Property Law

THE APPROACH
When approaching a property question,
what 2 broad areas should you consider?
Approach
Step 1: Rights in land
a. Possessory interest
b. Rights incidental to
ownership in land
c. Rights to use anothers Land
Step 2: Real Estate Transactions
Conveyance & Mortgages
Rights in Land
There are 5 types of possessory interests

1) Present Estates
2) Concurrent Estates
3) Future Interests
4) Landlord/ Tenant
5) Taking of Possessory Interest
 Possessory Interests: Present
Estates

Fee Simple Absolute

Defeasible Estates
a) Fee Simple Determinable
b) Fee Simple Subject to Condition
Subsequent
C) Fee Simple Subject to Executor Limitations
Life Estates
Fee Simple Absolute
Definition: A fee simple absolute is the
broadest estate possible, with absolute
ownership of an undivided interest for an
unlimited period of time

Rule: property held in fee simple absolute

can be freely divided, sold, bequeathed or
inherited. (freely devisable, descendible
and alienable)
 Defeasible Estates
Definition: Defeasible estates are estates
that are subject to termination upon the
occurrence of a specified event
3 Types of Defeasible Estates
Fee Simple Determinable
Fee Simple Subject to Condition
Subsequent
Fee Simple Subject to Executory Limitations
Defeasible estates are freely transferable.
It can be divided, sold, bequeathed, or
inherited subject to stated condition or
event
Defeasible Estates:
Fee Simple Determinable
Definition: a fee simple determinable is a
defeasible estate that will automatically
terminate upon a stated event or violation
and revert back to the grantor or his
successors in fee simple absolute.
Defeasible Estates:
Fee Simple Subject to Condition Subsequent
Definition: A fee simple subject to condition
subsequent is a defeasible estate that upon the
event of a certain stated event or violation, it
may be terminated by the grantor. The
Grantor retains the right of entry to regain his
land, but must make an affirmative action in
order to do so.

Forteiture is not automatic

Defeasible Estates:
Fee Simple Subject to Executory Limitations
Definition: A fee simple subject to an executory
interest or limitation is a defeasible estate that
provides for the passing of ownership from the
grantor to a grantee (Springing executory
interest) or from one grantee to another
(shifting executory interest) upon the
occurrence of a stated event or violation of a
stated condition
 Fee Simple Subject to Executory
interests

BAR TIP: on the exam, look for :

to X and her heirs, but if Z happens, then to

Y (shifting)
Or
To X, if and when Z happens (Springing)
Life Estate
Definition: A life estate is an interest in
land measured by the life of the grantee
Rule: upon the death of the life tenant, the
interest automatically reverts to the
grantor (reversion) or shifts to a third party
(remainder)
O conveys blackacre to A for Life and then
to As heirs in fee simple
Possessory Interests
concurrent estates
Tenancy in common
Joint Tenancy
Tenancy by the entirety
Possessory Interests
Tenancy in Common
Definition: A tenancy in common is a
concurrent estate in which the cotenants
own a separate and distinct share of the
property

Rule: each cotenant owns an individual part

of the whole, but each has a right to
possess and enjoy the whole
 Possessory Interests
Tenancy in Common

Please note:
1. Each cotenants interest is descendible, divisible
and alienable
2. Wrongful ouster occurs when one cotenant,
wrongfully excludes another from possession of
the whole, or any part of the whole
3. Upon death of a cotenant, her interest
descends to her heirs [no right to survivorship]
4. Cotenants must not commit waste
Joint tenancy
Definition: A joint tenancy is a concurrent
estate in which each tenant owns an undivided
interest in the whole estate.

Rule: Each cotenant owns an undivided interest

in the estate with the right of survivorship.
Upon the death of one of the joint tenants, the
decedents share passes automatically to the
surviving joint tenant
Each joint tenants interest is alienable only.
How is a joint tenancy
created?
Rule: 4 requirements
1. Unity of time (interest must vest at the same
time)
2. Unity of title (interest must be done by the
same instrument)
3. Unity of interests (interest must be identical)
4. Unity of Possession (interest must allow for all
to equally enjoy the whole)
Severing of a Joint Tenancy
Can be severed by either :
1. Sale
2. Partition
3. Mortgage
Severance of Joint Tenancy
SALE
Rule: A joint tenant can sell or transfer her
interest during his life time with or without
the cotenants knowledge or consent.
However, the sale severs the joint tenancy
as to the sellers interest, and the buyer
takes the interest as a tenant in common.
Severance of Joint Tenancy
Partition

Rule: A joint tenancy may be partitioned by:

1) Voluntary agreement, OR
2) Court order
a. The court can divide the property
between the joint tenants OR
b. Force the sale of the property and divide
the proceeds among tenants
Severance of a joint tenancy
Mortgage
Majority Rule: (Lien Theory) = a joint
tenants execution of a mortgage on his
interest in the joint tenancy does not sever
the joint tenancy

Minority Rule: (Title Theory) = a joint

tenants execution of a mortgage on his
share will sever the joint tenancy, but as to
the encumbered share only.
 Tenancy by the Entirety
Definition: A tenancy by the entirety
Is a joint tenancy between husband
And wife that automatically arises
When property is conveyed to both of them

Rule: Each spouse has the right of survivorship

In the property, which cannot be defeated
Through one spouses unilateral conveyance
Of her share to a third party. Upon the death of
One spouse, the decedents share passes
Automatically to the surviving spouse.

Creditors CANNOT attach interests held in tenancy by

The entirety of only one spouse
FUTURE INTERESTS
In grantor:
1. Possibility of reverter
2. Possibility of reentry
3. Reversion
In Grantee/Third party
4. Remainders
absolutely vested remainders
Vested remainder subject to open
Vested remainder subject to divestment
Contingent remainders
2. Executory Interests
shifting executory interests
Springing executory interests
Possibility of Reverter
The possibility of reverter is a future
interest that arises in the grantor

Rule: if a condition stated in the

conveyance of a fee simple determinable is
breached, the possibility of reverter
becomes a possessory interest of the
estate
 Right of Reentry

Definition: The right of reentry is a future interest

held by the grantor that provides her the right to
terminate a fee simple subject to a condition
subsequent.

Rule: When conveying a fee simple subject to

condition subsequent, a grantor must expressly
reserve the right to terminate and reenter the
land upon occurrence of specified event or
violation therein.
Reversion
Definition: a reversion is the estate retained by
a grantor who has conveyed a lesser estate
than she owns

Rule: a reversion is automatically created upon

the grantors conveyance of a lesser estate
than she owns

Life estates, invalid attempts to convey a

remainder to the grantors heirs
Remainder
A remainder is a future interest in a third person that can
become a present possessory interest only after the
natural expiration of the preceding estate

Rule: A valid remainder must be created in the same

instrument as the prior estate that it follows AND
Must become part a present possessory interest
immediately upon termination of the prior estate
2 Classifications of
Remainders
Vested Remainders
- Those who are already born and
identified by name
Contingent remainders
- those who are not yet born
Important Doctrines in regard to
future interests
1. The Rule of destructibility of
2. The rule in Shelleys Case
3. contingent remainders
4. The Doctrine of Worthier Title
5. The Rule Against Restraints on Alienation
6. The Rule against perpetuities
Destructibility of Contingent
Remainders
Common Law: a contingent remainder is
destroyed if it fails to vest before or at the
time the preceding estate terminated.
When this happens the grantors heirs take
a fee simple through reversion

Modern Law: this doctrine is abolished.

The Rule In Shelleys Case
The rule in Shelleys case states that if one
document creates both a freehold estate in
a person and a remainder in that persons
heirs, the grantee takes both the freehold
estate and the remainder

The rule in Shelleys case has been

abolished in most states
Doctrine of Worthier Title
Rule: under the doctrine of worthier title,
an attempted remainder in the Grantors
heirs is invalid and becomes a reversion in
the grantor

O conveys to A and his heirs AND THEN the

heirs convey to Z = cant do it
Restraints on Alienation
Disabling restraint = seeks to make any
attempted transfer of an estate void
Forfeiture Restraint = provides that the
grantor may terminate the estate if transfer
is attempted
Promissory Restraint = is the grantees
promise not to transfer the estate
Rules Against Restraints on
Alienation
Rule: absolute restraints on fee simple estates are void .

Exceptions:
1. Forfeiture and promissory restraints of life estates
2. Forfeiture restraints on transferability of future
interests
3. Rights of first refusal
4. Restrictions on assignments and subleasing
 Rules Against Perpetuities
No interest in property is valid unless it must
vest, if at all, no later than 21 years after some
life in being at the creation of the interest.

Applies to:
1. Contingent remainders
2. Executory interests
3. Class Gifts
4. Rights of first refusal
 Rights and Responsibilities of present and future
interest holders

The law of waste

1. Affirmative waste
2. Permissive waste
3. Ameliorative Waste
4. The law of fixtures
Law of Waste
When more than one person holds an
interest in land, the holder of the present
interest is entitled to the ordinary uses and
profits of the land, but cannot do anything
that injures the interests of the future
interest holder.
 3 types of waste
Affirmative waste (voluntary) = harm or
decrease in the value of the estate resulting
from the present interest holders intentional
conduct
Permissive waste = harm to the property
caused by the present interest holders failure
to exercise reasonable care to protect the
estate
Ameliorative waste = a physical change that
economically benefits the land but is
UNAUTHORIZED by the future interest holder
The Law of Fixtures
Fixtures pass with the ownership of land
and the removal of fixtures constitutes
voluntary waste

If the present interest holder has installed

something himself and removes this, it is
not waste
 Possessory Interest: Leaseholds
Non Free Hold Estates
Definition: A leasehold , also known as a
non freehold estate, is an interest in land
that permits the interest holder to hold or
use property for a period of time

There are four types of leaseholds

1. Tenancy for years
2. Periodic Tenancy
3. Tenancy at will
4. Tenancy at sufferance
Tenancy For Years
Definition: A tenancy for years is a tenancy
that lasts for a fixed period of time. [ a set
start and end date]
It is created by an explicit agreement
between the parties
It will end without notice on the expressed
end date unless the parties agree to extend
the date.
The statute of frauds applies to this if it is
longer than a year.
Periodic Tenancy
Definition: a periodic tenancy is a lease
that continues for intervals with no fixe
termination date
Rule: A periodic tenancy may be created
by:
a. Express agreement ( month to
month/year to year etc)
b. Implied agreement (setting payment for
rent at fixed
intervals OR
c. Operation of Law: (accepting payment
from a holdover)
Tenancy At Will
Definition: a tenancy at will is a lease that
can be terminated at the whim of either
party
No notice is required
Any party can terminate this at will
Tenancy at Sufferance
A tenancy at sufferance is created with a
tenant wrongfully retains possession of
property beyond the expiration of the
lease.

Rule: When a tenant retains possession

beyond the termination of a leasehold
estate, the tenant is deemed to hold a
tenancy at sufferance
Tenants Duties
Duty to pay rent
Duty not to commit Waste
Duty to Repair
Duty to Inform
Land lords remedies
A landlords remedies if a tenant breaches the duty to pay
rent depend upon whether the tenant remains in possession
of or abandons the property
1. Tenant remains in possession of property = landlord may:
a. file for a writ of ejectment (tenant becomes a tenant at
sufferance until he vacates)
b. Landlord can sue the tenant for back rent owed
2. If the tenant abandons the property = the landlord can:
a. accept the tenants abandonment as an implicit offer of
surrender
b. hold the tenant responsible for unpaid rent
c. lease the property out and hold the tenant liable for the
difference between the rent owed and the rent received
from the new tenant
Duty to repair
Under common law: tenant had the duty to
make repairs automatically in leaseholds
unless specified otherwise

Under modern law- the burden shifts to the

landlord under the implied warranty of
habitability
Landlords duties and tenants
rights
Landlord has a duty to uphold the implied warranty of
habitability
Landlord has a duty to uphold the Implied covenant of
quiet enjoyment
Duty to deliver possession

Tenants remedies for landlords breach

* Move out and terminate the lease
* Make the reasonable repairs and deduct cost from rent
* Reduce or withhold rent payments until the court
determines the fair rental value of the property OR
* Continue to pay rent and sue the landlord for damages
Implied Covenant of Quiet
Enjoyment
Rule: Every lease contains an implied
covenant of quiet enjoyment in which a
landlord promises not to interfere with a
tenants possession of the property
The right can be violated in two main ways:

1) By claims of paramount title OR

2) By acts of landlord or persons claiming

under him which interfere with the
tenants possession or use of the
premises
Constructive Eviction
Under the law, if the tenant s claim is
merely that his use or enjoyment of the
property has been substantially impaired,
the eviction is constructive
The tenant is responsible for paying rent
unless he abandons the property
Implied Warranty of
Habitability
Under the law, all courts agree that the
existence of a building code violation is at
least evidence of uninhabitability; however
most courts require that to prove
uninhabitability, the tenant must show that
the conditions not only violate the building
code, but are also a substantial threat to
Ts health or safety.
 Tenant Remedies for breach of
Implied Warranty of Habitability
Tenant Can:
Terminate the lease
Withhold paying rent
Use the rent money to repair the problems
Easements
Under the law, an easement is a privilege to use the land of another and must be in
writing.
AFFIRMATIVE EASEMENT
An affirmative easement is one entitling its holder to do a physical act on another s
land

NEGATIVE EASEMENT
A negative easement is own which establishes its holder to prevent the owner of land
from making certain uses of that land (these are very rare)

APPURTENANT
An easement appurtenant is one which benefits the holder in the use of a certain piece
of land and must be tied to that specific piece of land. (dominant tenement)

EASEMENT IN GROSS
An easement in gross is one whose benefit is not tied to any particular parcel

PROFIT A PRENDRE
A profit is the right to go onto the land of another to remove the soil or a product of it
Creation of Easements
Under the law an easement may be created in 4 ways: (1) by express grant; (2) by
implication; (3) by strict necessity; and (4) by prescription

EXPRESS CREATION
If a easement is created by a deed or will, it is expressed
IMPLICATION CREATION
An easement by implication has three requirements: (1) the land must be divided up or
severed; (2) the use for which the implied easement is claimed must have existed prior to
the severance and (3) the easement must be at least reasonably necessary to the
enjoyment of the dominant tenant. The implied easement will only exist where the owner
of a parcel sells part and retains part, or sells pieces simultaneously to more than one
grantee.

EASEMENT BY NECESSITY
The courts will find an easement by necessity if two parcels are so situated that an
easement over one is strictly necessary to the enjoyment of the other.

EASEMENTS BY PRESCRIPTION
An easement by prescription is one that is gained under principles of adverse possession. If
a person uses anothers land for more than the statute of limitations period governing
ejectment actions he gains an easement by prescription.
Covenant Running With The
Land
COVENANTS RUNNING WITH THE LAND
Under the law, a covenant running with the
land is simply a contract between the two
parties which, because it meets certain
technical requirements has the additional
quality that is binding against one who
later buys the promisor land and or
enforceable by one whom later buys the
promisor land.
Equitable Servitude
EQUITABLE SERVITUDE
When the court gives equitable relief and
applies it against an assignee of the
original promisor, the promise is referred to
as an equitable servitude.
The Taking Clause
THE TAKING CLAUSE
Under the law of eminent domain, state and federal governments may take
private property for public use. However, the 5th amendment to the U.S
Constitution provides that private property [shall not] be taken for public use
without just compensation. The taking clause is made binding to all of the
states through the 14th amendment. This must be a taking not a regulating
in order to be violated.
Elements:
Must be substantial advancement of legitimate state interests
Must be a fairly tight fit between the state interest being promoted and the
regulation chosen
Must be more than just a mere rational relation between means and end
(Tight means end fit)
If the government (state or federal) makes or authorizes a permanent
physical occupation of the property, this will automatically be found to
constitute a taking.
*Diminution in value - the more drastic the reduction in value of the
owners property, the more likely a taking is to be found.
Damages for Temporary
Taking
DAMAGES FOR TEMPORARY TAKING
Inverse condemnation: if a land use
regulation is so broad that it constitutes a
taking, the owner may bring an inverse
condemnation suit
ZONING
ZONING
Generally, zoning is done on the local, municipal level
The municipality power comes from the state police
power or power to act in the general welfare
Use Zoning: most common form of zoning it is
divided into districts where each district can only be
used for a certain purpose (residential, business, etc)
Density controls: govern the density of population
or construction; a towns minimum lot size per single
family, minimum setbacks requirements, minimum
square footage for residence and height limits.
LIMITS ON ZONING
LIMITS ON ZONING
Taking Clause
Procedural due process 14th amendment and 5th
amendment land owner is entitled to an administrative
hearing
Substantive due process if the zoning law fails to
bear a rational relation to a permissible state objective, it
may violate the substantive aspect of the Due Process
Clause
Equal protection: a zoning law that is adopted for the
purpose of excluding racial minorities will trigger a strict
judicial scrutiny, and will probably be found to be a
violation of the equal protection clause of the 14 th
amendment
Administrative Zoning
ADMINISTRATIVE ZONING
Bodies involved: Town council - the zoning code
is enacted by the municipal legislature
Board of zoning appeals a board of adjustment
or a board of zoning appeals usually exists towards
variances and to hear appeals from the building
departments enforcement of the zoning laws.
Planning or zoning commission - the town
council generally appoints a planning commission or
zoning commission. The commission advises the
town council on (but does not independently
determine ) the contents of the zoning code
VARIANCES
VARIANCES
Virtually all zoning ordinances have a provision
for granting variances (relief in a particular
case from the enforcement of an ordinance)
Requirements for variances: (1) denial
would result in unnecessary hardship; (2) the
need for the variance is caused by a problem
unique to the owners lot; and (3) the variance
would not be inconsistent with the overall
purpose of the ordinance, or inconsistent with
the general welfare of the people
Special Uses, Conditional Zoning
and Non Conforming Uses
SPECIAL USES permits are usually granted for churches, private
schools, hospitals (usually done in regards to a hardship of some kind

CONDITIONAL ZONING - many ordinances provide for conditional

zoning - under this device the rezoning of a particular parcel is made
subject to the developers promise to comply with certain conditions,
which will protect neighbors.

NON CONFORMING USES: When a zoning ordinance is enacted or

made more stringent, the pre existing uses that are now banned by the
ordinance are called non conforming uses Virtually all ordinances either
(1) grant a non conforming user in a substantial period within which he
may continue his use; or (2) let him continue that use indefinitely.

Constitutional law issues : it would likely be a violation of an owners

due process or other constitutional rights for him not to be given at least
a substantial period within which to phase out the non conforming issues
Exclusionary Zoning
used to exclude certain types of persons
and uses , particularly racial and ethnic
minorities and low income persons
Can be fought with the Equal Protection
Law and or
Federal Statutory regulations and or
State Case Law
Land Sale Contracts, Deeds
Mortgages
Must satisfy the statute of frauds
Part performance exception to the SOF
for the land sale contracts, under the
doctrine of part performance, a party either
the buyer or the seller, who has taken
action in reliance on the contract may be
able to gain at lease limited enforcement of
it.
Law Students Remember to review
tort law landowners for all of the
details
Mortgages and Installment
Contracts
A mortgage is a financing arrangement in
which the person buying the property (or
one who already owns the property)
receives a loan, and the property is
pledged as a security to guarantee
repayment of the loan.
A mortgage has two documents that go
with it : (1) the NOTE or BOND and (2) the
mortgage itself.
INSTALLMENT CONTRACTS: where a buyer
makes a down payment on a piece of
property and then makes monthly
installment payments on the property
DEEDS
The deed is the document which acts to pass title from the grantor to the
grantee
Merger: Under the doctrine of merger, most obligations imposed by the
contract of sale are discharged unless they are repeated in the deed.
Quitclaim deed: the grantor makes no covenant that his title is good ( he
merely passes on to the grantee whatever title he has
Warranty deed: the grantor makes one or more promises about the state of his
title
Grantor must sign the deed, the grantee need not sign the deed
Deed must be witnessed by one or more persons or Notarized
Delivery of deed is required in order for the deed to be valid
Deed must describe the property either by (1) Metes and bounds
(boundary lines where the property starts and ends) ; (2) Government survey -
land is divided in 6 mile square tracts called townships; each town ship is
divided into 36 one mile square tracts called sections, each section contains
about 640 acres, each of which can be directly referred to; OR (3) Plat which
relies on the recording of a map or plat of property by a developer in which the
plat shows the location of individual lots
Once the delivery occurs the title passes immediately to the grantee.
Water Rights
Drainage: courts are split as to the rights of an owner to drain
surface water from his property onto the property of another. In
general courts are moving to a rule that an owner may do this
only If his conduct is reasonable under all circumstances

Streams and Lakes: States are sharply split as to when and

how the landowner may make use water front lakes and
streams that abut his property usually each riparian party can
use what they need to gain beneficial use of the water (under
common law).

Ground Water in most American states a land owner may

make only reasonable use of ground water drawn from under
his property. The land owner cannot divert this water to other
properties which he may own.
AIR RIGHTS
DIRECT OVER FLIGHTS: when airports permit flights to occur
directly over an owners property and within immediate reaches
of property owners land, the property owner can sue the airport
for trespass or Nuisance if the flight is adjacent to landowners
property.
Tall buildings: A land owner has the right to build a building as
tall as he wishes as long as it is in accordance with the zoning
requirements for that location.
RIGHT TO SUNLIGHT a landowner has no right to sunlight,
for example an owner almost never acquires and easement of
light and air by implication or even by necessity. So if A and B
are adjoining owners, B can without liability build a building in
such a way that blocks As sunlight. (BUT if A uses that sunlight
for solar energy, A can possibly claim Nuisance against B for
blocking energy sources needed to sustain the power of As
building.
REVIEW OF BASIC TERMS
FEE SIMPLE ABSOLUTE
Under the law, a fee simple absolute is the longest and most unrestricted estate. A fee simple
Absolute is inheritable under intestacy statutes.

FEE SIMPLE DEFEASIBLE

Under the law, a fee simple defeasible is the type of fee simple that will terminate upon the
happening of a stated event or the failure of the stated event. There are three types of fee
simple defeasibles: (1) the fee simple determinable; (2) the fee simple subject to condition
subsequent and (3) the fee simple subject to an executory interest.

FEE SIMPLE DETERMINABLE

Under the law, a fee simple determinable is the type of fee simple that may last indefinitely, but
will terminate upon the happening of a specified event or could terminate upon the failure of a
specified event. Upon the occurrence of the event or lack thereof, the property will automatically
revert back to the grantor (possibility of reverter) or to his successors (remainders).

FEE SIMPLE SUBJECT TO CONDITION SUBSEQUENT

Under the law, a fee simple subject to condition subsequent is the type of fee simple that may
last indefinitely, but will terminate upon the happening of a specified event or could terminate
upon the failure of a specified event. Upon the happening or failure of occurrence of the stated
event the land will not automatically revert back to the grantor. Rather the grantor holds the
right of re-entry and must take an affirmative action to regain the property.
REVIEW OF TERMS 2
FEE SIMPLE SUBJECT TO AN EXECUTORY LIMITATION
Under the law, a fee simple subject to an executory limitation
provides for the estate to pass to a third person (one other than
the grantor) upon the happening of a stated event.

THE FEE TAIL

Under common law, the fee tail allows the owner of land to
ensure that the property remains within his family. Modernly, a
fee tail is simply converted by statute to a fee simple absolute.

THE LIFE ESTATE

Under the law, a life estate is an interest which lasts for the
lifetime of a person and is measured by the life of the grantor. A
life estate Per Autrie vie is a life estate measured by the life of
one other than the grantor
REVIEW OF TERMS 3
THE RULE IN SHELLEYS CASE
Under the law, The Rule In Shelleys Case provides: if a will or conveyance
creates a free hold in A, purports to create a remainder in As heirs, and
the estates are both legal or both equitable, the remainder becomes a
remainder in A. A usually ends up getting fee simple.
DOCTRINE OF WORTHIER TITLE
Under the law, one cannot, either by conveyance or will, give a remainder
to ones own heirs.

THE STATUTE OF USES AND EXECUTORY INTERESTS

Under the law, the statute of uses provides that any equitable estate is
converted into the corresponding legal estate. Modernly, the statute of
uses makes possible modern Shifting executory interests.

THE RULE AGAINST PERPETUITIES

Under the law, No interest is good unless it must vest, if at all, not later
than 21 years after some life in being at the creation of the interest
REVIEW TERMS 4
EQUITABLE CONVERSION
Under the law, where there is a specifically enforceable contract for the sale of land, the buyer
holds equitable title to the land and the seller holds legal title in trust for the buyer. A majority of
states place the risk of loss for damage or destruction to the property on the buyer. The minority,
including California, places the risk on the seller. If however the land sale contract contains a
provision that states a risk of loss, the contract is controlling.

JOINT TENANCY
Under the law, a joint tenancy is where two or more people own a single, unified interest in real or
personal property. Additionally, each joint tenant has the right of survivorship, each joint tenant is
entitled to occupy the entire premises and each joint tenant has the right to an equal share of the
property.

TENANCY IN COMMON
Under the law, a tenancy in common is where two or more people have a separate and undivided
interest in real or personal property. Additionally, there is no right of survivorship between tenants
in common and each tenant in common has unequal shares of the property interest unless there is
a rebuttable presumption of equality.

TENANCY BY ENTIRETY
Under common law, any conveyance to two or more persons who were husband and wife resulted
automatically in a tenancy by the entirety. Additionally, the tenancy by entirety is not subject to
severance and is only terminated upon divorce.
REVIEW TERMS 5
RELATIONS BY CO-TENANTS
Regardless of the form of the co-tenancy,
each co tenant has the right to occupy the
entire premise unless there is an
agreement stating otherwise. Additionally,
if the property is solely occupied by one of
the co-tenants, he normally has no duty to
account for the value of his exclusive
possession unless the occupying tenant has
ousted the other tenant or there is
depletion in the land.
REVIEW OF TERMS 6
THERE ARE FOUR TYPES OF LANDLORD
TENANT RELATIONSHIPS
(1) THE TENANCY FOR YEARS; (2) THE
PERIODIC TENANCY; (3) THE TENANCY AT
WILL; AND (4) THE TENANCY AT
SUFFERANCE.
UNDER COMMON LAW ANY CONTRACT FOR
LONGER THAN 3 YEARS NEEDS TO BE IN
WRITING
MODERNLY, ANY CONTRACT FOR ONE YEAR
OR LONGER MUST BE IN WRITING TO MEET
THE STATUTE OF FRAUD REQUIREMENTS
REVIEW OF TERMS 7
THE TENANCY FOR YEARS
Under the law, most leases are considered tenancy for years which is an estate which
is for a fixed period of time. There is a fixed start date and a fixed end date upon
which the estate will terminate without warning.

THE PERIODIC TENANCY

Under the law, the periodic tenancy is one which continues from one period to the
next automatically, unless either party terminates it at the end of a period by notice.
Under common law the terminating party had to give a 6 month notice for a year to
year contract. Modernly, the requirement is 30 days.

THE TENANCY AT WILL

Under the law, a tenancy at will is a tenancy which has no stated duration and which
may be terminated by either part at any time without giving any notice

THE TENANCY AT SUFFERANCE

Under the law, there is only one situation where the tenancy at sufferance exists and
this is where a tenant holds over at the end of the lease giving the landlord the option
to: (1) evict the tenant; or (2) hold the tenant to another term creating a periodic
tenancy and notice to terminate will have to be given.
REVIEW OF TERMS 8
TENANTS RIGHT OF POSSESSION
The American view is that the landlord only
has a duty to deliver legal possession and
not actual possession
The English view is that the landlord DOES
have the duty to deliver actual possession.
T has the right to terminate the lease and
recover damages for the breach if the prior
tenant holds over and the landlord does not
oust him. OR T can continue to lease and
get damages for the period until the prior
tenant is removed.
 END OF PROPERTY LAW
THIS IS A BRIEF OF PROPERTY LAW
TERMS AND DEFINITIONS AS WELL AS
SOME OF THE RULES
IT IS GENERALLY BASED ON COMMON LAW
AS IT IS INTENDED FOR THOSE WHO WANT
TO LEARN THE LAW OF THE LAND
FOR MORE IN DEPTH LAWS, PLEASE SEEK
OUT YOUR STATE PROPERTY LAW STATUTES
WHICH ARE BASED ON WHAT YOU HAVE
JUST READ
SOURCE: Emanuel, S.L (2004) Property
Law Aspen Publishers, NY