II.

Acquisition
Acquisition by Discovery: Entails "the sighting or 'finding' of hitherto unknown or uncharted territory; it is frequently accompanied by a landing and the
symbolic taking of possession." Acts that do this include settling and making an effective occupation of the land. Discovery It gives the exclusive right to
extinguish the Indian title of occupancy, either by purchase or by conquest.
Acquisition by Conquest: taking possession of enemy territory by force, followed by formal annexation of the defeated territory by conqueror
Mintosh Rule: Indian inhabitants are to be considered merely as occupants, to be protected, indeed, while in peace, in the possession of their lands, but to be
deemed incapable of transferring da absolute title to others. Conquest gives a title, which the cts of da conqueror cannot deny.
Acquisition by Capture: the first person to take possession of a thing owns it. Rationale: rewarding labor, protecting investment in resources.
Capture of Wild Animals: capture is required to establish possession, while merely chasing an animal is not enough. Rationale: competition, ease of
administration. But, if an animal is mortally wounded but not dead or trapped, so that capture is assured, animal is considered to be captured.
Role of Custom: the custom of whaling industry was that if someone discovered the carcass of the dead whale, he would be paid a finders fee by the whaler
who killed it. The ct. rules that the common law should abide by that custom (or else the existence of the whaling industry would be threatened), so it awards
the value of the whale (minus the finders fee) to the P who actually killed it.
Duck Decoy Pond Rule: P can recover on the basis of interference with trade. Rationale: a policy consideration of societal maximization of wealth; the ct
wanted to make sure ducks would get to the market
Natural Resources: A material source of wealth/econ. value that occurs naturally; underneath, w/in or on top of land.
Rule of Capture for Natural Resources: Rule that states that a ppty owner may acquire any fugitive resource that wanders onto his or her ppty. Note, a
landowner is not allowed to drill a well on his or her land that extends to territory that is under someone elses land. In other words, one landowner cannot drill
diagonally so that the well starts on his or her land and ends under someone elses ppty. The well must start and end on the drillers ppty.
Fugitive Resource: A resource that moves freely between properties and that may be claimed by any property into which the resource moves. But it is allowed
to move out and a new owner may claim it, if on / under their ppty.
Acquisition by Find (Lost Property): Property that has been left in an unknown location involuntarily but through no one's fault. The finder of lost property
has title to the property against all the world except the true owner AND any other prior possessor (aka RELATIVITY OF TITLE).
Externalities: Externalities exist when some person makes a decision about how to use resources w/o taking full account of the effects and impact of the
decision. It is a burden/benefit you don't take into account. If we encourage taking of oil for consumption now, but dont consider the future, that is then an
externality bc we are placing a burden on future ppl and not taking it into account in our decision making.
III. Gifts
Definition: a gift is a voluntary transfer of property without payment or consideration IT is important to note that promises to make gifts in the future are not
binding; the gift occurs only when the actual transaction takes place.
Gift Inter Vivos: Gifts given while living. These include gifts that require delivery, acceptance, and the donors intent
Intent: in order for the intent of the donor to exist, the person must have the intent and mental capacity to make the gift
Delivery: this requirement exists so as to provide for a clear manifestation of the donors intention to divest herself of the title and possession. The decisive
factor in determining whether a gift has been adequately delivered is whether the putative donor has the power to reclaim the property.
Delivery Methods: (1) actual physical delivery, (2) constructive delivery, (3) delivery in writing, and (4) symbolic delivery
Acceptance: Acceptance of a gift is presumed. Refusal of a gift must be an express, affirmative act.
Gift Causa Mortis: Given in contemplation of death. The elements are identical to inter vivos, but adds that the donor at in contemplation of death.
Imminence: for a GCM to be valid, it must be given in anticipation of impending death, such as an actual life threatening illness. An abstract fear of
someday drowning is not enough.
Anticipation of Death: the old rule stated that the donor must die, but the new rule states the donor merely must not recover.
Termination: if donor recovers from illness, the gift is automatically revoked. However, if a terminally ill patent dies after making a GCM, but NOT from
the disease, the GCM is still valid. Further, the gift can be revoked prior to death by an affirmative act by the donor.
IV. Intellectual Property:
Copyright: Protects expression, not ideas. Copyright owners have the right to prevent others from reproducing their work, creating derivative works,
distributing copies of their work to the public, performing the work publically, and displaying the work publically.
Elements: (1) originality (must be an independent creation, the author must demonstrate some minimal degree of creativity), (2) Work of Authorship (literary,
music, drama, motion pictures, architectural, etc.), and (3) Fixation (the work needs to be some kind of tangible medium).
Patent: A patent grants the patent holder the exclusive right to exclude others from making, using, importing, and selling the patented innovation for a limited
period of time. They secure for limited times to inventors the exclusive right to their discoveries. Granting exclusive rights to the inventor is intended to
encourage the investment of time and resources into the development of new and useful discoveries.
Elements: The 5 elements for patentability are: (1) patentable subject matter, (2) utility, (3) novelty, (4) non-obviousness, and (5) enablement.
Trademarks: Allows for the registration of a mark (any work, name, symbol, or devise used to identify particular goods and their source)
Elements: (1) distinctiveness, (2) Non-functionality, (3) First use in trade
Right of Publicity: The right of publicity forbids the unauthorized commercial use of ones name, likeness, and other aspects of ones identity. It persists
after death, and applies to everyone. Body Parts: Once cells leave a patients body, they are no longer that patients property.
Right of Transferability: The Right to SELL + The Right to EXCLUDE. These two rights are necessary and sufficient conditions of transferability.
V. Adverse Possession
Rule Statement: Is established when someone has (1) actual possession of a piece of property that is (2) open and notorious, (3) exclusive, (4) continuous,
and (5) hostile or adverse to the true owner, for (6) the period set in the statute of limitations. Must be proven by the clear and convincing evidence std.
Policy: Promotes the socially beneficial use of land. The passage of a reasonable time period should assure security to a person claiming to be an owner. AP is
to reward those using the land in a way beneficial to the community.
Note: Adverse possession claims brought by the adverse possessor himself are brought under quiet title actions.
Quiet Title Claim: A proceeding to establish an individual's right to ownership of real property against one or more adverse claimants. An action to quiet title
is a lawsuit filed to establish ownership of real property (land and buildings affixed to land). The plaintiff in a quiet title action seeks a court order that prevents
the respondent from making any subsequent claim to the property. Quiet title actions are necessary because real estate may change hands often, and it is not
always easy to determine who has title to the property.
Note: The possessors actions are limited in nature rather than general, she may be granted a prescriptive easement rather than adverse possession.
Prescriptive Easement: An easement by prescription is one that is gained under principles of a legal concept known as "adverse possession", under which
someone other than the original property owner gains use or ownership rights to certain property. Prescriptive easements often arise on rural land when
landowners fail to realize part of their land is being used, perhaps by an adjoining neighbor. Fences built in incorrect locations often result in the creation of
prescriptive easements. If a person uses another's land for more than the statute of limitations period prescribed by state laws on adverse possession, that person
may be able to derive an easement by prescription.
Adverse Possession Elements:

! Tail
1!
Fee
Rule Statement: An estate that has the potential of enduring forever but will necessarily cease if and when the first fee tail tenant has no lineal descendants to
succeed him in possession. A fee tail is granted by O to the property to A and the heirs of his body
Life Estate
Rule Statement: An estate that will end necessarily at the death of a person. It is created by granting property to A for life. It has the potential for the
duration of one or more human lives-entitled to rents/profits from property. Can transfer, lease or alienate the estate inter-vivos for no more than her
portion/duration.
Types of Life Estates:
i. For the life of grantee
ii. For the life of other person
iii. More than one person and remainder
iv. Defeasible life estates: Determinable + Subject to condition subsequent
Present Estate / Words of Conveyance / Future Interest in Grantor / Future interest in 3rd Party
Life Estate / To A for life (Future interest, reversion) | O to A for life, then to B (Future interest, remainder) | Any of the above, but A sells the property
to C before death. (Estate for the life of another. Future Interest). / Reversion / Remainder (Vested, Contingent, Future Interests).
Waste: Conduct by the life tenant that permanently impairs the value of the land or the interest of the person holding title or having some subsequent estate in
the land. Ppl have a duty to use the land in a reasonable manner and not impose economic damage.
Affirmative Waste: Voluntary waste. Occurs when the voluntary acts of the present estate owner significantly reduce the value of the property. If Life Tenant
L wantonly destroys the valuable resident on the land, L will be liable to remainderman R in waste. Conversely, the demolition of obsolete and wortless
improvements in order to permit the productive use of the land will not constitute waste.
Permissive Waste: stems from inaction. The failure of the possessor to exercise reasonable care to protect the estate
VII. Future Interests
Definition: A future interest is a present, non-possessory interest capable of becoming possessory in the future.
Types of F.I.: (1) Reversion (2) Possibility of reverter (3) Right of entry (4) Remainder (5) E.I.
Future Interests in Grantor: (1) Reversion (2) Possibility of reverter (3) Right of entry
Future Interests in Grantees: (1) Remainder (2) Executory Interest
Reversion: Reversion is a future interest left in the grantor after she conveys a lesser estate than she had. The interest may be expressly retained or may arise
by operation of law and is VESTED.
Possibility of Reverter: A possibility of reverter is a future interest remaining in the grantor when a fee simple determinable is created and is freely alienable.
Right of Entry: (aka Right of Reentry) A right of entry arises in a grantor when he creates an estate subject to condition subsequent and retains the power to
cut short the estate, some jdx will enable alienability.
Remainders: A future interest created in a grantee that is capable of becoming a present possessory estate on the expiration of a prior possessory estate created
in the same conveyance in which the remainder is created. A remainder never divests or cuts short the preceding estate; instead it always waits patiently for the
preceding freehold estate to expire and cannot be divested from a fee simple and fee simple determinable. O to A for life, then to B if B is then living
Types and SubTypes:
A. Vested Remainders: A vested remainder is created in an ascertained person and is not subject to a condition precedent. To A for life, then to B in fee
simple creates a vested remainder in B.
1. Indefeasibly Vested: The holder of the remainder is certain to acquire a possessory estate at some time in the future, and is also certain to be entitled
to retain permanently thereafter the possessory estate so acquired.
2. Vested Subject to Open: a remainder vested in a class of persons, at least one of whom is qualified to take possession, but the shares of the class
members are not yet fixed because more persons can subsequently become members of the class. Magic Language for Vested StoO:O to A for life,
then to As children If no children!contingent. If A has B (child) still open for other children and may be vested subj to partial divestment per others.
3. Vested Subject to Divestment: a remainder vested by the operation of a condition subsequent or inherent limitation of the estate in remainder.
i. Condition Subsequent: O to A for life, then to B, but if B does not survive A, to C
ii. Inherent Limitation: O to A for life, then to B for life, then to C and his heirs
iii. Vested Subject to Open and to Complete Divestment: O to A for life then to the children of A, but if no child survives A, to B
4. Alienability: Vested remainders are alienable inter-vivos and devisable by will.
B. Contingent Remainders: A remainder is contingent if it either is limited to an unascertained person or is subject to a condition precedent. Always creates
reversion within grantor.
1. Unascertained person: This means the person is yet to have been born or one who cannot be determined until the happening of the event.
Heirs and unborn children
2. Condition precedent: An express condition set forth in the instrument, which must happen before the remainder becomes possessory.
O to A for life, then to B if B survives A
DistinguishConditions Subsequent and Precedent: Whether a condition is precedent or subsequent (vested remainder sub to divestment) depends on the
sequence of words in the instrument. If language is ambiguous, vested remainders preferred.
** B has vested remainder sub to divestment by Cs exec interest = O to A for life, then to B, but if B does not survive A, to C
** B and C have alt contingent remainders + condition precedent for B = O to A for life, then to B if B survives A, but if B does not survive A, to C
3. Alienability: In most states, contingent remainders are alienable, devisable, and descendible.
Executory Interest: A future interest in a transferee that must, in order to become possessory: (1) Divest or cut short some interest in another transferee, OR
(2) Divest the transferor in the future
VIII. Concurrent Ownership
Definition: Concurrent Ownership is a consecutive right in ownership that is divided amongst 2+ people. Three Types (1) T in C, (2) Joint T, and (3)
Tenancy in Common: Separate, but each tenant has an undivided interest in the property including the right to possession of the whole. When one co-tenant
dies, there is no right of survivorship (i.e. upon the death of a tenant in common, the interest passes down to the decedents heirs). and equal shares are not
necessary. Can have unequal shares. Without the right of survivorship, each tenant can devise or freely transfer his interest to another by a lease. [Right to
possession, no survivorship, equal not necessary, alienable]
Magic Langugage: (1) O conveys/devises Blackacre to A and B as tenants in common. (2) O conveys/devises Blackacre to A, B, and C as tenants in
common, with a undivided interest in A, a undivided interest in B, and a undivided interest in C.
Alienability: Each co-tenant can transfer his interest in the same manner as if he were the sole owner.
Presumption of Tenancy in Common: A T in C is presumed whenever a conveyance is made to two or more persons who are not husband and wife.

Actual Possession: Ordinary use of the land physically and use land as an average owner would establish actual pos. Enhancing land by building on it, fencing
it in, conducting business, or any conduct that would establish actual possession. The requirement of actual possession is designed to give the true owner notice
that a trespass is occurring. It is also designed to give her notice of the extent of the adverse possessors claim. As a general rule, the adverse possessor will
gain title only to the land that she actually occupies.
i. Color of Title Claim: is a phrase used in real estate to refer to title that may have the appearance of good and valid title to property, but in actuality, there
is either no title or a vital defect in the title that makes it ineffective. Thus, by law, color of title fails to establish ownership in land.
ii. Constructive Possession of Part: actual possession of a unitary tract of land is sufficient adverse possession as to give title to the whole of the tract of
land after the statutory period, as long as there is a reasonable proportion between the portion actually possessed and the whole of the unitary tract, and the
possessor has color of title of the whole tract.
Open and Notorious: Must sufficiently be visible to put a reasonable (inspection) true owner on notice that the property is occupied. Possession
is open + notorious when it is the KIND of use the usual owner would make of the land. The adverse possessors occupation must be
SUFFICIENTLY APPARENT to put true owner on NOTICE that the trespass is occurring . True owner does not have to know he owned the property
Other acts sufficient to satisfy Include: Building a structure 2) Clearing the land 3) Laying down a driveway 4) Mowing grass 5) Parking, storage, garbage
removal,
picnicking 6) Planting/Harvesting crops
Manillo v. Gorski- Minor encroachment doesnt satisfy open and notorious requirement of AP
Exclusive: The use is a type that would be expected of a true owner and not shared with the true owner or anybody else - ie the general public.
Means that the possessor is not sharing with the true owner or the public at large. However, people are allowed to work together to gain
adverse possession. They will just do so as tenants in common. 2 APs who possess the property jointly may acquire joint ownership by co-owners
(Ts in C). Occasional entry by the true owner may not defeat the claim
Continuous/Tacking:
i. AP must exercise control over the ppty in ways customarily pursued by owners of that type of ppty. There can be long periods claimant doesn't use it
ii. Howard v. Kunto- Summer home, still ok- intended use of home
iii. Tacking- Successive periods of AP by different persons may sometimes be combined together to satisfy the SOL requirement-but only if the claimants
interest is in privity with one another (Such as blood, contract, deed, or will). The periods of possession must pass directly from 1 possessor to the next,
without any gaps. NOT valid for trespassers.
iv. There need not be continuous possession by the same person. Ordinarily, an AP can take advantage of the periods of AP by her predecessor. Tacking may
happen to make up the full statutory period w/ the result that the final AP gets the title, provided there is privity between the successive adverse holders.
v. Privity is satisfied if the subsequent possessor takes by descent, by devise, or by deed purporting to convey title. Tacking is not permitted where 1
adverse claimant abandons + a new adverse claimant than goes into possession. Oral transfers are sufficient to satisfy the privity requirement.
Hostile or Adverse to the True Owner: Use must be non-permissive. Permission from the true owner will defeat an AP claim. The possessor
cannot have the true owners permission to be on the land. Objective test- Actions of the possessor that looks like they are claiming ownership =
under a claim of right Subjective test- The possessor must have a good faith belief that he has title = under a claim of right
i. Van Valkenburgh v. Lutz - Cant claim AP when he/she knows he does not own it despite using and erecting structures on the property
Statute of Limitations/Statutory Period: Dependent on the jurisdiction usually b/w 5-20 years. The statute begins to run when the claimant goes
adversely into possession of the true owners land. (ie the point at which the true owner could bring suit). The filing of a suit is not sufficient to
stop the period from running the suit must be pursued to judgment. However, if suit if filed before the statute runs out, and the judgment is
rendered after the statutory period, the judgment will relate back to the time that the complaint was filed.
VI. Possessory Estates
Types of Estates: (1) Fee Simple (2) Fee Tail (3) Life Estate (4) Leasehold Estates
Look for: Special technical language and duration of the estate
Fee Simple (Absolute): An interest in property that allows its holder and his or her heirs to own and possess the property in perpetuity.
Defeasible Fee: A fee simple interest that can be terminated by the occurrence or non-occurrence of an event or condition.
Fee Simple Determinable: A fee simple interest in property that is terminated automatically upon the occurrence or non-occurrence of an event or
condition.
Fee Simple Subject to a Condition Subsequent: A fee simple interest that can be terminated at the will of a future interest holder upon the occurrence or
non-occurrence of an event or condition.
Fee tail: An interest in land that is inheritable by and transferable to only lineal descendants of the original grantee.
Fee Simple Absolute
Rule Statement: An estate that has the potential of enduring forever. It is created by O, the owner of blackacre, granting land to A and his heirs/next of kin.
This estate is a form of absolute ownership, and the holder of a fee simple is commonly called the owner of the land. There are no limitations on its
inheritability and it cannot be divested, nor will it end upon the happening of any event. The highest level of ownership a person can have in any real property
is the fee simple. Ownership of a fee simple in a parcel of property means the right to own and possess that property in perpetuity (forever). However, the fee
simple itself can be subjected to various conditions and/or contingencies. Therefore, a fee simple that is completely unconditional and that bestows upon its
owner absolute unconditional ownership of property forever is known as the fee simple absolute.
Shares:
i. Spouse- Usually ii. Issue- Children/grandchildren/great-grandchildren/ further descendants iii. Ancestors- By statute parents usually take as heirs if not
issue iv. Collaterals- All persons related by blood to the decedent who are neither descendants nor ancestors are collateral kin:
Brothers/nephews/uncles/cousins v. Escheat- If no persons the property goes to the state
Present Estate / Words of Conveyance / Future Interest in Grantor / Future interest in 3rd Party
Fee Simple Absolute (forever) / O to A | O To A & his heirs | O to A in fee simple / None / None
Fee Simple Determinable (Automatic) / To A & his heirs | So long as | Until | While / Possibility of Reverter / None?
Fee Simple Sub. To Cond. Subseq. (Must Act) / To A & his heirs | But if | Upon condition that | Provided that / Right of ReEntry / None?
Fee Simple Sub. to an Exec. Limitation / Same language as above for FSD FSSCS BUT Then to X / None / Third Party
Mahrenholz: for school purposes only; otherwise to revert to grantor created a fee simple determinable. A person holding a right of reentry for condition
broken is obligated to make some effort to reclaim the property when the condition under which it was conveyed is broken. TRANSFER OF RIGHT OF
REVERTER/RE-ENTRY

2!
Joint Tenancy: Together the tenants own an undivided share of the property and regarded as the sole owner in addition to having the right of survivorship. (i.e.
upon the death of a joint tenant, the interest terminates and automatically goes to the surviving joint tenants. The last surviving joint tenant takes the property
and holds it in severalty). Elements: 1) Time (interests vested at the same time) 2) Title (interests acquired by the same instrument) 3) Interest (interests of
the same type and duration) 4) Possession (interests give identical rights to enjoyment). [IF ALL 4 ARE NOT PRESENT!TENANCY IN COMMON]. JTs
are generally disvaforable in common law, so there must be clear intent to enter this estate via those for utilities. [NO STRAWMAN |NO PASS VIA
WILL|NEED EXPRES WORDS]
Riddle v. Harmon: Spouses hold JT then wanted transferred to herself!ok? YES- No need for straw man.
Magic Language: (1) O conveys/devises Blackace to A and B as joint tenants. (2) O conveys/devises Blackace to A, B, and C as joint tenants.
Avoidance of Probate: Joint tenancy avoids probate since there is no need to change title at a joint tenants death.
Severance: Severance of one of the four unities severs the joint tenancy and destroys the right of survivorship!creates tenancy in common.
Conveyance by joint tenant: A JT may convey interest, but will sever JT and the new co owner and the old co owner would now be Tenants in Common
Mortgage by joint tenant: Mortgage usually conveys legal title and thus severs the tenancy. But in some states a security interest, rather than legal title, is
conveyed and a mortgage does not sever a joint tenancy.
Harms v. Sprague: Mortgage didnt sever JT. Mortgage doesnt have title but has security interest called a lien. Can transfer title inter vivos but not after
dead by estate.
Rights and Duties of Co-Tenants: Each tenant is entitled to possession of the entire parcel of land yet he cannot exercise that possession without coming into
conflict with the reciprocal right of his co tenant. The parties may agree among themselves that one co-tenant has the right to exclusive possession.
i. Ouster: Ouster occurs when one co tenant deprives another co tenant of the right to possession. An ousted co tenant can bring suit to collect his share of
reasonable rental value or suit of partition
Spiller v. Mackereth: When a co tenant is in exclusive possession of concurrently owned property, the majority holds that, unless there has been an ouster,
the cotenant in possession does not have to pay a proportionate share of the rental value to the co tenants out of possession. Didnt deny cotenant right to
enter/access.
ii. Accounting for Rents Received from a Third Party: Such rents must be shared equally with the other co tenants through contract or ouster.
Swartzbaugh v. Sampson: Boxing pavilion erected, husband leased despite wife saying no. JT may without consent of his cotenant lease only to extent of his
interest in property.
iii.
Co-tenants as fiduciaries: Generally co tenants are not fiduciaries to each other
iv.
Adverse Possession: A cotenant can become an adverse possessor only upon clear notice of repudiation of the common title being given to the other
co tenants. Exclusive possession alone is insufficient.
v. Partition: Can terminate co tenancy and divide proceeds ! cool, if notPARTITION
Delfino v. Vealencis: Partition in kind is more favorable; Partition by sale is preferred in modern practice
Partition by Sale: 1) Physical attributes of land make partition impractical 2) Interests of the owners best served by such
Community Property and Separate Property (690):
- Separate Property:
- During Marriage: Spouses own their own property separately, except when they choose to share or mingle.
- On Divorce: Statutes provide for equitable distribution of property owned by each of the parties.
- On Death: Many states require a share of the estate to go to the spouse, regardless of the will.
- Community Property:
- During Marriage: Property owned prior to and property acquired after marriage by gift, inheritance, etc. is separate. All other ppty is common.
- On Divorce: Separate property to each and half of community property, or equitable distribution.
- On Death: Can dispose of separate property and half of community property by will.
IX. Landlord Tenant
i. A leasehold is an estate in land. The tenant has a present possessory interest in the leased premises, and the landlord has a future interest (reversion).
Certain rights and liabilities flow from this property relationship between LL and T.
ii. All of the tenancies may be created by an express provision in writing
iii. Short term leases for one year or less may be oral (most jdxs, bc SOF in K law)
iv. Those that arent and are for more than a year will be treated as a tenancy at will
v. Oral leases for a year to commence in the future is validbecome tenancy at will then periodic/etc
Types of Tenancies and Their Creation:
Tenancy for Years: A tenancy for years is an estate that lasts for some fixe period of time or for a period of time computable by a formula that results in fixing
calendar dates. The period may be a certain number of days, weeks, years, etc.; and may be more or less than a year. It may be determinable or on condition
subsequent. The termination of this estate expires at the end of the stated period without either party giving notice to the other.
Creation: by written leases, and, if 1>yr, must be memorialized via SOF.
Length: most states have statutes limiting the length of a tenancy for years lease, (i.e. farm lease is 51yrs>, and urban property is 99yrs>). Any exceeding of
those lengths voids the k.
Termination: ends automatically on its termination date. Also, LL has right to terminate if T breaches any lease covenants (called the right of entry). Also,
TFY terminates upon surrender, where the T gives up his leasehold interest to the LL and the LL accepts.
Language: Tenancy of no fixed period terminable on some event = O leases to A for the duration of war
Language: Tenancy of Years Determinable. A term of years may be made terminable on some event, or subject to condition subsequent, in the same manner
as a freehold may be made terminable. = L rents to T for 10 yeas so long as used for a sawmill- term of years determinable
Periodic Tenancy: A periodic tenancy is a tenancy for a period of some fixed duration that continues for succeeding periods until either the landlord or tenant
gives proper notice of termination. If notice is not given, tenancy is automatically extended for another period. Any and all conditions and terms are carried
over are applicable in each subsequent period, unless expressly stated. The beginning date is ALWAYS certain, but the termination date is ALWAYS
uncertain.
Creation: by agreements only as to rent period
Note: Land leased w/o a set date for termination but provision is made for payment monthly, yearly, etc- the T has a PT measured by rental periods
Note: Where the lease provides for annual rent payable monthly-Common law treats it year to year even if the rent is to be paid in monthly installments. This
view is sometimes only applied to agricultural land and not dwellings, but the minority view is that month-to-month= just that and applied to dwellings not
land.

Why: If one year= 6 months notice, if month to month=landlord or tenant can terminate on one months notice
Hold over from periodic tenancy?: Landlord may consent to tenants staying over but tenant is liable for further rent. If its an invalid lease, become tenancy at
will and then tenancy from period to period
Creation: (1) Express Agreement: LL leases to T from month to month (2) Implication: a period tenancy will be implied if the lease has no set termination
but does provide for the payment of rent at specific periods. LL leases to T at a rent of $1,000 payable monthly in advance.. (3) Op of Law:
Notice of Termination: Renewal is automatic and termination only with proper notice. Notice must be equal to the length of the period itself with exception
that if it is from year to year, 6 months is ok. Notice must fix the last day of the natural lease period as the date for termination and must be given so that the
other party has the full notice period.
Tenancy at Will: A tenancy of no stated duration that endures only so long as both landlord and tenant desire, either party has the right to terminate at
any time (at will). This kind of tenancy can arise expressly or by operation of law when intended tenancy fails. No assignment can occur. No notice needed
but some jdx will say 30 days notice.
Note: If the lease gives only the LL the right to terminate, the ct. will imply the same or similar right to the T so that the lease creates a tenancy at will
Note: If the lease gives only the T the right to terminate, the ct. usually does NOT imply the same for the LL. Rather, most cts will interpret this form of
conveyance as creating a life estate or fee simple, either of which is terminable by the tenant
Creation: must be created expressly, with an understanding between the parties that either can terminate at any time. If it is not express, then the payment of
regular rent will be interpreted as a periodic tenancy.
Termination: (1) At will, at any time with proper notice and a reasonable time to vacate. (2) By operation of law via: death of either party, the T commits
waste, T attempts to assign his tenancy, LL transfers his interest in the ppty, or the LL executes a term lease to a third person
Holdover Tenant: When a tenant who was rightfully in possession who then wrongfully remains in possession after termination of the tenancy, he is called
such-after end of tenancy. Termination occurs when landlord evicts or elects to hold the tenant to another term!which may turn into periodic tenancyIf
holds over willfully some jdx impose double rent.
Landlords Duty to Deliver Possession
Legal Right to Possession: A landlord has the duty of delivering to the tenant the legal right to possession
Actual Possession: Majority: English rule says that Landlord has duty to put tenant in actual possession Minority: American rule says that Landlord owes no
duty to tenant to put in actual possession
Landlords Duty Not to Interfere with Tenants Quiet Enjoyment
Covenant of Quiet Enjoyment: A tenant has a right of quiet enjoyment of the premises without interference by the landlord. If not expressed in the lease, such
a covenant is always implied. It is implied in everyone lease a covenant that neither the LL nor someone with paramount title (e.g. a prior mortgagee of the LL
who forecloses) will interfere with the tenants quite enjoyment and possession of the premise. This covenant may be breached in 3 ways: actual, constructive,
and partial eviction.
Actual Eviction: Where the tenant is physically evicted from the entire leased premises the tenants rental obligation ceases. When a T is deprived of the
occupancy of some part of the demised premise / deprived of material part of the leased premise. Partial? Any portion thereof-rent is not to be paid until put
back into poss of such premises
Constructive Eviction: Where, through the fault of the landlord, there occurs a substantial interference with the tenants use and enjoyment of the leased
premises and can no longer enjoy it as contemplated. When the lessor, w/o intending to oust the lessee, does an act by which the latter is deprived of the
beneficial enjoyment of some part of the premises. The T has right of election, to quit, and avoid the lease and rent, or abide the wrong and seek his remedy in
an action for the loss of enjoyment. CE happens when an interference with possession so serious that it deprives the lessee of the beneficial enjoyment of the
leased premises.
T must show: 1.) LL or persons acting for him breached a duty to the T, 2.) the Breach Substantially interfered or deprived the T of her use and enjoyment of
the premise 3.) T gave LL proper notice and reas. time to repair 4.) After reas. Time, T vacated the premise
Remedies: (1) Tenant can stay and receive a rent abatement for the unusable portion. (2) Tenant can leave the property and is not responsible for rent.
Partial Eviction: The conventional rule holds that where a landlord commits a partial actual eviction, even if from part of the premises only, the tenant is
relieved of ALL liability for rent notwithstanding continued occupation of the balance. The restatement does not agree, and says the tenant can get an
abatement for the unusable portion, but may not be relieved of ALL rent. Partial eviction by the LL relieves the T of the obligation to pay rent for the ENTIRE
premise, even though the tenant continues in possession of the remainder of the premise.
Non-Eviction Damages: If the interference with ppty is not so substantial as to rise to constructive or actual eviction, the tenant should be, and usually is, able
to stay in possession and sue for compensatory damages equal to the difference between the value of the property with and without the breach.
Landlords Duty to Provide Habitable Premises
Duty at Inception of Lease: Under common law, the LL has no duty repair or maintain the premises. In other words, the LL has not duty to make dwelling
habitable caveat leaseee. Tenant should inspect premises otherwise takes it as is. HOWEVER, this rule has been statutorily been modified in most states for
residential tenancies w/ Implied Warranty of Habitability.
Exceptions: Furnished home for short term, hidden defects, building under construction
Implied Warranty of Habitability: An implied term in every residential lease that some jurisdictions attach so that a landlord must, under an implied term of
every lease, assure that the leased premises are fit for living in. The standard usually applied is the local housing code if one exists. If one does not exist, then
the ct. has to ask whether the conditions are reasonably suitable for human residence.
Breach of Implied Warranty of Habitability: (when the premises become "uninhabitable" in the eyes of a reasonable person) A substantial violation of an
applicable housing code will serve as the prima facie evidence that there has been a breach of the warranty of habitability. One or two minor violations
standing alone which do not affet the health or safety of the tenant, shall be considered de minimus and not a breach of the warranty. However, not all cities
have building codes. The ct. should inquire whether the claimed defect has an impact on the safety or health of the P.
Reste- Water in office building (not habitable)
Duty to Repair After Entry by Tenant: Under common law there is no duty to repair. HOWEVER implied continuing covenant on habitability now.
Remedies: (1) Terminate the lease and move out and recover damages (as in constructive eviction) (2) Continue lease and make repairs directly, and offset the
cost against the future rent obligation 3.) Breach of duty can be used as defense against landlords action to collect rent
Hilder v. St. Peter- no hot water, backed up sewage etc - court awarded damages
Tenants Duties:
Duty to Pay Rent: Tenant has duty to pay rent at reasonable rental value
Duty to Occupy: No duty unless would result in waste
Duty to Repair: Absent the landlords duty to repair a tenant has duty to make ordinary repairs to maintain property. Covenant to repair also makes tenant
liable-and if destroy, must rebuild. However, in a residential lease, even if the T covenants to repair the LL will usually be obligated to repair except for
damages caused be the T.
Duty Not to Damage Premises: T liable for acts that substantially damage or change the premises. Ts can make improvements if the $ is not diminished
Duty to not use Premises for Illegal Purposes: If T uses the P for illegal purposes, LL may terminate, obtain damages, or injuc. Relif.
Duty Not to Disturb Other Tenants: Dont be a nuisance

Acts of 3rd Party Relieving Tenant of Duty: A T may be discharged from duty to pay by actions of others that make it impossible to continue the lease aka
by some sort of destruction, eminent domain etc
Rights and Duties Relating to Fixtures: At common law fixtures cannot be removed by a tenant at the end of the lease. Exception: Tenant is permitted to
remove trade fixtures in businesses or in modern trends the law allows for such removal as long as no substantial damage occurs.
Landlords Remedies: No self-help unless peaceable entry
Eviction of Tenant: To terminate for non payment of rent, must first demand then give notice of termination. MUST do judicial process-no self help
Berg v. Wiley - unautorized changing of locks- cant unless there is a reentry clause/peaceable. Tenant can recover if removal for forcible or landlord had no
right to possession. Note that changing locks / confrontation will usually never be peaceable, thus this is the old rule, and cts now prefer LLs to go through
judicial routes to remedy the situation.
Abandonment by Tenant: Landlord can terminate the lease. Landlord must mitigate damages
Sommer v. Kridell- Leasee broke lease and then lessor didnt want to rent it out
Assignment and Subletting
Assignment: Unless the lease prohibits, a tenant can assign her interest in the lease to someone else. The assignee comes into privity of estate with the landlord
and can sue on covenants of the land
Sublease: Unless lease prohibits it, a tenant can sublease for less than his amount of time on the lease. No privity between sublease and landlord
Note: (1) Original tenant retains reversion and (2) Right of entry retained by tenant to subleasee upon default in rent
Duty to Pay Rent: Landlord can sue anyone in privity of contract or privity of estate with him
Assignment LL can sue either tenant or assignee unless reassigned to 3rd party
Sublessee: is not liable to landlord for rent
Covenants Against Assignment or Sublease: Landlord may refuse but it must be reasonable
Covenants Running to Assignees: If in privity enjoys as a regular tenant would
X. Easements
Definition: An easement is a grant of an interest in land that entitles a person to use the land possessed by another. The right of 1 person to exercise a limited
form of ownership on, or possession regarding, the ppty of another.
Dominant Tenement: The land that is benefited by an easement appurtenant; the land belonging to the holder of the easement appurtenant.
Servient Tenement: The land burdened by an easement, whether an easement appurtenant or an easement in gross.
Types of Easements:
Negative vs. Affirmative Easements
Affirmative Easement: Entitle the holder to enter upon the servient owner and make an affirmative use of it. An easement entitling a person to use the ppty of
another for a limited purpose.
EXAMPLE: Dennis (D) and Mr. Wilson (W) are neighbors. The driveway in front of Ds house leads to Maple Avenue. However, D would also like to be
able to cut through Mr. Ws house to access Main Street by foot. He and Mr. W therefore make a deal under which D will pay Mr. W a one time fee of $10,000
and Mr. W will grant D the right to use Mr. Ws ppty to access Main Street by walking within the path outlined in red. Although Mr. W still owns and
possesses his property, D owns an easement in the property of Mr. W, bc he owns the right to use it for a specified purpose. Keep in mind that Ds right to
use the ppty is limited to the terms of the easement. If D walks outside the red path area, in violation of the terms of the easement, Mr. W would have an action
against him for trespass.
Negative Easement: Compels the possessor of the servient owner to refrain from engaging in activity upon the servient land that he would otherwise be
privileged to do. An easement entitling a person to prevent another person from making or exercising a certain use of his or her ppty.
EXAMPLE: Dennis and Mr. Wilson are neighbors. Dennis and his friends have formed a rock band known as The Backyard Band. Unfortunately, their
practices are loud and the loud music drives Mr. Wilson crazy. Mr. Wilson offers Dennis $20,000 if Dennis grants him the right to prevent rock music from
being played loudly on Dennis ppty. Dennis accepts. In this case, Mr. Wilson owns a negative easement in Dennis property. That is, Dennis still owns and
possesses the ppty, but Mr. Wilson has the right to prevent certain uses of that property, in this case, the playing of loud music on the ppty.
Easement Appurtenant vs. Easement In Gross:
Preference when Ambiguous: If the easement benefits the use of a parcel of land, it will be an easement appurtenant. Otherwise, it will be an easement in
gross. If it is not clear which type of easement is being created, courts will assume the creation of an easement appurtenant.
Easement Appurtenant (runs with the land auto transfer): An easement appurtenant is an easement that is held by a person in his or her capacity as the
owner of land that is being benefited by the easement. In other words, an easement appurtenant benefits another land and the owner of that land, not simply
another person. If an easement benefits its owner in the use of another tract of land, it is appurtenant to that land. The land benefitted is called the dominant
tenement (owner); the land burdened is the servient tenement (owner). The servient owner usually is, but does not have to be, adjacent to the dominant owner.
The benefits realized must be directly beneficial to the possessor of the dominant tenement in his physical use and enjoyment of the tract of land. The key
feature of the easement appurtenant is that the easement is considered to be held by the owner in his or her capacity as owner of the dominant tenement.
Therefore, if the dominant tenement is sold or transferred, the easement will automatically be transferred along with the land to the party to which the
dominant tenement is being transferred.
EXAMPLE: Dennis holds an easement appurtenant that allows him to cross over Mr. Wilsons property on the path outlined in red, to access Main Street.
Dennis later sells his property to Sue. The easement gets transferred along with the property to Sue. Sue now has the same right to cross Mr. Wilsons property
as did Dennis when he lived there. Dennis right to walk on that path, on the other hand, is extinguished because he no longer owns the dominant tenement.
Note: Benefit transfers with the land, whether or not mentioned in conveyance: (1) If transferred by dominant tenement, benefit is automatic. (2) If transferred
by servient owner.
Easements in Gross (does not run with the land): The easement in gross is the counterpart to the easement appurtenant. An easement in gross is owned by a
person in his or her private capacity and not in his or her capacity as owner of any particular parcel of property. Essentially, any easement that is not an
easement appurtenant is an easement in gross. If an easement does not benefit its owner in the use and enjoyment of his land, but merely, gives him the right to
use the servient land, the easement is in gross. No dominant tenement, and does not transfer.
EXAMPLE: Mike lives in Nirvana. He enjoys taking his boat out for some quiet relaxation time on Nirvana Bay. His boat is stored in a boatyard that is near
Nirvana Beach, from where he can launch his boat. However, the access to Nirvana Beach from the location in which Mikes boat is stored is blocked by the
property of Miser. Miser stubbornly refuses to allow anyone to walk over his property. So, Mike makes a deal with Miser. The terms of the deal are that Mike
is to pay Miser $5,000 in return for Misers granting Mike the right to carry his boat across Misers property to access Nirvana Beach. In this case, Mike has an
easement in gross because the easement does not relate to Mikes ownership of a specific piece of property. The easement is personal to Mike. Since there is no
property that is the dominant tenement, Mike will never lose this easement
Rule: An easement in gross is assignable and divisible, but if divided, all those holding an interest must act as a single entity.
Distinguished from License: Oral or written permission given by the occupant of land allowing a licensee to do some act that otherwise would be a trespass. It
is unlike an easement bc a license can be revoked, whereas an easement cannot be revoked, A license is permission to go on land belonging to the licensor. A
license is revocable at the will of the licensor. However may become irrevocable under the rules of estoppel-improved/relied.

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Creation of Easements: Easements may be created by written express grant or reservation, implication, or by prescription
By Express Grant or Reservation:
By Express Grant: The creation of an easement by 1 pty expressly transferring the easement 2 another pty. The most straightforward method of creating an
easement is by express grant. This occurs when the owner of the servient tenement actually gives the easement to the owner of the dominant tenement.
As we discussed earlier, a grant is assumed to be forever unless noted otherwise in the terms of the grant. Easement created by grant and thus requires a written
instrument. If oral-license. Exceptions include: Fraud, part performance, implication, prescript and estoppel. Duration varies, if forever- Easement in fee
simple. Ambiguous?- Easement or Fee simple? Fee simple unless restricted
By Express Reservation (Easement By Reversion): The creation of an easement by one party expressly reserving the right to retain an easement in property
that is being transferred. An easement may be reserved by the grantor over the land granted. If the grantor conveys land, reserving an easement, the land
conveyed is the servient land. Also this is a re-grant of a new easement, not previously existing. Majority - Only for the grantor. Minority - Willard v. First
Church-can be conveyed to 3rd parties
Example: Archie and Jughead are neighbors. Each house has a driveway on front of it. However, Jugheads driveway is always filled to capacity because he parks his
hamburger selling trailer there. So, he always parks in Archies driveway. Archie consents to this arrangement because he and Jughead are friends and because he has
extra room in his driveway anyway. As it stands, Jughead has a license to park in Archies driveway, which Archie can obviously revoke if he so chooses. One day,
Archie decides to sell his house to Reggie. However, Archie is worried that Reggie will not allow Jughead to continue parking in the driveway. So, Archie has a
provision inserted into the deed that states that Archie reserves the right of Jughead to park in the driveway. Reggie agrees to the provision and accepts the deed. Archie
has reserved an easement for Jughead in the property. Jughead has an easement (probably an easement appurtenant) that allows him to park in the driveway forever.

By Implication (Easement By Implication) Two Types: An easement that is not created by express statements between the parties; but as a result of
surrounding circumstances that dictate that an easement must have been intended by the parties. Even if an easement is not created expressly, it can be created
by implication. That is, if the circumstances surrounding a grant of property indicate that the grantor must have intended that a party retain or obtain an
easement, a court can infer an easement even though the easement was not expressed. There are two manners in which an Easement can be created by
Implication
By Implication by Existing Use (Prior Use): If property that is owned by a single person is split by a grant of part of that property to someone else, or by
grants of pieces of the property to different grantees, and it is apparent that an easement would be required for the continuing use of the property in the manner
that is has been used until now an easement may be implied. Had to have had an existing use that was continuous and apparent/reasonably discoverable (put
person on notice when they bought land).
Elements: (1) the dominant tenement and the servient tenement must have been owned by the same person, (2) the prior use must have been reasonably
necessary for the use and enjoyment of the ppty, (3) the prior use must have been continues, not just sporadic, and must have been active at the time that the
ppty was transferred (aka A must have been using the path on a consistent basis at the time fo the sale), (4) the parties must have intended that the prior use
should be allowe to continue after the transfer of the ppty, and (5) it must have been apparent to any observer that the use has been taking place. This does not
mean actual knowledge, bu that merely an observer watching the ppty would have observed the usage.
Example: Assume that Fred owns the entire estate (within the black box). Fred has always lived in the house (outlined in brown) on Parcel A. Every morning,
he leaves his house and walks along the path outlined in red to the bus stop on Main Street, to catch the 8:00 AM bus to work. One day, Fred decides that he
does not need so much land. Therefore, he splits the estate into two parcels, along the grey dotted line, into Parcel A and Parcel B and he sells Parcel B to
Barney. In the deed, nothing is mentioned about Fred being allowed to walk on the path to Main Street. Nevertheless, if the court determines that it is clear that
Fred wanted to keep an easement allowing him to walk across Parcel B to the bus stop, the court can infer an implied easement that is reserved by Fred.
By Implication by Reasonable Necessity (Necessity): An easement can be implied from necessity when the owner of a parcel divides the parcel in a
manner that deprives one of the resulting subdivisions of access to something that is absolutely necessary for the use and enjoyment of the property, such as a
public roadway. Doesnt have to be strictly necessary but just reasonably so. Highly convenient.
Example: Omar owns a lakeside, square parcel of property, which he would like to divide and sell as subdivisions He divides up the property such that Alan gets the
middle section of the property, and Beth gets the remaining outer section of the square property (think square donut). Alans property is surrounded on three sides by
beths property and on one side by the lake. Beths property backs up to the roadways. In this case, unless alan is a fish or unless he likes to take his boat out every time
he wants to get a quart of milk from the store, alan will not be able to reasonably enjoy his property unless he receives an easement to cross over beths land to access the
roadways. Therefore, a court will likely infer an easement that is reasonably necessary to cross the road to allow alans use and enjoyment of his property.

By Creation by Prescription (Easement By Prescription): An easement by prescription is one that is gained under principles of a legal concept known as
"adverse possession", under which someone other than the original ppty owner gains use or ownership rights to certain ppty. Prescriptive Easements run with
the land and are binding on subseq owners of servient estates. If a person uses anothers land in a certain way for a certain amount of time, he may acquire an
easement (right to do specific acts on anothers land) to continue that use. In order for 1 to obtain a prescriptive easement over anothers land, most cts require:
Elements: (1) Actual Use, (2) Open and Notorious (Visible to put owner on notice of use), (3) Continuous (For period of time that is not interrupted for long
periods of time. Constant not necessary, as long as frequent), (4) Hostile/Under claim of right (Use as a reasonable owner would without permission from
servient owner), and (5) Statutory period (Through the requisite period).
Example: John owns a parcel of land. For 25 years, every day, Mike walks across the same path on Johns ppty to access a road beyond Johns ppty. John never gave
Mike permission 2 do so. By such continuous, open and hostile use, Mike can gain an easement that allows him to permanently walk across the ppty by prescription.

Note About Elements: The one difference between the elements necessary for easement by prescription and those necessary for adverse possession is the
element of exclusivity. Recall that for property to be acquired by adverse possession, the possessor must be in exclusive possession of the property for the
entire statutory time period. However, in the case of an easement by prescription being acquired, an exclusivity requirement would make no sense because the
use of property that constitutes an easement is inherently shared with the owner of the property. Therefore, the acquisition of an easement by prescription does
not require that the use be exclusive.
By Estoppel: Easements created by reasonable reliance (owner knew of reliance and user was justified in relying) on the use and improved it with investment,
or improvements in reliance on that easement. - Holbrook v. Taylor
Scope of Easements: The intent of the parties determines the scope. We want to look at the following factors.
(1) How Easement was Created: Expressly? - Look to instruments language, (2) Intention of parties, (3) Reasonably Foreseeable Changes by parties (4)
Changes in Use that are required to achieve the purpose of the easement under modern conditions, (4) Increase of the burden?: Cannot use the easemet to
burden/substantially interfere servient estate
Transfer of Easements:
Appurtenant: Transferred along with the coveyance of dominant and servient land, burden transferred
In Gross: Old rule-No, as per RST, except for commercial use. New-Yes if parties so intend
Termination of Easements:
Unity of title: Easement is extinguished when 1 person acquires title 2 both the servient and dominant land/use- NOT revived after subsequent divisions
Dominant Owner: (1) Released by writing. (2) Oral release from the dom owner not valid unless accompanied by an act showing intent. (3) Non-use or misuse not extinguishingIMPOSSIBILITY of achieving the easements purpose. (4) When necessity ends
Servient Owner: (1) Destruction of the servient land. (2) Terminate by prescription
Methods of Terminating Easements:

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Release: the easement owner may agree to a release, IN WRITING (bc of the SoF)
Expiration: if the duration of an easement is limited in some way, it ends through expiration, at the end of the stated period. An easement created to end upon the occurrence of
some event (sometimes called defeasible easement) expires automatically if and when the stated event occurs
Merger: An easement ends by merger if the easement owner later becomes the owner of the servient estate
Estoppel: if the servient owner reasonably relies upon the statement or representation by the easement owner
Abandonment: Mere non-use does not constituted abandonment, but in several states a prescriptive easement ends by abandonment upon non-use for the statutory period of time
Condemnation: if the government exercises its eminent domain power to take title to a fee interest in the servient estate for a purpose that in inconsistent with the continued
existence of the easement
Prescription: if servient owner wrongfully and physically prevents the easement from being used for the prescriptive period, the easement is terminated
Public Trust Doctrine: The principle that certain natural and cultural resources are preserved for public use, and that the government owns and must protect and maintain these
resources for the public's use. For example, under this doctrine, the government holds title to all submerged land under navigable waters. Thus, any use or sale of such land must be
in the public interest.
XI. Covenants
Real Covenant: A contractual obligation that relates to the ownership and/or use and enjoyment of real property. It is a covenant enforceable at law that permits, under certain
circumstances, covenants to run in favor of and against successor owners.
Equitable Servitude: An agreement between two or more parties that restricts the right of use or enjoyment of one or more parcels of property that can be enforced through equity
(ie. by specific performance).
Remedies: A covenant is enforceable by monetary damages and a servitude is enforced by an injunction to comply with the servitude.
RC Example: Audrey and Zach are neighbors. Audrey lives in a comfortable two story house. One day, she finds out that Zach is planning on building a supermarket on his
property. Audrey is very worried that this will increase the flow of people and the noise level in the area. Therefore, she offers Zach $50,000 if he promises to never build anything
other than a residence on his property. Zach agrees. In this case, there is a real covenant between Zach and Audrey. Although Audrey does not own an interest in Zachs land, and
thus does not have an easement, Zach is bound by the covenant to abide by the terms of their agreement.
Touch and Concern: The status that a cov. has with regard to a particular parcel of land if the terms of the cov. call for actions or restrictions that r n regard 2 that parcel of land
Privity: A successive or mutual interest by two or more people in the same property that exists at the time that such property is transferred.
Horizontal Privity: Privity between the parties who agree to a covenant or equitable servitude.
Vertical Privity: Privity between transferor and transferee of property that is bound by a covenant or equitable servitude.
Covenants vs. Easements: Although covenants are similar to easements in that in both cases, the use of land is being restricted or enhanced by an obligation owed by the property
owner to another party, real covenants differ from easements in that they are not considered ownership interests in land. Real covenants are promises. They can not be acquired by
implication, necessity, prior use or prescription. They are agreements and thus can only be created by promises. Once in existence though, there is little practical difference
between a negative easement and a real covenant.
Enforcing Real Covenants Against Successor Owners: The most important question regarding successor owners is whether the burden runs with the servient land. In other
words, if the owner of the burdened land sells or transfers the property, will the covenant still apply to the transferee? The rule is that the burden of the real covenant will run with
the land if six conditions are met. Essentially, these six conditions boil down to one idea: if the transferee knew or should have known about the covenant and its fair to bind the
transferee to the terms of the covenant, then the burden will run with the land. The 6 Conditions Are: (1) The covenant must have been in writing, (2) the intent of the original
parties must have been for the covenant to run with the land, (3) the covenant must touch and concern the land, (4) Horizontal Privity, (5) Vertical Privity, and (6) the transferee
must have had notice, or reason to have notice, that the covenant existed at the time that the transferee took possession of the burdened estate.
Writing in order for a covenant to be enforceable, it must first comply with the SOF, which means it must be in writing
Intent the parties must intend for the rights and duties to run with the land (automatically transfer). Look for express language and his heirs or assigns or implication from
them totality of the document and the circumstances
Touch and Concern generally means that the person seeking enforcement must establish that the benefit or burden affects both the promise and the promisor as owners of land
and not merely as individuals. In other words, the covenant must be in connection w/ the parties status as landowners.
Horizontal Privity (Burden Only) for the burden to run, the original parties to the covenant must have privity of estate at the time of the agreement creating the covenant is
entered into. This means that there must be some shared ppty interest apart from the covenant itself. (Note: HP is not required for the benefit to run).
Vertical Privity The owner of the servient land must have voluntarily transferred the land to the successor owner for the burden to run with the land. The successor to ppty can
be held to the covenant (ie the burden runs) only if title to the entire servient estate (as measured durationally (e.g. a fee simple interest), not geographically (e.g. 20 acres)) can be
traced back to the promisor. The successor to the ppty can enforces the covenant (i.e. the benefit runs) as long as the ppty interest possessed by the successor is at least some
portion of the ppty interest held by the promisee).
Note: The difference between horizontal and vertical privity can be a confusing one. Horizontal privity is between the parties that made the covenant. Vertical privity is between
the people who made the covenants and the people to whom they are transferring the property.
Note: The other question becomes whether the benefit can run with the land if the benefited land is transferred to a third party. In our above examples, suppose Big Bird had
transferred his land to Snuffalufagus? Would Snuffalufagus be able to enforce the terms of the covenant that Big Bird had with Oscar. Thankfully, the rule here is quite simple. A
benefit runs with the land if elements 1,2,3 and 5 above (writing, intent, touch and concern and vertical privity) are present. The elements of horizontal privity and notice are not
necessary for a benefit to run with the land.
Affirmative Covenants: Requires the holder of the servient estate to do something, increasing her obligations in connection with enjoyment of the land
Negative Covenants: Must restrict the holder of the servient estate in his use of that parcel of land
Notice- burden only: A subsequent purchaser without notice of a burdening covenant is not bound by it; notice must be constructive (recorded in chain of title) or actual (told the
covenant exists) Tulk v. Moxley: One who purchases property with knowledge of restrictive covenants burdening the land must honor the covenant.
Restatement of Servitudes: Under RSP, VP is discarded for both burden and benefit. Instead looks to neg. or af. covenants. Neg. runs to successors bc they are interests in land.
Benefits and Burdens run to successors to an estate of the same duration, but not to person who succeed to lesser estates
Covenants can be Terminated in Several Ways:
Merger: on the basis of unity of ownership of the benefit and burden by the same person
Formal Release: Which is normally written and recorded
Acquiescence: Arises when the P has failed to enforce the servitude against other breaches and then seeks to enforce the servitude against the D
Abandonment: it makes the servitude unenforceable as to the entire parcel rather than only as to the P immediately involved
Laches (an equitable doctrine): which involves an unreas. delay by da P to enforce a servitude against the D causing prejudice to the D (laches does not extinguish the servitude,
but it does bar enforcement)
Unclean Hands (an equitable doctrine): according to which the court will refuse to enjoin a violation of a servitude that the P previously violated
Estoppel: if the D has relied upon the P's conduct making it inequitable to allow the P to enforce the servitude
The Changed Circumstances Doctrine: In property law, a court will terminate a covenant, or at least refuse to enforce it, when the circumstances in the area, the actual uses of
land, have changed so much that the covenant cant achieve its purpose anymore. Consider a covenant restricting use of a lot to residential uses. If the surrounding properties
eventually change from residential uses to commercial uses, the benefited land can no longer get any real benefit from restricting the lot to residential use. So the covenant is
unenforceable or terminated.
Equitable Servitudes: An equitable servitude is similar to a real covenant. It is a promise that restricts the use of land in some way that is designed to be enforced with specific
performance, rather than with monetary damages. In other words, while covenants are usually enforced by the awarding of monetary damages to the aggrieved party, equitable
servitudes are enforced with an injunction preventing the use of the property in the manner that is proscribed by the servitude. Since equitable servitudes are similar to real
covenants, it does not pay to define them from scratch. Instead, we will discuss the differences between equitable servitudes and real covenants:
No Privity Required to Run with the Land: For an equitable servitude to run with the land, no privity (horizontal or vertical) is required. Thus, for an equitable servitude to be
binding upon the successor owner of the servient property, the only elements that are required are elements 1,2,3 and 6 (writing, intent, touch and concern and notice) above.
Note that the notice requirement is also satisfied, as in the case of a covenant, if the successor owner should have known of the covenant under the circumstances.