of property at any time and for
any reason, or no reason at all. Courts generally favor partition in kind versus for sale.
Cotenants may contract to prohibit a partition within an agreement but it may only last
for a “reasonable amount of time.” If one cotenant transfers that interest to a third party,
the “agreement” is void. There are two types of partitions:

Partition in Kind
Court orders physical division of the property in accordance with their interests.

Partition for Sale

Court orders the sale of the property and divides the sale proceeds.

Delfino v. Vealencis

Sharing the Benefits and Burdens of Co-Ownership

Under the majority view, a cotenant in sole possession, unless there has been an
ouster, the cotenant in possession does not have to pay a proportionate share of the
rental value to the cotenant out of possession.

Ouster
When a co-tenant refuses to allow another co-tenant access to all or part of the
premises. Upon an ouster, look to see if there is a potential adverse possession claim;
and or whether the oustering co-tenant is liable for rent. A co-tenant out of possession
cannot being a possessory action unless there has been an “ouster” by the tenant in
possession. A claim of right to exclusive possession can constitute an ouster (Example,
“This mansion is all mine”). Look to see if the tenant in exclusive possession either: 1)
prevents or bar physical entry, or 2) denies co-tenant’s claim of title.

Spiller v. Mackereth

Swartzbaugh v. Sampson

Important Rules from Sampson Case

 One joint tenant cannot sue the co-tenant for rent as a result of occupancy or for
profits derived from his or her own labor on the premises. However, a cotenant
may compel the tenant in possession to account for rent paid by third parties.
 One cotenant, whether it be a joint tenant or tenants in common, sell the others
interest.
34
 One cotenant cannot prejudice the other cotenant.

Rents and Profits

A cotenant who collects rent from third parties or gains profit derived from the use of the
land must share. However, a cotenant in possession has the right to retain profits
gained by his use of the property, nor reimburse for rental value of their use and or
operations. Remember, an ousted cotenant is entitled to receive his or her share of the
fair rental value of the property for the time he or she was wrongfully deprived of
possession.

Example: Cotenant operating a computer business need not share profits

Example: Cotenant extracting minerals for profit must share
Example: Cotenant obtaining rent collection for apartment complex must share

Taxes, Mortgage Payments, and other Carrying Charges

Each cotenant is responsible for their shares of paying taxes and mortgage and other
charges. However, there is an exception where one cotenant is in sole possession and
the value of the use and enjoyment which he has had equal or exceeds such payments,
no action in any form for contribution will lie against the others.

Repairs and Improvements

Repairs
Under the majority rule, no cotenant is responsible for payments of repairs in the
absence of an agreement. However, according to the text, a cotenant may be
reimbursed for repairs in a partition action. Bar review course will likely say that a
cotenant may compel contribution for necessary repairs so long as there was
notification of a need to repair – arguable point.

Improvements
A cotenant has no right to contribution from other cotenants for expenditures for
improvements. In the event of a partition, the improvements made by a cotenant will be
considered in an equitable scale but protecting the interests of both parties.

Marital Interests
Skipped – will learn in community property.

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Chapter 6: Landlord Tenant

Leasehold Estates

1. Term of Years
2. Periodic Tenancy
3. Tenancy at Will

Term of Years
An estate for a fixed period of time. Notice is not required to terminate. (Ex. day, week,
month, year, 3,000 years.) Subject to the Statute of Frauds 1 year provision.

Periodic Tenancy
A lease for a period of some fixed duration that continues for successive periods until
terminated by proper notice by either party. Notice required to terminate. Notice of
termination: For tenancy year to year, must give 6 months advance notice (Common
Law); for tenancies less than one year must give notice full period in advance (Ex.
Month to Month, must give 30 days notice). If notice is not given, the period is
automatically extended for another period.

Tenancy at Will
Tenancy with no fixed period that endures so long as both parties desire. Terminated if:
1) death of either party; 2) sale of property; 3) assignment by tenant; 4) tenant commits
waste. If the lease is only at will of the tenant (“you can live here as long as you want”)
construe to create a life estate in the tenant.

Tenancy at Sufferance (Holdover)

When a tenant remains in possession after termination of the tenancy. Landlord can
elect to: 1) bind to a periodic tenancy; 2) eviction; 3) sue for damages. Law permits: a
few hours-time leeway to vacate; or delay is not in fault of the tenant (hospitalization); or
seasonal lease (snow cabin).

Garner v. Garrish

Statute of Frauds
Two provisions applicable to this class:

One Year Provision

A lease for more than one year must be in writing to be enforceable. A violation of this
provision generally defaults a term of years into a periodic tenancy.

Real Property Provision

A sale or transfer of real property must be in writing to be enforceable.

Selection of Tenants (Unlawful Discrimination)

Mixed with constitutional law – Landlord cannot discriminate against, race, color,
religion, sex, familial status, or national origin.

Delivery of Possession
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Whose obligation is it when a new tenants enters into the premises to find holdover
tenant or trespasser? (Mention both rules found below on essay answers).

English Rule
Landlord has an implied in law obligation to deliver actual possession to the
tenant on the first day of the lease term. Meaning, if a prior tenant is holding over,
it is the duty of the landlord to get them out.

Remedy
Terminate the lease; adhere to the lease and withhold rent; recover
damages for lost possession.

American Rule
Tenant has a legal right to possession, but obtaining actual possession is up to
the tenant. Landlord’s only legal duty is to provide legal possession.

Remember: This is an issue if someone is sitting in the house that is not supposed to be
there. Prior tenant or a trespasser. States are split; and the casebook is inconclusive;
Bar review will say that the “English Rule” is the majority view. (Majority is better
reasoned; prevents new tenant from being involved in litigation; also saves judicial
resources to stop lawsuits etc). Author, Dukeminier, is unclear under this issue.

Hannan v. Dusch

Subleases and Assignments

Be careful examining the difference between subleases and assignments, the fact
pattern generally use them interchangeably. You want to examine the intent of the
parties to determine the nature of the transaction, and not the actual word “subleased”
or “assigned.” A majority of lease agreement contain provisions restricting
“assignments” or restricting “sublease,” or both. Clauses prohibiting assignment or
subleases is strictly construed. If the fact pattern says a tenant cannot assign the lease,
the tenant is permitted to sublease and vis-versa.

Assignment
The transfer of the party’s entire remaining interest under the lease. Think, “I am
transferring everything on my lease to you.” Commonly tested in the form of durational
interest. Landlords favor assignment over subleases because it gives the opportunity to
sue two people versus one. An assignment places the assignee in privity of estate with
the original party. An assignment does not destroy the binding effect of contractual
promises as personal obligation between Landlord and original contracting tenant.

 Assignee pays the landlord directly

 Assignee is privity of estate with the landlord because Assignee is on L/L’s
property
 Original Tenant is in privity of K with the landlord
 Landlord may sue either or both the Tenant and Assignee
 Assignee can sue the original tenant and landlord (because privity of estate)
unless there has been a novation.

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o Novation: 3rd party K where parties agree to release first party.

Sublease
When a tenant transfers less than the remaining term of the lease. When it’s a
sublease, the original tenant becomes the sublessor and the subsequent tenant
becomes the sublessee.

 Sublessee pays the sublessor who then pays the landlord. (Sublessor is the LL)
 Sublessor is in privity of K and privity of estate with the landlord
 Sublessee cannot be sued by landlord nor can landlord sue the sublessee
 Sublessee sues sublessor vis-versa
 Sublessee is in privity of estate with Sublessor (Sublessee is on their contracted
property)

Notes
Majority jurisdictions examine the intent of the parties whereas minority jurisdictions
solely examine the language. Clause provision stating that subleases & assignments
must be approved by the landlord: Majority – need approval; minority not need always
have approval in the context of commercial lease. Privity of K is a relationship between
parties that arises because they have entered into a K; whereas Privity of Estate is a
relationship between the parties because they share an interest in the property.

Ernst v. Conditt

Rule in Dumpor’s Case

A common law / minority concept where if a landlord consent to assign the lease, the
landlord cannot object to any future assignments by subsequent tenants unless the
landlord expressly reserved the right to object to future assignments. Not often tested
but might have 1 question on the multiple choice portion on the bar.

Kendall v. Ernest Pestana

The Tenant Who Defaults

This section examines what a landlord can do in the event of default, abandonment, or if
tenant holds over.

Tenant in Possession

Berg v. Wiley

If Tenant Defaults - Self-Help for Landlord (Berg v. Wiley)

Under the common law, a landlord may rightfully use self-help to retake leased
premises from a tenant in possession without incurring liability for wrongful eviction
provided two conditions are met: 1) the Landlord is legally entitled to possession, such
as where a tenant holds over after the lease term or where a tenant breaches a lease
containing a reentry clause; and 2) the landlord’s means of re-entry are peaceable.
However, if it is determined that the landlord wrongfully evicted the tenant, tenant may

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recover damages for wrongful eviction where landlord either had no right to possession
or where the means to remove the tenant were forcible, or both. Modern Majority holds
that a landlord must always resort to the judicial process to enforce his statutory remedy
against a tenant wrongfully in possession [Virtually All Residential and Commercial
Leases].

Landlord’s Remedies in addition to Eviction

Surrender
An offer to terminate the tenancy provided the landlord accepts. Surrender terminates
the lease and extinguishes the tenant’s liability for future rent but not for accrued rent or
for past breaches of other lease provisions. (“Here, I give up.”) Surrenders can be
clearly expressed, but what about implied? See page 500 in casebook. If the surrender
is for the expiration of the remaining lease, longer than one year, then it must be in
writing to comply with the Statute of Frauds.

Abandonment
When a tenant vacates the leased premises, without justification and with no intention to
return, coupled with a default in rent payment. An abandonment can be an implied offer
to surrender, and whether the landlord accepts the implied offer is the examination of
the landlord’s subsequent conduct. If the landlord accepts the abandonment, the
acceptance terminates the tenancy.

Landlord’s Remedies for Abandonment or Surrender

 Landlord may accept the tenants offer to surrender or implied abandonment. The
lease is then terminated and no future rent is due.
 Landlord can reject the tenants offer and keep the tenant on the lease, subject to
his duty to mitigate.

Sommer v. Kridel

Duty to Mitigate Damages

Under the majority view, a landlord must take reasonable efforts to mitigate damages.
Under the minority view, a landlord need not mitigate. Apply the majority view in the
context or commercial leases as well. In assessing whether the landlord has
satisfactorily carried his or her burden, examine, among other factors, whether the
landlord, either personally or through an agency, offered or showed the apartment to
any prospective tenants, or advertised it in local newspapers. Conversely, the tenant
may rebut that landlord’s effort(s) by showing that he or she proffered suitable tenants
who were rejected. Remember, there is no standard formula for measuring whether the
landlord has utilized satisfactory efforts in attempting to mitigate damages, and each
case must be judge upon its own facts. (Sommer v. Kridel) Although the landlord has
the obligation to mitigate, that does not prevent any damages, it will only prevent those
damages that could have been mitigated – “landlord failure to use reasonable efforts to
mitigate bars recovery ‘only to the extent that damages reasonably could have been
avoided.’” Page 501 in casebook (8th Edition). Under the common law, the landlord has
the option of: 1) terminating the lease; 2) obtaining another tenant while holding the
original tenant for any deficiency that may occur, or 3) permitting the premises to remain
vacant while collecting the agreed-upon rent from the original tenant.
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Landlords Remedies and Security Devices

Security Deposits
Security deposits can be used towards rent that was failed to pay, however if it was is
used for paying the rent, the tenant now has the obligation to re-supply that security
deposit. Failure to re-supply the security deposit itself can be grounds for eviction.

Duties, Rights, and Remedies (Especially Regarding the Condition of the Leased
Premises)

Landlord’s Duties: Tenant’s Rights and Remedies

Village Commons, LLC v. Marion County Prosecutor’s Office

Covenant of Quiet Enjoyment

Where the tenant is deprived of the beneficial enjoyment of the leased premises that
they are rendered unsuitable for occupancy for the purposes leased. The implied
covenant of quiet enjoyment may be breached in any one of three ways: 1) actual
eviction; 2) partial eviction; or 3) constructive eviction.

Actual Eviction
A tenant who has been totally ousted from physical possession. Tenant has no
obligation to pay rent and elect to terminate the lease. (Ex: Landlord changing locks;
telling tenant to leave; landlord loses rights by failing to pay mortgage on land so Bank
forecloses dispossessing tenant).

Partial Eviction
Tenant is physically excluded from part of the leased premises. Common law relieves
tenant of the obligation to pay any rent until or unless the tenant is restored to
possession of the entire leasehold estate. Modern Majority, partial eviction by the
landlord relieves obligation to pay rent, however a third party with paramount title,
tenant liable for the rental value for the portion possessed.

Constructive Eviction
Interference depriving tenant from the use and beneficial enjoyment of the premises.
Tenant may terminate the lease and/or sue for damages.

Elements:

1. Substantial interference. Tenant’s use and enjoyment of the premises must be

substantially interfered with. However, if the tenant knows of the interference
when he or she signed the lease, the court may hold that he or she waived the
interference.

2. Notice to Landlord. Tenant must give notice to the landlord of the defect and give
the landlord a reasonable time to cure the problem.

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 3. Vacate. The tenant cannot stay on and refuse to pay rent. Instead, he or she
must vacate the premises. However, failure to vacate within a reasonable
amount of time may constitute a waiver of constructive eviction.

For constructive eviction, look for floods/leaks, plumbing issues, heating, electrical
issues, etc. The book along with all commercial sources state that a tenant cannot
succeed on a claim of constructive eviction by acts of third parties i.e., adjacent
neighbor having parties all night. However, you must still discuss within final exam
essay and CA Bar Exam! Ask yourself: Does the Landlord have a duty to act? Not, does
the landlord have the power to act? Also think, is there anything the landlord can even
do – e.g., beach traffic, loud bar patrons.

Illegal Lease
An illegal lease is a lease in violation of current codes at the inception of the lease. If the
lease is built upon an illegal code, the lease is an “illegal contract,” thus unenforceable.
It does not apply if code violations developed after the making of the lease. Minor
technical violations do not render a lease illegal.

Warranty of Habitability
In a residential lease, the implied warranty of habitability requires a landlord to maintain
property such that it is reasonably suited for residential use. Tenant must notify the
landlord of the problem and give the landlord a reasonable amount of time to correct the
problem. There is no requirement that the tenant be vacated from the premises (Hidler
v. St. Peter). If the premises are not habitable, the tenant may: 1) refuse to pay rent; 2)
remedy the defect and offset the cost against the rent; 3) defend against eviction.
Warranty of habitability applies to residential leases only, majority jurisdictions decline to
extend to commercial leases, and not available under the common law. Also look to
discuss constructive eviction. Implied warranty of habitability cannot be waived as
against public policy. Look for examples of: bacteria, mold, toilets, electrical wires (if
they are connected) etc.

Hilder v. St. Peter

Retaliatory Eviction
Majority jurisdictions bar the landlord from penalizing a tenant after a tenant reports
building or housing code violations. The landlord is not permitted to terminate the lease,
raise the rent, or reduce services. It is presumed retaliatory if the landlord acts within 90
to 180 days after tenant reports. To overcome the presumption, the landlord must show
a valid, non-retaliatory reason for his or her action. Applies to periodic, tenancy for
years, and at will tenancies. Ex. Look for a tenant reporting housing code violations
(e.g., sanitary issues) and the landlord raises the rent because the tenant reported.
Reporting must occur prior to eviction proceedings being commenced.

Tort Liability
Whether a landlord should be held liable for injuries to tenants or third parties. Common
law and minority jurisdictions state that a landlord may be held liable under negligence
(duty of care); while majority, a landlord cannot be held strictly liable or liable for
negligence.

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Tenants Duties; Landlord’s Rights and Remedies

Fixtures
A fixture is a chattel that has been affixed and intended to be attached to the property.
(.e.g., toilets, water heaters, carpet, etc). If the chattel(s) are incorporated into the realty,
they become fixtures (part of the realty). Annexed chattels (fixtures not intended to be
permanently part of the realty) must be removed prior to the lease termination. Tenant
has a duty to repair damages resulting in removal of the fixture. (“What if an adverse
possessor installs a toilet, does she get take it with her if she does not succeed on her
adverse possession claim?”)

Waste
The rules governing waste in the leasehold context are much like those governing
waste in the context of life estates. Voluntary (Affirmative; Permissive; Ameliorative
Waste. According to the casebook, the duty not to commit waste is breached if a tenant
makes “such a change as to affect a vital and substantial portion of the premises; as
would change its characteristic appearance; the fundamental purpose of the erection; or
the use contemplated, or a change of such a nature, as would affect the very realty
itself, extraordinary in scope and effect, or unusual in expenditure.” There is no bright-
line that distinguishes waste from lawful activities.

Voluntary / Affirmative Waste

Occurs when the tenant intentionally or negligently damages the premises. Also
includes exploiting minerals on the property unless the property was previously
so used, or unless the lease provides that the tenant may do so.

Permissive
Tenant has a duty to make ordinary repairs to keep the property in the same
condition as at the commencement of the lease term, excluding ordinary wear
and tear. (Also look under Duty to Repair).

Ameliorative
Tenant is not permitted to make substantial alterations to the structure even if it
results in increased value of the property. Tenant is liable for the cost or
restoration.

Note: In majority states, if the premise is destroyed (e.g., earthquake, fire, flood) without
fault of either the landlord or tenant, no waste occurred and the tenant may elect to
terminate the lease. Common law requires the tenant to continue paying rent.

Duty to Repair
Tenant is under no duty to repair extraordinary or substantial repairs, nor is responsible
for ordinary wear and tear unless expressly covenanted. See Waste, above. You also
may want to mention if there is a habitability issue: Does the tenant have a duty to
repair?

Use for Legal Purpose

If the tenant uses the premises for an illegal purpose, and the landlord is not a party to
the illegal use, the landlord may terminate the lease or obtain damages or sue for
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injunctive relief. This breach is only valid if it is continuous and not occasional – e.g.,
prostitution ring.

Duty to Pay Rent

See surrender, security deposit, paying rent is an implied covenant.

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