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DEFEASIBLE FEES

A fee simple estate of potentially infinite duration that can be

terminated upon the occurrence of some specified event
• I.e., estate with a remainder vested in some person, who may
lose the vested interest upon the occurrence of some event
• Requires clear words of intent for the remainder to vest
» Words of desire, hope, or aspiration are insufficient
Three types of defeasible fees:
1) Fee simple determinable - property automatically
reverts back to grantor upon the happening of a given event
» Accompanying future interest =possibility of reverter
(retained by grantor)
2) Fee simple subject to condition subsequent - grantor
retains power to terminate grantee's estate (grantor must take
action to terminate; does not occur automatically)
» Accompanying future interest =right of reentry (retained
by grantor)
3) Fee simple subject to an executory interest - property
automatically transfers to a third party (i.e. , someone other than
grantor) upon the happening of a given event
» Accompanying future interest =shifting executory interest
(retained by third party)

See cards 2-4

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FEE SIMPLE DETERMINABLE

Property automatically terminates and reverts back to the grantor

upon the happening of a given event or condition

Characteristics:
• Automatic forfeiture - upon occurrence of the given event or
condition , the grantee automatically forfeits the estate
• Potentially infinite - duration can be infinite so long as the event
or condition does not occur
• Transferability - alienable, devisable, and descendible, subject
to the occurrence of the given event
» Absolute restraints on alienation are void

Creation - requires clear durationallanguage

• Phrases such as "for so long as," "while," "during," "until," etc.
» E.g., "to A for so long as he practices law"
• If A stops practicing law, property automatically
reverts back to grantor
• Words of desire, hope, or aspiration are insufficient

Accompanying future interest = possibility of reverter

• Grantor retains a possibility of reverter

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FEE SIMPLE SUBJECT TO CONDITION SUBSEQUENT

Grantor retains the power to terminate grantee's estate upon the

happening of some given event or condition

Characteristics:
• Forfeiture not automatic - if the event or condition occurs,
grantee still retains title until grantor takes some action to
exercise his right of reentry
» Distinguish from fee simple determinable
• Potentially infinite - duration can be infinite so long as the event
or condition does not occur
• Transferability - alienable, devisable, and descendible, subject
to the occurrence of the given event or condition
» Absolute restraints on alienation are void

Creation - clear durationallanguage must carve out a right of

reentry for grantor
• E.g., "to A, but if he wins the lottery, grantor reserves the right to
reenter and retake"
• Words of desire, hope, or aspiration are insufficient

Accompanying future interest = right of reentry

• Grantor retains right of reentry

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FEE SIMPLE SUBJECT TO AN EXECUTORY INTEREST

Property automatically transfers to a third party upon the happening

of a given event or condition

Characteristics:
• Automatic forfeiture - upon occurrence of the event or
condition , estate automatically transfers to a third person
» Similar to a fee simple determinable, but ownership
automatically transfers to a third person, not grantor
• Potentiall y infinite - duration can be infinite so long as the event
or condition does not occur
• Transferability - alienable, devisable, and descendible, subject
to the occurrence of the event or condition
» Absolute restraints on alienation are void

Creation - clear durationallanguage is required

• E.g., "To A, but if A is ever arrested , then to B"
• Words of desire, hope, or aspiration are insufficient

Accompanying future interest = shifting executory interest

• The third party holds the shifting executory interest

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LIFE ESTATE & DOCTRINE OF WASTE

An interest that lasts only for the life of the interest holder
• I.e., does not terminate at a fixed or computable time period
• Typically measured by life of grantee
» E.g., 0 grants "To A for life"; A, the life tenant, has estate in
land until A dies; then reverts to 0
• Life estate pur autre vie - life estate measured by the life of
another person (i.e., one other than the life tenant)
» E.g., 0 grants "To A for the life of B"

Doctrine of Waste - concerns rights/duties of life tenant (LT)

• LT cannot injure interests of remainder/reversion-holder
• Affirmative (voluntary) waste - LT cannot consume or exploit
natural resources, except:
a) Where necessary for repairs or maintenance of land
b) When grant expressly gives the right to exploit
c) If land was used for exploitation prior to grant
• Open mines doctrine - if extraction of materials was
done on land before life estate began, LT may only
extract from mines already open
• Permissive waste - LT has duty to repair/maintain property up
to extent of income/profits derived from land or rental value of
land; failure to do so is permissive waste
• Ameliorative waste - acts that economically benefit land's
value; usually permitted under modern authorities

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FUTURE INTERESTS

A future interest is a legal right to property that will begin at some

time in the future (i.e., a future possessory interest). There are two
main categories of future interests:

1) Future interests in the grantor

a) Possibility of reverter
• Accompanies a fee simple determinable (see card 2)
b) Right of reentry/power of termination
• Accompanies a fee simple subject to a condition
subsequent (see card 3)
c) Reversion
• Default future interest for grants of an estate smaller
than a fee simple, such as life estates
• E.g., "to A for life" or "to A for 99 years"

2) Future interests in grantees or third persons

a) Vested remainder - see cards 7-8
i. Indefeasibly vested remainder
ii. Vested remainder subject to total divestment
iii. Vested remainder subject to open
b) Contingent remainder - see card 9
c) Executory interest - see card 77

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REMAINDERS

A future interest in a third person that arises immediately upon the

termination of the preceding estate

Characteristics:
• Expressly created in the same conveyance in which the
preceding estate is created
• Cannot cut off or divest an interest held by a prior transferee
• Alienable, devisable, and descendible

Categories of remainders:
1) Vested remainders - three types:
a) Indefeasibly vested remainders
b) Vested remainder subject to total divestment!
executory limitation
c) Vested remainder subject to open
2) Contingent remainders - arise if:
a) There is a condition precedent to the future interest
becoming possessory
b) The future interest vests in an unascertained taker
c) Both a) and b)

See card 8 - Vested Remainders

See card 9 - Contingent Remainders

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VESTED REMAINDERS

A remainder that automatically becomes possessory upon the

natural expiration of the preceding estate
• Limitations - vested remainders cannot:
a) Be subject to any condition precedent
b) Vest in an unknown or unascertained person

Three types of vested remainders:

1) Indefeasibly vested remainder - becomes possessory
immediately upon termination of the prior estate
2) Vested remainder subject to total divestment - subject to
some condition subsequent, such that the remainderman could
be divested after taking possession
» E.g., "to A for life, remainder to B; but if B weds, to ("
3) Vested remainder subject to open (class gift) - remai nder
vested in a described class of takers, at least one of whom is
capable of taking possession (i.e., by virtue of being alive)
» Not subject to any condition precedent
» Open vs. closed class - class remains open to allow
for future class members (anyone who satisfies class
description, e.g., "children of A") and closes when
additional class members are impossible
» Rule of Convenience - class closes whenever any class
member can call for distribution of her share; does not
apply if it conflicts with the grantor's expressed intent

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CONTINGENT REMAINDERS

A remainder will be contingent if it is either a) subject to a condition

precedent, or b) created in favor of an unascertained or unborn
person

Subject to condition precedent - remainder's taking is subject to a

condition precedent, i.e., contingent as to an event
• Once grantee satisfies the contingency, the interest
automatically becomes an indefeasibly vested remainder
• E.g., "to A for life, then to B and his heirs when B gets married"
» If B is unmarried at the time of the conveyance, A has a
li fe estate, B has a contingent remainder (b/ c marriage is a
condition precedent), and grantor has a reversion in case B
is not married when A dies

Subject to unborn or unascertained persons - remainder is

contingent if created in favor of unborn or unascertained persons
• The remainder is contingent on the grantee becoming born or
ascertained
• E.g., "to A for life, then to B's heirs"
» If B is alive upon conveyan ce, remainder is contingent b/ c
heirs of B cannot be ascertained until B dies

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RULE OF DESTRUCTIBILITY, MERGER, &THE DOCTRINE OF

WORTHIER TITLE
Rule of destructibility - at common law, a contingent remainder is
destroyed if it remains contingent (i.e., the condition is not satisfied)
when the preceding estate ends
• E.g., 0 grants lito A for life, then to B once he goes to law schooL"
A dies and B has not gone to law school
» At common law, Bgets nothing upon A's death
• Modern rule - gives a reversion to grantor or grantor's heirs
until grantee satisfies the condition

Merger (Shelley's Rule) - 0 grants lito A for life, then to A's heirs"
and A is alive
• At common law, the remainder merges and A has a fee simple
absolute
• Modern rule - A has a life estate and A's heirs have contingent
remainders
» 0 has a reversion b/c A could die without heirs

Doctrine of worthier title - 0 conveys lito A for life, then to O's

hei rs"
• The contingent remainder in O's heirs is void; A instead has a life
estate and 0 has a reversion

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EXECUTORY INTERESTS

A future interest in a third party that takes effect by cutting

short some interest - two types: shifting and springing
• Includes any future interest that is not a remainder
• Look for phrases like "but if," "then to," "for so long as," etc.
• Executory interest holders lack standing to sue for waste

Shifting executory interest - always follows a defeasible fee

• Cuts short someone other than the grantor
• E.g., "to A, so long as the property is used for storage. But if used
for any other purpose, to B"
» A has a fee simple subject to an executory interest
» B has a shifting executory interest - if A stops using the
property for storage, A's interest is cut short (not the
grantor's)

Springing executory interest - cuts short the interest of the

grantor or his heirs
• E.g., "to A, if and when he gets married"
» A has an executory interest
» Grantor has a fee simple subject to an executory interest; if
A gets married, possession springs from grantor to A

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RULE AGAINST PERPETUITIES (RAP)

No property interest is valid unless it must vest, if at all, no later

than 21 years after the death of a life in being at the time the interest
was created
o i.e., a future interest is void if there is any possibility, no matter
how remote, that it will vest more than 21 years after the death of
the measuring life
» Measuring life =a life "in being" at the time the interest
was created
o RAP applies to:
a) Contingent remainders
b) Executory interests
c) Vested remainders subject to open
d) Options and rights of first refusal
e) Powers of appointment

Analyzing a conveyance subject to the RAP:

1) Determine the interest being granted
2) Apply RAP to any interest for which RAP applies
3) If conveyance violates RAP, strike only the violating portion
» What remains =the new conveyance

Note - many states have reformed the common law RAP, providing
for an alternative vesting period greater than 21 years
o Unless instructed otherwise, apply the common law RAP

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SPECIAL CONSIDERATIONS REGARDING THE RULE AGAINST

PERPETUITIES

Rights of first refusal &RAP - contingent interests in property

(i.e., options and rights of first refusal) violate RAP if they could pos-
sibly be exercised outside the time period allowed by RAP

Class gifts &RAP - for class gifts to satisfy RAP, class must be
closed with all conditions precedent satisfied for every member
o Rule of Convenience for class gifts may save a class conveyance
that would otherwise violate RAP (see card 8)
o Examples of RAP violations:
1) Age contingency beyond 21 - a conveyance to an open
class is contingent on members reaching an age over 21
» Void under RAP because it cannot vest within 21 years of
a life in being at the time of creation
2) Fertile octogenarian - presumption that any woman is
capable of giving birth, regardless of her age or condition
» E.g. , grantor conveys "to A for life, then to A's children
who reach age 30." A is 80, her son is 40. Conveyance
violates RAP, as A's son could die, she could have a
daughter at 81, then die when she's 82. The remaining
daughter's interest will not vest for another 28 years.

Charity-to-charity exception - RAP does not apply to conveyances

from one charity to another

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TENANCY IN COMMON

An estate with multiple tenants in which each co-tenant owns a

distinct, undivided interest and each has a right to possession of the
whole estate

Characteristics:
• Freely transferable - each interest is freely descendible,
devisable, and alienable
• Co-tenants only share the right to possession
• No survivorship rights - a co-tenant's interest can be
transferred to heirs upon her death
• Partition - a co-tenant can force partition at any time and take
sole ownership of her share in the estate while the remaining
parties hold their interests as tenants in common
• Modern law favors tenancy in common; it is the default
co ncu rrent estate

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JOINT TENANCY (JT)

Creation - four conditions must concurrently exist when the

tenants take their interests:
1) Time - JTs must take their interests at the same time
2) Title - JTs must receive their conveyance through the same
instrument
3) Interest - JTs must take equal and identical interests
4) Possession - JTs must have equa l possessory rights
• Express intent required - grantor must expressly intend to
create a JT; otherwise, a tenancy in common is presumed
• Right of survivorship - if one JT dies, surviving JTs automatically
take equal possession of deceased JT's share
• Transferability - alienable, but not devisable or descendible

Severance & transfer of interests:

• Severance - severance by any JT creates a tenancy in common
with respect to severed interest
• Transfer of interest - a JT interest becomes a tenancy in
common upon transfer; this does not destroy the entire JT if two
or more JTs remain
• Mortgage - lien theory (majority) vs, title theory (minority)
» Lien theory Jx - JT can take a mortgage on her interest
without severing JT (b/c no title passes to mortgagee)
» Title theory Jx - JT is severed if any JT takes a mortgage on
her interest because title passes to the mortgagee

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TENANCY BY THE ENTIRETY

Marital estate, similar to JT, but between a married couple

• Created by conveyance to a married couple; requires the same
four conditions as a JT (time, title, interest, possession)
• Spouses are co-tenants; tenancy by the entirety is presumed in
any conveyance made jointly to a married couple
• Only recognized in certain common law jurisdictions

Characteristics:
• Right of survivorship - property automatically passes to
survIving spouse
• No right of partition - one spouse may not unilaterally convey
her interest; attempt to do so is invalid and will not destroy the
tenancy
• Protected from creditors - creditors of one spouse cannot reach
that spouse's interest; only creditors of the couple (i.e., joint
creditors) can reach a tenancy by the entirety

Severance - four ways a tenancy by the entirety can be severed,

which creates a tenancy in common:
1) Death of one co-tenant
2) Mutual agreement of the parties in writing
3) Issuance of a divorce decree
4) Execution by a joint creditor (e.g., foreclosure)

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CO-TENANTS' RIGHTS & DUTIES

The following rules generally apply to concurrent estate tenants:

1) Possession - each co-tenant has rights to possess the whole

2) Rent from a co-tenant in exclusive possession - a co-tenant in
exclusive possession is not liable to co-tenants for rent
3) Rent from third parties - a co-tenant leasing premises out must
account to co-tenants for their share of rental income
4) Adverse possession - tenants may not acquire title to the
exclusion of co-tenants through adverse possession
5) Carrying costs - each tenant is responsible for his fair share of
taxes, interest, etc.
6) Repairs - co-tenants may seek contribution for reasonable
repairs, but must inform co-tenants before making repairs
7) Improvements - no right to contribution for improvements;
but co-tenants are entitled to credit for an increase in value
attributable to the improvement (and also liable for any resulting
loss)
8) Waste - a co-tenant can bring an action for waste against an-
other co-tenant during the life of the tenancy
9) Partition/forced sale - JT's and tenants in common may bring
an action for partition, or seek a forced sale and apportion the
proceeds

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LEASEHOLD ESTATES

An estate in which the tenant has a present possessory property

interest and the landlord has a future interest (reversion)

Four leasehold estates:

1) Tenancy for years
» Lasts for a fi xed period of time
» Requires a definitive beginning and end date
» If duration is longer than one year, lease must be in writing
(required under So F)
» Terminates automatically at the end of the fi xed period
• No notice is required
» Also referred to as "estate for years," "term for years," or
"fixed term tenancy"
2) Periodic tenancy
» Tenancy estate that repeats until terminated
3) Tenancy at will
» Either party can terminate at any time without notice
4) Tenancy at sufferance
» Tenant has possession by virtue of wrongfully remaining
after termination of a lease (holdover tenant)

See cards 19-21 on Periodic Tenancy, Tenancy at Will, and Tenancy

at Sufferance

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PERIODIC TENANCY

A leasehold that is continuous for successive intervals (e.g., weeks

or months) until either party gives notice of termination

Creation - can be express, implied , or by operation of law

• Express agreement - conveyed to tenant for agreed interval
• Implication - a lease does not specify duration, but provides for
rent to be paid at set intervals
• Operation of law - two situations:
1) Invalid lease - if tenant takes possession despite an invalid
lease (e.g., lease violates SoF), periodic tenancy arises upon
the landlord's acceptance of payment
• Period of the tenancy is determ ined by the period the
payment covers
2) Holdover tenant - if landlord accepts rent from a holdover
tenant, a periodic tenancy arises for the period the payment
covers

Termination - when tenant gives proper notice, which requires:

1) Suf ficient time - tenant must give notice one full period in
advance; year-to -year tenancies require si x-month notice
2) Effective date - effective date of termination must be at the
end of the period of the tenancy
• Note - parties can agree to modify these requirements

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TENANCY AT WILL

A tenancy with no fixed duration, terminable by either party at

any time without notice

Creation - express agreement

• Without an express agreement, courts will treat the lease as an
implied periodic tenancy

Termination - by will or operation of law

• By will - either party can terminate the lease at any time
without notice, but a reasonable demand to vacate the premises
is usually required
• By operation of law - occurs upon:
1) Death of either party
2) Waste by the tenant
3) Assignment by the tenant
4) Transfer of title by the landlord
5) Lease by the landlord to a third party

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TENANCY AT SUFFERANCE

A default tenancy that arises when a tenant continues to possess

property after the lease expires (i.e., a holdover tenant)

Creation - tenant holds possession beyond lease expiration

• The expired lease's terms and conditions automatically carry
over to the tenancy at sufferance

Landlord options:
1) Sue to evict
2) Impose a new periodic tenancy
» Raised rent - landlord can demand higher rent for both the
holdover period and any new periodic tenancy if he gave
notice of the increase before the lease expired
» Commercial leases - if expired lease was for one year or
longer, the new periodic tenancy can be year-to-year

Exception - imposing new periodic tenancy must be reasonable

• New periodic tenancy is unreasonable if:
» Tenant only remains in possession for a few hours
» Tenant is not at fault for delay in vacating (e.g., illness)
» Seasonal leases (e.g., ski cabin, beach house)

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TENANT'S DUTIES AT COMMON LAW

Duty to repair - can be largely modified by lease terms:

• Tenant must maintain premises and make ordinary repairs
» Residential tenants' duty to repair is slightly mitigated by
the implied warranty of habitability (see card 27)
• Tenant must not commit waste - three types of waste:
1) Voluntary - overt, harmful acts (e.g., removing fixtures)
2) Permissive - neglect
3) Ameliorative - alterations increasing property value
• Destruction of premises without fault of landlord or tenant
» Common law - tenant held liable for any loss
» Modern law - tenant can terminate lease

Duty to pay rent - tenancy at sufferance arises upon breach

Duty to not use property for illegal purposes

• If tenant uses premises for an illegal purpose, landlord may
terminate lease or obtain damages and injunctive relief
• Occasional, minor illegal activities do not constitute a breach

Liability to third parties (in tort):

• Tenant is liable for injuries sustained by third parties invited by
tenant (even if landlord promised to make repairs)

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FIXTURES

Once-movable chattel that is annexed (i.e., attached) to real

property, indicating an intent to permanently improve property
• E.g., heating systems, lighting installations

Characteristics:
• Fixtures pass with ownership of the land
• Tenant installation qualifies as a fi xture if there is an express
agreement between the landlord and tenant
» If no agreement, tenant may remove the chattel that
tenant installed as long as removal does not cause
substantial harm to the property

Fixtures &voluntary waste

• If tenant removes fixtures he commits voluntary waste
» See card 22 - Tenant's Duties at Common Law

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LANDLORD'S REMEDIES FOR TENANT BREACH

If tenant breaches his leasehold duties, landlord's options depend on

whether tenant retains possession (i.e. , remains on premises)

Tenant retains possession - landlord may:

1) File for notice of eviction
2) Continue the lease and sue for rent due

Tenant abandons premises - landlord may:

1) Surrender - treat the abandonment as tenant's surrender and
accept it, releasing the tenant from the lease
2) Ignore (minority rule) - hold tenant liable for unpaid rent
3) Re-Iet (majority rule) - lease premises to new tenants and hold
the breaching tenant liable for any losses

No self-help - landlord may not engage in self-help upon

tenant's breach (e.g., forcibly removing tenant or tenant's
belongings, changing locks, etc.)

Security deposit - required at beginning of most leases to secure

landlord against damages and/or abandonment
• Landlord must return deposit to tenant once lease terminates
» Landlord may subtract damages she has suffered

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LANDLORD'S DUTIES & WARRANTIES

Landlords have the following implied duties to tenant:

1) Duty to deliver possession

» Majority - actual possession
• Landlord must deliver ph ysical possession to tenant
» Minority - legal possession (i.e., right to possess)
• New tenant is responsible for any holdovers on property
» Tenant's remedy for breach =money damages

2) Implied covenant of quiet enjoyment (see card 26)

3) Implied warranty of habitability (see card 27)

4) Tort liability (see card 28)

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IMPLIED COVENANT OF QUIET ENJOYMENT

A tenant has an implied right to quiet use and enjoyment of the

premises, without interference from the landlord
• Breach may occur by actual eviction or constructive eviction

Actual eviction - landlord wrongfully evicts or excludes tenant

from property

Constructive eviction - landlord's actions or inactions render the

property uninhabitable
• Elements:
1) Substantial interference - major and/or chronic problems
(e.g. , leaky roof)
2) Notice - tenant must inform the landlord and give him a
reasonable opportunity to repai r; landlord must fail to act
meaningfully
3) Vacate - tenant must vacate within a reasonable period
after the landlord fails to repair

Retaliatory eviction - landlord is prohibited from retaliatory evic-

tion if a tenant lawfully reports housing code violations

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IMPLIED WARRANTY OF HABITABILITY

Residential property must be fit for basic human dwelling

Characteristics:
• Not applicable to commercial leases
• Absolute duty - cannot be modified by lease terms
• Local code or case law specifies the standard for a breach
• E.g., no heat in winter, no plumbing, no water, etc.

Tenant's remedies for landlord breach:

1) Move - vacate premises and terminate the lease
2) Repair - make reasonable repairs and deduct the costs from
future rent
3) Reduce or withhold rent - tenant can reduce rent or stop
payment until a court determines the fair rental value given the
breach
» Tenant must place withheld rent in escrow
4) Remain - tenant can remain in possession and seek money
damages

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LANDLORD'S TORT LIABILITY TO TENANTS

A landlord may be liable for injuries occurring on leased property

Landlord is liable for injuries involving:

1) Common areas - duty of reasonable care
» Landlord must exercise reasonable care in maintaining and
repairing common areas (e.g., hallways, stairs)
2) Latent defects - duty to disclose
» Landlord has a duty to disclose hidden defects he should
reasonably know of
3) Assumption of repairs - negligence standard
» Landlord is liable for harm caused by negligent repairs he
chooses to undertake
4) Public use - landlord is liable for known defects if he knows the
property is for public use and tenant is unlikely to repair
» E.g., concert hall , convention center
5) Seasonal or short term lease of a furnished dwelling
» Landlord is liable for defects that cause harm to tenant
» Note - this is the broadest liability landlords have

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ASSIGNMENTS & SUBLEASES

Unless restricted by lease terms, a tenant may transfer her

leasehold interest in whole (assignment) or in part (sublease)

Assignment - entire leasehold transfers from tenant to assignee

• Assignee is in privity of estate with landlord - the two are bound
by all covenants that run with the land
• Assignor remains in privity of contract with landlord
• Assignee owes rent directly to landlord, but assignor may be
held liable for unpaid rent

Sublease - partial leasehold transfers from sublessor to sublessee

• Sublessor is in privity of estate and contract with landlord (i.e.,
relationship between tenant and landlord is unchanged)
» Sublessee pays rent to sublessor as her tenant
• Sublessee is not liable to landlord for rent and is not bound by
any covenants unless expressly assumed

Assignment/sublease provisions - construed against landlord

• Lease provisions restricting assignment or sublease are
enforceable, but generally construed against landlords
• Once landlord gives a tenant permission to assign or sublet, such
provisions are thereafter waived

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EASEMENTS

A non-possessory property interest that confers a right to use

another's land
• Servient estate =burdened land
• Dominant estate =benefited land (not always applicable)

Types of easements
• Easement appurtenant - entitles a dominant estate owner to
use a servient estate's land
» Attaches to the dominant estate and passes automatically
(even if not mentioned in a conveyance)
• Easement in gross - entitles an individual or entity (not a
dominant landowner) to use the servient estate
» Does not attach to land; there is no dominant estate
» E.g., right to place a billboard on another's lot, right to run
utility line across land, right to fish in another's pond
» Similar to a license, but irrevocable; may be transferred
• Affirmative easement - entitles its holder to make affirmative
use of the servient estate
• Negative easement - entitles its holder to restrict the servient
estate from otherwise permissible activities

Creation - easements may be created by prescription, implication,

necessity, or expressly by grant or reservation
• See cards 31-34

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EASEMENT BY PRESCRIPTION

A process of acquiring an easement; similar to acquiring title by

adverse possession

Requirements - acquirer's use of another's land must be:

1) Continuous - for the applicable statutory period
2) Open and notorious - owner knows or should know of use
3) Actual
4) Hostile - without owner's permission

Note - an easement can also be terminated by prescription if the

servient landowner interferes with the easement sufficiently to
satisfy the above requirements (see card 36)

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EASEMENT BY IMPLICATION

An easement legally implied based on prior use by a common

grantor on land subsequently divided into multiple plots

Requirements:
1) Easement exists prior to division of a single tract of land
2) Common grantor's use is continuous and apparent
3) Use is reasonably necessary for enjoyment of the dominant
tenement
4) Parties intended the use to continue after division of the land

Exceptions - easement may be implied without prior use if:

1) Subdivision plat - lots in a subdivision are sold with reference
to a map plan
2) Profit a prendre - holder of a profit a prendre has an implied
easement to pass over the land's surface as reasonably
necessary to extract materials (e.g. , wood, coal)

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EASEMENT BY NECESSITY

An easement can arise if access to or from a property is impossible

without the easement (i.e., the easement's existence becomes
necessary)

Creation - usually arises when a landowner sells a portion of her

property and the resulting division deprives one lot owner of access
to a public road or utility
• The owner of the servient estate can choose a reasonable
location for the easement

Termination - expires automatically when the necessity ends

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EXPRESS EASEMENT (EASEMENT BY GRANT OR

RESERVATION)
Easements may be expressly created by grant or reservation

Grant - an express grant of the easement

Reservation - grantor conveys title to land but reserves the right to

continue using the land for a designated purpose
• Grantor may only reserve an easement for himself
» Void if reserved for the benefit of another

Requirements - express easements must be:

1) In writing
2) Signed by the servient estate holder
3) Satisfy deed formalities (i.e. , lawfully executed and delivered)

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SCOPE OF EASEMENTS

An easement's scope is determined by the terms or conditions that

created it
• In interpreting an easement's scope, courts will consider the
reasonable intent of the original parties

Expansion
• Easement holders cannot unilaterally expand the scope of their
easement, e.g., through overuse or misuse
• Remedy for violation =injunction
» Overuse or misuse of an easem ent does not terminate the
easement
» Servient owner's remed y is an injunction

Duty to repair
• Easement holder has a duty to make repairs if he is the sole user
• If both the servient landowner and the easement holder use an
easement, the repair costs are apportioned

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TERMINATION OF EASEMENTS

Easements may be terminated in anyone of the following ways:

1) Estoppel - where servient owner reasonably relies on an ease-

ment holder's conduct or representations indicating an intent to
abandon the easement; non-use is insufficient
2) Necessity ends - easements by necessity expire when the need
that created them ends
3) Destruction of servient tenement - unless destruction results
from willful conduct of the servient owner
4) Release - easement holder can terminate the easement
by giving a deed of release to the servient tenement owner
5) Abandonment - easement is terminated if its holder physically
demonstrates an intent to permanently abandon it
» Mere words or nonuse are insufficient
6) Merger - easement terminates automatically if one person
acquires title of both the easement and the servient land
» Re-dividing the merged title will not revive easement
7) Prescription - servient owner may extinguish an easement by
interfering with it using elements of adverse possession
8) Expiration - if easement was established for a set term, or to
expire upon stated conditions, expiration of the term or occur-
rence of the stated conditions will terminate easement

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NEGATIVE EASEMENTS

Entitles the holder to prevent the servient landowner from engaging

in otherwise permissible actions on his own land

Four categories of acts may be prevented:

1) Light
2) Air
3) Support
4) Stream of water from an artificial flow

Creation - can only be created by express grant (writing signed by

grantor)

Note - restrictive covenants are utilized more frequently than nega-

tive easements to prevent a landowner from engaging in certain
activities on their land

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LICENSES & PROFITS

License - a right to use licensor's land that is revocable at the

licensor's will
• E.g., oral permission for neighbor to use licensor's pool, theater
tickets (grant a license to ticket holders), right to use a parking
lot
• Licensor may revoke the privilege at any time, unless estoppel
applies (e.g., licensor has allowed licensee to contribute
substantial money, labor, etc.)
• No SoF requirement - a license may be oral or written; they can
result from easements that are invalid under the SoF
» E.g., an oral grant of a permanent easement between
neighbors may result in a license b/c SoF not satisfied

Profit - a non possessory property interest entitling its holder to

enter a servient estate to remove resources (e.g., minerals, timber,
soil, fish)
• All rules governing easements apply to profits (i.e., creation,
transferability, and termination)
• Extinguishment - a profit may be extinguished through misuse
or overuse of resources on the servient estate

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COVENANTS

A promise to do or refrain from doing something related to land

• A contractual limitation or promise regarding land
• Note - covenants are not property interests

Real covenant - a covenant concerning real property

• Runs with the land at law - subsequent owners may be
burdened by the covenant or may enforce it
» Different requirements apply for burdens and benefits
running with the land (see cards 40 &. 47)
• Affirmative covenant - a promise to do something related to
land
• Restrictive covenant - a promise to refrain from doing
something related to land

Termination - can occur by:

a) Written release
b) Merger of benefited and burdened estates
c) Condemnation of burdened property

Covenants vs. equitable servitudes - difference is the remedy

• Covenant - money damages
• Equitable servitude - injunction
• See card 42 - Equitable Servitudes

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REQUIREMENTS FOR BURDENS OF COVENANT TO RUN WITH

LAND
A successor in interest to the burdened estate will be bound by a
covenant if the following conditions are satisfied :

1) Writing - original covenant was in writing

2) Intent - parties intended to bind successors in interest
» Look to language of the covenant; courts are liberal in
construing requisite intent
3) Touches and concerns the land
» Covenant must affect parties' legal relations as
landowners (a very low standard)
» Homeowner association fees satisfy this requirement
4) Horizontal and vertical privity - must exist bet ween interested
parties
» Horizontal privity - relationship between the
covenanting parties (e.g., grantor/ grantee, landlord/
tenant, mortgagor/ mortgagee)
» Vertical Privity - relationship between covenanting
parties and their successors in interest (e.g., contract,
devise, descent)
5) Notice - successor in interest had notice of the covenant when
she too k her interest

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REQUIREMENTS FOR BENEFITS OF COVENANT TO RUN WITH

LAND
A successor in interest to the benefiting estate may enforce the
covenant if the following conditions are met:

1) Writing - original covenant was in writing

2) Intent - original parties intended benefit to run with land
» Look to language of the covenant; courts are liberal in
construing requisite intent
3) Touches and concerns the land
» The covenant must affect parties' legal relations as
landowners (a very low standard)
4) Vertical Privity - successors in interest are in vertical
privity with the original covenanting parties (e.g., through con-
tract, devise, or descent)
» Horizontal privity is not required for majority of states

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EQUITABLE SERVITUDES

A promise enforced in equity against successors through injunctive

relief (i.e., injunction is the remedy)
• Virtually the same as a covenant, except for the remedy
• Privity is not required to bind successors

Creation - requirements:
1) Writing - written promise
2) Intent - original parties must intend to bind successors
3) Touches and concerns the land
4) Notice - successors of the burdened land had notice

Defenses to enforcement - a court will not enforce an equitable

servitude if any of the following conditions exist:
1) Pervasive changes in the neighborhood
2) Estoppel
3) Acqu iescence
4) Unclean hands
5) Laches

Reciprocal negative servitudes - may be implied from a common

scheme for development of a residential subdivision
» See card 43 - Reciprocal Negative Servitudes

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RECIPROCAL NEGATIVE SERVITUDES

Lot owners in residential subdivisions may enforce restrictions on

the use of property against other subdivision lot owners
• May be implied from a common development scheme of a
residential subdivision

Created through implication if:

1) General/common scheme - when sales began, the developer
had a general scheme for all parcels of the subdivision, including
the subject lot
» Common scheme may be evidenced through:
a) Recorded plat
b) General pattern of restrictions
c) Oral representations to early buyers
2) Notice - owner of the subject lot had notice of the covenants in
the deeds of other subdivision lots
» Notice may be one of three types:
a) Actual- literal knowledge of covenants
b) Inquiry - character of the neighborhood indicates a
common restriction
c) Record - chain of title for the owner's lot includes a
prior deed containing a covenant

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• ••

ADVERSE POSSESSION

A trespasser may acquire title to another's property without

compensation by possessing the property for a specified period, in a
manner conflicting with the true owner's rights

Requirements - trespasser's possession of the land must be:

1) Continuous for the statutory period - possession must be simi-
lar to an ordinary owner's use of the property
» Daily possession is not required if an ordinary user would
not use the property daily (e.g., winter cabin)
2) Open and notorious - trespasser's possession must be
conspicuous, such that the true owner would know of the
trespass if he inspected his property regularly
» Owner need not actually know of the trespasser's use
3) Actual and exclusive - must possess a reasonable portion of
the property to the exclusion of the owner and the public
4) Hostile - possession must be without owner's permission
» No knowledge or intent requirement (i.e., trespasser need
not intend to adversely possess)
» Leasehold - if a tenant stays in possession after a lease
has expired, he is presumed to have permission (i.e.,
tenancy at sufferance arises, as opposed to the beginning
of an adverse possession period)

See card 45 - Miscellaneous Adverse Possession Rules

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• ••

MISCELLANEOUS ADVERSE POSSESSION RULES

Statute of Limitations (SoL)

• Disability - SoL does not begin to run if the true owner was
under some disability when the adverse possession began
» Disability acquired during adverse possession does not toll
SoL
• Future interests - SoL does not run against future interest hold-
ers until the interest becomes possessory

Restrictive covenants - will not run with the land if the adverse
possessor's use of land violated the covenant; but covenant will run
if the adverse possessor's use complied with the covenant

Color of title - a claim of title to property not actually owned

• Adversely possessing part of the property under color of title is
sufficient to acquire title to the entire property

Govt.land - cannot be acquired through adverse possession

Leasing - adverse possessors can lease a portion of the land to a

third party and still possess the property

Non-marketable title - title taken by adverse possession is not

marketable, unless there has been an action to quiet title

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• ••

ADVERSE POSSESSION: TACKING & CONCURRENT OWNERS

Tacking
• Adverse possessors can tack together successive periods of
adverse possession to satisfy the statutory period, even if
successive possession was by different adverse possessors
» Must be successive - there cannot be gaps between
periods of adverse possession
• Requires privity between successive adverse holders
» Satisfied if subsequent possessor takes by descent, devise,
or by deed purporting to convey title
» I.e., tacking not permitted if one adverse claimant ousts
the preceding claimant

Concurrent owners
• Co-tenants may not adversely possess each others' interests
unless ouster has occurred
» I.e., to adversely possess a co-tenant, the co-tenant must
be excluded from the land for the statutory period
» The statutory period begins once exclusion begins

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LAND SALE CONTRACTS & CONVEYANCING

Land sale contracts - subject to the SoF and must be:

1) In writing
2) Signed by the parties to be bound
3) Articulate essential terms (e.g., consideration to be paid,
description of the land)

Exception - partial performance

• A land sale contract is outside the SoF if the buyer does any two
of the following:
a) Pays all or part of the purchase price;
b) Takes possesion; and/or
c) Makes substantial improvements

Land sale process:

1) Contract - agreement to buy/sell land
2) Escrow period - transfer of funds through escrow
3) Closing - escrow completion to deed transfer
4) Conveyance - successful deed transfer, upon which property is
conveyed to the new owner

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EQUITABLE CONVERSION & RISK OF LOSS IN LAND SALE

CONTRACTS
Equitable conversion - during escrow (after land sale contract but
before deed delivery), buyer owns the real property, but seller owns
personal property (the right to proceeds of the sale)
• Seller holds legal title in trust for buyer

Death of a party - if buyer or seller dies before closing, rights to the

contract pass according to interests held
• Seller's interest passes as personal property
» I.e., seller's heirs can sue for sale proceeds
• Buyer's interest passes as real property
» I.e., buyer's heirs can sue for delivery

Risk of loss - if property is destroyed before closing through no

fault of the parties, buyer bears the risk of loss
• Parties can contract differently
• Seller must credit any insurance proceeds from loss against the
purchase price

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IMPLIED PROMISES IN LAND SALE CONTRACTS

Every land sale contract contains two implied promises:

1) Promise to provide marketable title
» Promise that title is free from risk of litigation
» Defects rendering title unmarketable:
a) Acquired by adverse possession
b) Encumbered by interests (e.g., servitude, mortgage,
future interest); but seller has the right to satisfy
outstanding mortgages or liens with sale proceeds
c) Zoning ordinance violations existing at sale
2) Promise to disclose & make no material false statements
» Seller must not materially misrepresent facts or make false
statements concerning the property
» Seller must disclose latent material defects
» Seller cannot limit liability through disclaimers
» New property - seller/builder is subject to an implied
warranty of fitness/quality in construction

Remedy for breach - buyer must notify seller before closing and
give reasonable time for seller to cure defects
• If seller fails to cure, buyer can rescind, file for damages, demand
specific performance, or file suit to quiet title
• If buyer fails to notify seller before closing, contract merges with
the deed and seller is not liable

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DEEDS

A deed passes legal title from seller to buyer

Requirements - to be effective, a deed must be:

1) Lawfully executed - deed must be signed by grantor and must
reasonably identify the parties and the land
2) Delivered - requires intent to be bound by the conveyance
• Title passes upon effective delivery; cannot be rescinded
• Present intent controls; physical transfer not required
• Acceptance - grantee must accept the deed; acceptance is
usually presumed upon valid delivery
• Rejection by grantee =ineffective delivery

Three types of deeds:

1) General warranty - includes six covenants for title (see card 57)
2) Special warranty - grantor assures that:
a) He has not conveyed the land to another
b) The land is free from encumbrances made by grantor
3) Quitclaim - transfers whatever interest grantor purports to
have in property
» No covenants included; grantor is not even promising he
has title to convey

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GENERAL WARRANTY DEEDS &COVENANTS FOR TITLE

General warranty deeds include six covenants for title:

Present covenants (only breached at the time of delivery):

1) Seisin - grantor covenants that he is the rightful owner (i.e., has
title, possession) and that deed covers described land
2) Right to convey - grantor covenants that he has the right to
convey
3) Against encumbrances - grantor covenants that the land is free
from encumbrances (e.g., servitudes, mortgages)

Future covenants (only breached after delivery):

4) Quiet enjoyment - grantor covenants that grantee will not be
disturbed by a third party's claim of lawful title
5) Warranty - grantor agrees to defend against lawful claims of
title by others
6) Further assurances - grantor promises to perform future acts
reasonably necessary to perfect the title conveyed

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BONA FIDE PURCHASERS FOR VALUE (BFP)

A BFP purchases property for value (i.e., gives pecuniary

consideration) without notice of a prior conveyance

Purchasers:
• Includes mortgagees for value
• Does not include donees, heirs, or devisees
» Not protected by the recording statutes unless the Shelter
Rule applies (see card 54)

Notice - a buyer has notice of a prior conveyance by:

• Actual notice - actual knowledge, from any source
• Inquiry notice - what a reasonable inspection of the land would
reveal (regardless of whether buyer actually inspects)
• Record notice - knowledge from a routine title search
» E.g., a previous conveyance properly recorded in the chain
of title (not a wild deed)

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RECORDING STATUTES

If a prior conveyance or interest is not recorded, a subsequent

purchaser/ mortgagee may be protected under a recording statute
• Level of protection depends on the type of recording statute

Notice statutes - subsequent BFP always prevails

• Whether or not she recorded first, a subsequent BFP always
prevails over a prior grantee who fails to record
• Sample language: "No conveyance or mortgage of an interest in
land shall be valid against any subsequent purchaser for value
without notice thereof unless it is recorded"

Race-notice statutes - first subsequent BFP to record prevails

• Sample language: "No conveyance or mortgage of an interest in
land shall be valid against any subsequent purchaser for value
without notice thereof whose conveyance is first recorded"

Race statutes - first grantee to record prevails, regardless of

whether buyer is a BFP
• E.g., non-BFP purchaser who records first prevails over BFP
• Sample language: "No conveyance or mortgage of an interest
in land shall be valid against a subsequent purchaser whose
conveyance is first recorded"

See card 52 - BFPs for Value

See card 54 - Chain of Title Problems

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SHELTER RULE, WILD DEEDS, &ESTOPPEL BY DEED

Issues that can arise with recording statutes and chain of title:

Shelter rule - one who takes from a BFP will prevail against any
interest the transferor-BFP would have prevailed against, even if the
transferee had actual notice of a prior conveyance
• Protects donees, heirs, or devisees of BFPs who cannot qualify as
BFPs and would not otherwise receive protection under notice or
race-notice statutes

Wild deeds - a recorded deed unconnected to the chain of title

(e.g., due to a clerk's filing error)
• Record notice cannot be derived from a wild deed

Estoppel by deed - one who conveys land in which she has no

interest is estopped from denying the validity of the conveyance if
she subsequently acquires the same interest
• Prevents one from fraudulently conveying land and later validly
acquiring it (i.e., laundering title)

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REAL ESTATE BROKERS & AGENTS

Most real property sales are negotiated by real estate brokers

Seller's agent ("listing broker") - broker who obtains listing from

seller, i.e., engaged by seller to assist in sale of property
• Has fiduciary duty to seller
• Earns commission from sale of property once the sale closes
» Seller's agent may still earn commission if the sale fails to
close due to seller's fault (e.g., seller backs out)

Buyer's agent ("selling broker") - primary relationship is with

buyer, e.g., shows buyer potential properties buyer may purchase
• Typically compensated by receiving a portion of the listing
broker's commission, i.e., gets paid out of seller's agent's
commission
• Owes a fiduciary duty to seller b/c buyer's agent is technically a
subagent of the seller's agent

Duty to disclose - agents have a duty to disclose material

information about which they have actual knowledge

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••

MORTGAGES

A security interest in land that serves as collateral for the repayment

of a loan (a.k.a . "mortgage deed ," "note")
• Must be in writing to satisfy the SoF
• Mortgagor =debtor/ borrower/landowner
• Mortgagee =creditor

Parties' rights
• Lien Theory (majority) - mortgagor has title and the right to
possession absent foreclosure (see card 58)
» Mortgagee has a lien, conferring a right to take action for
ownership of the land if the mortgagor defaults on the loan
• Title theory (minority) - mortgagee has title to the property
during loan term, not mortgagor-borrower
• Note - unless instructed otherwise, assume lien theory applies
on the MBE

Equitable mortgage - debtor gives creditor a deed to his land as

collateral for the debt (instead of executing a mortgage)

Acceleration clauses - terms in loan agreements that require

mortgagor to payoff full loan immediately if certain conditions are
met, e.g., if mortgagor misses too many payments

See cards 57-59 on Mortgages

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••

TRANSFERABILITY OF MORTGAGE INTERESTS &HOLDER IN DUE

COURSE STATUS
A mortgagee (creditor) can transfer her interest by:
• Endorsing the mortgage note and delivering it to transferee
• Executing a separate assignment of the mortgage interest

Holder in due course

• A holder in due course takes a mortgage note free of any
personal defenses the mortgagor could have raised against
the original mortgagee (e.g., lack of consideration, fraudulent
inducement)
» He still remains subject to real defenses (e.g., material
alteration , duress, fraud , incapacity, infancy, illegality,
insolvency)

Requirements for holder in due course status:

1) Negotiable note - note must be negotiable, made payable to
the named mortgagee
2) Endorsed and signed - note must be endorsed or signed by the
named mortgagee
3) Delivered - note must be delivered to the transferee
4) Good faith and value paid - transferee must take the note in
good faith (i.e., without notice of illegality) and pay value

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••

FORECLOSURE & MORTGAGEE RIGHTS TO PROPERTY

Foreclosure - upon default, mortgagee can satisfy debt through

foreclosure by judicial action
• Property is sold to satisfy the debt in whole or in part
• Deficiency judgment - if the debt exceeds sale proceeds,
mortgagee can file suit against mortgagor for debt balance
• If proceeds exceed the debt balance, junior liens are paid in order
of priority

Redemption in equity - at any time prio r to the foreclosure sale,

mortgagor can redeem the property by paying the amount due
• Some jurisdictions allow mortgagor, for a certain period, to buy
back the property after foreclosure sale

Mortgagee possession - mortgagee's right to possession prior to

foreclosure depends on the jurisdiction:
• Lien theory - no right to possess prior to foreclosure
• Title theory - right to possess at any time upon demand
• Mortgagee can always take possession with mortgagor's
consent or abandonment
• Mortgagee in possession assumes the risk of accounting for
rents, managing property, and tort liability to third parties

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••

FORECLOSURE & MULTIPLE CREDITORS/INTERESTS

Priority of creditors - creditors must record their interests

• Recorded interests take priority in the order recorded
• Purchase money mortgages (PMM) - superior to all interests
» PMM =mortgage given in exchange for funds used to
buy the property; PMM is given either to the seller as part
of the purchase price or to a third-party lender (if both,
seller's PMM is senior to the third-party lender)
• Creditors can agree to subordinate priority to a junior creditor

Junior interests - terminated by foreclosure of a superior claim

• Foreclosure terminates all junior interests; junior interest holders
cannot look to the land to satisfy debts
» Junior interest holders can seek a deficiency judgment
against debtor, ensuring the debtor remains liable for the
balance on the junior mortgage
• Junior interests are necessary parties and must be included in a
senior foreclosure action
» Otherwise, the junior mortgage will remain on the land

Senior interests - unaffected by junior interest foreclosures

• Buyer of foreclosed property takes it subject to senior interests
» Buyer is not liable for senior debt, but the senior mortgage
remains on the land

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LATERAL & SUBJACENT SUPPORT

Lateral support:
• Ownership of land includes the right to have land supported in
its natural state by adjoining land; landowners can be liable for
excavations that cause damage to adjacent land
• P can bring claims under two types of liability:
1) Negligence - if adjacent landowner's excavation causes
damage to developed land , excavating owner is only liable
if he acted negligently
2) Strict liability - P must show his land would have
collapsed, even in its natural state, due to D's excavations

Subjacent support:
• Underground (subjacent) structures must support surface
structures existing when the subjacent estate was created
» Subjacent owners are strictly liable for failure to support
pre-existing surface structures
• Negligence standard applies for subjacent structures erected
prior to surface structures
• Subjacent structures include parking garages, tunnels, mines,
etc.

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WATER RIGHTS IN WATERCOURSES

Land bordering watercourses (natural or artificial bodies of water,

e.g., lakes and rivers) is governed by either the riparian doctrine or
the prior appropriation doctrine

Riparian doctrine - water belongs to those who own land bordering

the watercourse. Two theories:
1) Reasonable use theory (majority) - riparian owners share rights
to reasonable use and are liable to other owners if their use
unreasonably interferes with other owners' use
» Balance utility of use vs. gravity of harm
2) Natural flow theory (minority) - riparian owners may be
enjoined for any use resulting in a substantial or material reduc-
tion in others' water quantity or quality
• Natural uses prevail over artificial uses (under both theories)

Prior appropriation doctrine - water rights are originally acquired

by actual use
• Priority of beneficial use determines rights to water
» E.g., first individual to make a beneficial use of water (i.e.,
productive use) has superior legal right to its use

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WATER RIGHTS IN GROUNDWATER &SURFACE WATER

Groundwater - water beneath the surface not confined to a known

channel (e.g., water in wells)
• Surface owner is entitled to make reasonable use of groundwater,
but must not be wasteful (majority)

Surface water - water from rain, springs, or other runoff that has
not yet reached a natural watercourse
• Landowners can generally use surface water as they please, but
may be liable for interrupting its flow
• Liability depends on which theory applies:
» Natural flow theory - owners cannot unreasonably alter
natural drainage
» Common enemy theory - owners can do anything
to change drainage or combat flow unless it causes
unnecessary damage to others' land
» Reasonable use theory - utility of use is balanced against
the gravity of harm from that use

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GOVT. ZONING POWER, VARIANCES, &NONCONFORMING

USES
Pursuant to its police powers, govt. may enact statutes to
reasonably control land use (cities and counties must be authorized
to do so under an enabling act)
• Zoning ordinances must be reasonably related to the public
welfare, not too restrictive, and not racially discriminatory

Variances - landowners can get govt. permission to be exempt or

vary from literal restrictions of a zoning ordinance
• To qualify for a variance, a landowner must show:
1) Undue hardship, and
2) Variance will not negatively impact surrounding property
values

Nonconforming use - a once lawful existing use for property, now

deemed nonconforming under new zoning laws
• Govt. cannot eliminate a use all at once (i.e., "zone out") unless
just compensation is paid
» Govt. may provide the landowner with amortization,
whereby govt. will make payments to the landowner over a
set period of time until the landowner recoups the value of
the nonconforming use

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SPECIAL USE PERMITS & EXACTIONS

Special use permit - certain property uses require a special use

permit even where zoning generally allows the type of use (e.g.,
hospitals and drive-thrus in commercial zoning districts)

Exactions - condition for govt. approval of a new development

• Condition is usually a payment or gift of property to govt. to
offset the development's demands on public services
» E.g., due to population increase from a new housing
development, govt. will have to install new bus stops and
traffic lights in surrounding areas - govt. can seek some
exaction (e.g., payment) from developer
• Requirements - exactions are unconstitutional unless they
satisfy the following:
1) Nexus - there must be a rational relationship (nexus)
between the exaction sought by the govt. and the burden
on public facilities
2) Proportionality - exaction must reasonably relate, in
nature and scope, to the impact of the development

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CONFLICTS OF LAW IN REAL PROPERTY

Real property is subject to the law of the jurisdiction where it is

situated
• E.g., a dispute over property in CA is generally governed by CA
law
• Applies to the disposition of real property, whether by descent,
deed, or other method

Ks related to real property - generally governed by the law of the

place where the property is situated
• Traditional conflict of law rules may apply if property is merely
incidental to a K and the K is of a personal nature

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