Michael Seymour

Rowberry Spring 2015

FIRST POSSESSION
I. DISCOVERY
A. Acquisition by discovery
1. Discovery Doctrine first one there gets the land
a. First in time, first in right
B. Acquisition by conquest
1. Taking possession of territory by force
C. Locke’s Labor Theory/Sweat Equity
1. Putting labor into the land makes it your property
a. If you are on the land but don’t change it up enough, the next person who comes along
to put labor into it owns the property by rule of discovery
II. CAPTURE
A. Rule of capture/occupancy
1. The first to actually capture the animal owns it OR
2. Mortal wounding + hot pursuit
B. Custom plays a huge part
1. The custom may help define capture
C. Abuse of right doctrine an owner abuses their property right when she exercises that right with
the subjective intent of harming someone
1. Ex H abused his property right by firing his weapon
D. Fugitive resources  like oil, gas, and others that tend to flee
1. Viewed like wild animals because it can escape from one person’s property to another
2. Under Rule of Capture original owner is generally not liable because when they escape
they are no longer the property of the resource
III. CREATION
A. Hot News Doctrine
1. P has quasi property right in its news so long as it retained commercial value. It was unfair
competition for D to use the news they did not compile
a. No property right in the news itself, but in the dissemination (distribution) of news
(1) Why? Creators were first in time and put time and labor into the news
B. General rule for copying:
1. Absent common law or statutory protection: a man’s property right is limited to those
chattels which embody their invention and others may imitate at their pleasure
2. Encourages competition which is good for the economy
C. Patents granted for processes or products that are novel, useful, nonobvious
D. Copyrights protects the expression of ideas in books and articles, music, artistic work
E. Trademarks words and symbols indicating the source of a product or service
1. Owners of marks are protected against use of similar marks by others when such use would
result in confusion
IV. PROPERTY IN ONE’S PERSON/PERSONA
A. Persona
 1.Any appropriation of someone’s likeness or anything that evokes their personality is a
property right
B. Person
1. Conversion = wrongful exercise of ownership rights over the property of another
2. No conversion if the party had no ownership interest in the property
V. RELATIONSHIP BETWEEN PEOPLE WITH RESPECT TO THINGS
A. Bundle of rights one or more can be infringed without breaking ownership
1. Possess
2. Use
3. Exclude
a. Right to exclude others from land is one of the most essential sticks in the bundle of
rights that is property law
b. Trespass Interference with the right to exclude
c. Right to exclude is not absolute
(1) Cannot refuse to allow people trying to come on your land and help the injured
4. Dispose
5. Include/transfer
SUBSEQUENT POSSESSION
I. FIND
A. General rule: you have superior claim over the property against all but the original owner
1. Law of find finder prevails against all but true owner or prior possessors
a. Why? Efficiency we would all have to prove ownership all the time if the right of
possession is not protected
B. While a man possesses everything attached to or under his land, he does not necessarily possess
at thing lying unattached to it
1. The founder of lost property has superior title against the owner of the land on which it was
found
a. However, trespassers never have claims over landowners
C. Property placed voluntarily by owner then neglected is different than property lost
1. So P acquires no original property right where P found wallet on table in D’s store, D kept
wallet and P claimed it was his because acquisition by find
a. Facts will drive the outcome of the case
A. Three part system in law of finds

RULE Elements Example

Finder prevails against Involuntary action O’s lucky penny falls
LOST all but true owner and + through a hole in his
prior possession Unintentional pocket onto the ground
O places wallet on
Voluntary action
Finder has no rights to store counter, forgets
MISLAID +
property about it, and leaves it
Unintentional
there
Thee finder is entitled to Voluntary action O leaves broken toy on
ABANDONED keep against all. Finder2 + sidewalk so garbage
is the new owner Intent to abandon men will collect it
II. ADVERSE POSSESSION OF REAL PROPERTY
A. Concept When you go onto land that you don’t own and stay there long enough  it becomes
yours
B. Elements of AP
1. Exclusive
a. Ave to be keeping people out, adverse possessor must be the only possessor
(1) But can still allow others on as the normal owner would (as invitees, licensees,
etc.)
(a) Just not the general public
2. Continuous for statutory period
a. Does not have to be constant for the statutory period, but used in a manner that an
ordinary true owner would use
b. Depends on the nature, location, and character of the land
3. Hostile
a. Adverse under a claim of right to title
b. JD SPLIT:
(1) CT standard [Objective Standard]: it doesn’t matter what the state of mind is
(a) Majority
(2) ME rule/Aggressive trespass standard: adverse possessor must know the land
is not his
(3) Good faith standard: requires that you thought you owned it
(a) Minority
4. Open and Notorious
a. Entry must be sufficiently open and notorious as to put a reasonable property owner
on notice that someone is on their property
(1) Actual knowledge not necessary unless minor border encroachment
(2) For border encroachments owner must have actual knowledge of the minor
encroachment to meet the open and notorious standard
5. Actual Possession
a. Must be physical entry
b. Must not simply enter, but actually possess and use the land as the owner would
(1) Acts necessary to meet this requirement vary depending on the nature, character,
location of the land, and uses to which it may be devoted
(a) Ex if you’re trying to AP 100 acres of farm land, you must cultivate all
100 acres
(2) Exception: constructive possession
(a) Color of title: a claim to land found upon a written instrument or judgment
or decree that is for some reason defective and invalid
(i) An adverse possession claim under color of title will help your case
(ii) Actual possession under color of title of only a part of the land
covered by the defective writing is constructive possession of all
that the writing describes

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  Whereas, if there is no color of title, you will only be able to
claim the land you worked on
C. Theories of AP
1. Labor Theory put work into the land and other people who owned it didn’t do anything
so it should be yours
2. Sleeping Doctrine promotes action on the land. Want to penalize people for neglecting
the land
3. Economic Theory
4. Quiet Title want to know who owns the land and who doesn’t. Promotes finality and
stability
D. Cannot adversely possess the Government’s land
E. Disability
1. An owner’s disability only stops the SOL from running if it is there before the adverse
action accrues (before the person entered the land with intent to adversely possess)
2. Being in jail is considered a disability for these purposes
F. Tacking
1. You can “tack” AP by adding together different possessors to meet the statutory
requirements
2. Possessors must be in privity AND transfer possessory interests
3. Example AP1 on land for 8 years, transfers to AP2 for 7 years, transfers to AP3 for 5
years. AP3 gets title by way of adverse possession as long as every other element is met
III. ACQUISITION BY GIFT
A. Three elements of legal gift giving
1. Intention of giving gift
a. Does not have to be express
b. If it is implied it must be clearly implied
c. Written > oral > conduct
(1) Conduct is used to bolster/erode
(a) Kind of like the tie breaker
d. Written evidence becomes tricky when the question of “who” wrote it arises
2. Delivery/Transfer
a. Manual delivery is preferred if possible to do so
(1) Actual delivery
b. Constructive delivery handing over a key/codes that gives access to a bigger gift
(cars, houses)
(1) Constructive delivery where D hands her keys to the Bureau
c. Symbolic delivery writing or note to symbolize the gift
(1) Allowed when not physically near the recipient
(2) Notes, paper
3. Acceptance
a. Acceptance is presumed unless explicitly rejected
B. Causa Mortis gift
1. A gift made when death is impending

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 a. Must have a life-threatening illness
2. Many states don’t enforce these. Why? Because you need a will
a. Wills trump CM gifts
3. Newman v. Bost (guy gave maid key to house and bureau. Bureau had life insurance policy
in it. Court found that he had not given her the life insurance policy simply because he gave
her the key to the bureau)
a. Court allowed the furniture by constructive delivery here because of their size
and weight
4. Where the articles are present and capable of manual delivery (a piece of paper in the
room with the life insurance policy) then they must be manually delivered
5. If a donor makes a Causa Mortis gift and ends up living, the gift is revoked
C. Inter Vivos gift
1. A gift made during one’s life
2. Once 3 elements are met: Inter Vivos gifts are irrevocable once completed because the
ownership has transferred and there is a new owner
3. Gruen v. Gruen (guy wrote letter saying he intended to transfer rights of the painting to his
son, even though he wanted to keep the painting in his house until he died)
a. An Inter Vivos gift requires that the donor intend to make an irrevocable present
transfer of ownership (which the father did through his letter and only retained a life
estate in it)
b. If he intended to make a testamentary gift effective only after his death it would be
void unless it was in the will
(1) That makes it a Causa Mortis gift
D. Conditional gifts include engagement rings
1. If wedding is called off, guy gets ring back because marriage is an act or event that must
occur before the gift is completed

ESTATES IN LAND
VI. POSSESSORY ESTATES
A. Fee simple absolute
1. General:
a. Highest form of ownership
b. Potentially infinite duration
c. Gives no future interest in another person
(1) Unlimited heritability
d. Free alienation of land is the key principle. Ownership is unconditional
2. Defined:
a. Fee = duration is unlimited
b. Simple = unlimited heritability
c. Absolute = ownership is unconditional and totally within the power of the owner
3. Creation of a fee simple
a. Modern law assumes the grantor intended to transfer a few simple unless they
specifically state they intended to grant some lesser estate
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 4. Inheritance of a few simple
a. If a person dies intestate (without a will), the decedent’s property descends to his heirs
(1) Heirs people who survive the deceased
(a) Nobody is an heir to the living!
b. If a person dies intestate, hierarchy is:
(1) Spouse
(2) Issue: children, grandchildren, etc.
(3) Ancestors: parents
(4) Collaterals: all persons related by blood to the decedent who are neither
descendants nor ancestors
(5) Escheat: if a person dies with no heirs, the land is escheated to the state where
the property is located
B. Life Estate
1. Measured by the lives of one or more specified person (the original grantee, A)
a. “O to A for life”
b. Lasts for the life of the grantee
(1) Ends after death of the original grantee
c. Always a future interest in a life estate
(1) Reversion the interest goes back to the grantor
(2) Remainder the future interest is given to someone else, not the original
grantor
(a) Special person who gets it if the original grantee dies
(b) “O to A for life, and then to B and his heirs”
2. Life Estate Per Autre Vie
a. Someone has granted a life estate and the person holding the life estate gives it to
someone else. That person holds the life estate for the duration of the life of the
original grantee
(1) A to B for the life of C
3. Transfer of a LE can transfer what he has (a life estate measured by his own life), but
nothing more
4. Life tenants cannot commit waste:
a. Affirmative Waste: voluntary, injurious act that substantially reduces the MV of the
property
(1) Can use property for ordinary use as the owner would have
b. Permissive Waste: not a voluntary act, but instead a failure to take care of property
(negligence)
(1) MV decreases
(2) Ordinary repairs and maintenance are necessary (ordinary is what is objectively
reasonable)
(3) Life tenant pays taxes on property
c. Ameliorative Waste: anything that changes the property and increases the property
MV  JD SPLIT

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 (1) Majority: if your acts increase the property value/there is no reduction in MV
you can make substantial alterations
(2) Minority: any material alterations to the property are waste even if you add to
the property value
VII. DEFEASIBLE FEES/ESTATES
A. Defeasible may terminate, prior to its natural endpoint, upon the occurrence of some specified
future event. Primary purpose = land use controls
1. What you may/may not use the land for
B. 3 types of defeasible fees simple:
1. Fee simple determinable (2 parties in original grant)
a. Fee simple automatically forfeited by grantee if a stated event/condition happens
(automatic reversion)
b. Language = durational
(1) So long as, while used for, during, until
c. Future interest = possibility of reverter
d. Example: “O to A so long as the premises are used for residential purposes”
(1) O has possibility of reverter
e. Adverse possession SOL clock begins when the condition has occurred
2. Fee Simple Subject to Condition Subsequent (2 parties in original grant)
a. Fee simple may be cut short if a stated event happens
b. Language = conditional
(1) But if, provided, however, on condition that
c. Future interest = right of entry
(1) Power of termination
(2) Grantee is still entitled to land until this right is exercised
d. Example:
e. Adverse possession SOL clock begins when grantor exercises right of entry
f. DIFFERENCE here, the grantor must exercise the right of entry or the fee simple
remains
3. Fee Simple Subject to Executory Limitation (3 parties in original grant)
a. When grantor grants a defeasible fee simple + creates a future interest in a third party
in the original grant
(1) Defeasible language + 3rd party
b. Automatic forfeiture by grantee if condition is breached
c. Future interest in third party = executory interest
(1) Rather than grantor or his heirs
d. Language = can be durational or conditional
e. Example: “O to A so long as … but if that does not happen, then to B
(1) A has fee simple subject to executory limitation of …
(2) B has executory interest in fee simple
(3) O has nothing because he transferred his future interest to B
4. Any condition that may be imposed on a fee simple estate may also be imposed on a life
estate

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 DEFEASIBLE
TYPE OF LANGUAGE INTEREST RETAINED TERMINABILITY
ESTATE
Durational: so long as, Automatically
Fee Simple
while used for, until, Possibility of reverter terminated once
Determinable
during, until condition is breached
Conditional: but if,
Fee Simple Subject to provided, however, on Terminates if right
Right of entry
Condition Subsequent condition that, but in the of entry is exercised
event that
Fee Simple Subject to Creates interest in 3rd Executory interest in fee
Automatic
Executory Limitation party simple
5. Limitations on conditional restraints
a. Some personal conduct restraints violate public policy
b. Cannot violate a fundamental right
c. Cannot limit it to an illegal activity
d. Limited by state statutes
e. As long as it is not too egregious of a restraint, it is allowed by courts
(1) BUT IF it is too egregious  courts strike out the offending language and the
rest of the grant is enforced

VIII. FUTURE INTERESTS

A. Generally
1. Always attached to a fee simple, life estate, or other estate
2. Non-possessory interest that will or may become a possessory interest in the future
B. Interests retained by the grantor/transferor
1. Reversion
a. Interest left in the OWNER when he carves out of his estate a lesser estate and does
not provide who is to take the property when the lesser estate expires
b. If O, FS owner, granted land to A for life, the land would revert to O at A’s death
c. Ask if owner has conveyed his entire estate
2. Possibility of reverter
a. Future interest remaining in the grantor/transferor or heirs when a fee simple/life
estate determinable is created
b. Automatically occurs once condition occurs
c. “O Conveys Blackacre to B so long as it us used for school purposes”
3. Right of entry (power of termination)
a. When the owner grants/transfers an estate subject to a condition and retains power to
cut short/terminate the estate
b. Right to re-enter and retake the premises
c. O conveys Blackacre to B, provided however, that B must use land for residential
purposes

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C. Interests created in the grantee/transferee [must have 3+ people in original deed]
1. Remainder:
a. FI created, capable of becoming possessory estate upon the natural termination
(death) of a prior estate created by the same instrument
b. Waits until the preceding possessory estate terminates
(1) NEVER follows a fee simple
(2) NEVER divest or cut short another estate for any reason
(3) NEVER directly follows possession by the grantor
(4) Does not have to be certain, just possible
c. Vested Remainder (courts favor vested over contingent remainders)
(1) Indefeasibly vested remainder
(a) Elements:
(i) Ascertained person (presently identifiable, known) AND
(ii) Not subject to a condition @ time of grant
(b) Certain of becoming possessory in the future AND cannot be divested
(c) O to A for life, then to B and her heirs
(i) B has vested remainder in fee simple
(2) Vested remainder subject to open
(a) Vested remainder in a certain class of people with room to grow (children,
grandchildren)
(b) More members can be added
(c) O to A for life, then to B’s children. A is alive. B has 2 children: C and D.
(i) A has life estate.
(ii) B’s children have vested remainder subject to open in fee simple
d. Contingent remainder (might have it)
(1) Transferred to an unascertained person OR
(a) O to K for life, then to K’s heirs
(i) K has life estate
(ii) O has possibility of reverter
(iii) K’s heirs have a contingent remainder in fee simple
 Contingent on K’s death. K’s heirs cannot be ascertained until
K dies because “K’s heirs” refers to persons who survive K
(2) Made contingent upon some event occurring other than the natural termination
of the preceding estates (a stated event must occur before possession)
(a) O to A for life, but if B reaches age 21, to B and his heirs
(i) Contingent on the event of A dying before B
(b) O B for life, then to C and her heirs if C marries H
e. Contingent remainder subject to open:
(1) A B’s children who reach age of 30. B has 3 children who are 27, 23, and 20
(a) B’s children have a contingent remainder in fee simple subject to open
(b) O has a possibility of reverter
2. Executory Interest:

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 a. A future interest in someone other than the grantor having one or more of the
following features:
(1) EITHER:
(a) Divests or cuts short another’s interest in an estate in order to become a
possessory estate;
(i) Not following the natural termination
(b) Follows fee simple;
(c) Follows possession by the grantor
b. If FI in a transferee/grantee is NOT a remainder, it MUST be an executory interest
c. Springing executory interest
(1) Can have 2+ people in original deed
(2) Cuts off grantors or his heirs interests
(3) Divests the transferor in the future
(4) Language: can’t have durational language MUST be conditional language
(5) O  A if he becomes a banker of wall street.
(a) O has fee simple subject to A’s springing executory interest
(b) A has springing executory interest in fee simple
d. Shifting executory interest
(1) Divests or cuts short some interest in another transferee
(a) Someone other than the grantor and original grantee
(2) 3+ people in original deed
(3) O  B and his heirs, but if C returns from Idaho, to C and her heirs
(a) B has a fee simple subject to C’s shifting executory interest
(b) C has shifting executory interest in fee simple
(i) Because it would cut short the FS held by B, another transferee
(4) O A and her heirs, but if A becomes an attorney, then to B for life
(a) O has possibility of reverter (if A becomes an attorney, it goes to B and
then when B dies, it reverts back to O)
(b) A has a fee simple subject to B’s shifting executory interest
(c) B has a shifting executory interest in life estate
3. Big difference between remainders and executory interests:
a. Remainders take possession as soon as the prior estate naturally ends
b. Executory Interests divests the prior estate prior to it naturally ending

CO-OWNERSHIP AND MARITAL INTERESTS

I. TYPES OF CONCURRENT INTERESTS
A. Tenant in common
1. O to A and B
a. A and B have separate, undivided interests in the whole of the property
(1) Each co-tenant owns an individual part
(2) Each has a right to possess the whole
b. Interest of A or B is descendible, devisable, and transferrable
c. A conveys interest to C. What happens?
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 (1) B and C now have Separate, undivided interests, so now C has ½ tenancy in
common with B.
(2) One year later, B dies. What happens?
(a) It goes to B’s heirs.
2. No survivorship rights
a. If A dies, B does not get his interest.
3. Presumption in favor of this concurrent estate (DEFAULT)
B. Joint tenants
1. 2 or more people. Tenants together are considered a single owner
2. Right of survivorship (survivor wins it all)
a. Whoever lives the longest (outlives the others) gets the whole upon all of the other’s
deaths
(1) It doesn’t go to their heirs
(2) It is not descendible, devisable, or transferrable
3. Four Unities are essential to JT
a. Time interest of each JT must be acquired or vested at the same time
(1) When the will or other instrument is created. On the same deed.
b. Title All JTs must acquire title by the same instrument (will) or by joint adverse
possession
(1) JT can never arise by intestate succession
c. Interest All JTs must have equal and undivided shares and identical interests
measured by duration
d. Possession each JT must have a right to possess the whole
(1) However, after JT is created, one JT can voluntarily give exclusive possession to
the other
4. If somebody tries to make a JT and fails it becomes a tenancy in common
a. Why? Because tenancy in common is the default
5. Must expressly declare you are creating a Joint Tenancy
6. Severance of a joint tenancy (can be destroyed after it is created) SPAM
a. Sale
b. Partition selling pieces, usually a judicial auction
c. Mortgage only states that follow the title theory say that a mortgage severs joint
tenancy. JD SPLIT:
(1) Lien Theory: a JT is not severed when there is a mortgage on the interest
because the joint title is still in existence
(a) If person who took out mortgage dies mortgage dies with him
(b) If other person dies, the person who takes out the mortgage defaults, and
the bank takes the whole
(c) If person who takes out mortgage defaults, tenancy is severed, and second
person and bank are tenants in common
(2) Title Theory: mortgage functions as a conveyance of the estate, so taking out a
mortgage severs JT
7. Tenant of JT can unilaterally sell their interest in a JT

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 a. Dissolves JT and becomes TIC
b. If 3+ people:
(1) If 1 person dissolves their interest in JT, JT between others not dissolved
(a) Can have 1/3 TIC and 2/3 JT
c. If 2 people, and 1 unilaterally conveys his land, JT is dissolved and the 2 people now
both have ½ TIC
8. O conveys Blackacre to Phoebe, Ross, and Monica as joint tenants with the right of
survivorship.
(1) Each owns 1/3 joint tenancy with right to possess the whole
b. Phoebe sells her interest to Chandler. What is the state of the title?
(1) C has 1/3 tenancy in common. Ross has 1/3 joint tenancy, Monica has 1/3 joint
tenancy
c. Later, Ross dies, leaving behind his heir, Rachel. What is the state of the title?
(1) Because of the right of survivorship, Monica has 2/3 tenancy in common and
Chandler has 1/3 tenancy in common
C. Tenancy by the entirety
1. Only created in husband and wife
2. 4 Unities of JT + marriage
3. No unilateral conveyance
4. Very protected form of ownership
a. Creditors of only 1 spouse cannot touch this tenancy
b. Surviving tenant has right of survivorship
(1) After husband’s death, his creditors can’t touch the tenancy because husband’s
interest disappears upon death
(2) DOES NOT GO TO PROBATE
c. Divorce terminates tenancy
(1) Generally it becomes a tenancy in common
d. Not commonly used only a few states still use this
II. RIGHTS AND DUTIES OF CO-TENANTS
A. Severance and Partition: when concurrent owners decide to terminate a co-tenancy. This may be
done through:
1. Voluntary Agreement
2. Partition in Kind court orders some physical division of property
3. Forced Sale court action if in best interest of all parties where property is sold and
proceeds divided up proportionally at an auction
B. Possession
1. Co-tenants have the right to possess and enjoy the whole
C. Rent from co-tenant in exclusive possession
1. A co-tenant in exclusive possession does not have to pay rent to other co-tenants UNLESS
there is ouster
a. Ouster occurs when a co-tenant in possession refuses the request of another co-tenant
to share possession of the land
D. Rent from third parties

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 1. Co-tenant is leasing the entire land to another party and no co-tenants are living on the
property, then he MUST divide up the rent between all of the co-tenants
2. Difference between this and (3) is that NO co-tenant is living on the property
3. Other co-tenants do not have to object. They are automatically entitled to that rent money
E. Adverse possession
1. One co-tenant must be hostile to the other co-tenant in order to begin AP clock
F. Carrying costs
1. Taxes, mortgage
2. All co-tenants must pay their fair share based on the % of their interest in land
G. Repairs
1. To be billed to all, must:
a. Be reasonably necessary
(1) Higher standard than waste
b. Give fair notice to other co-tenants that you are going to repair
2. All co-tenants pay their fair share based on the % of their interest in land
H. Improvements
1. Generally, no requirement for co-tenants to reimburse for improvements
2. BUT at time of partition the improving co-tenant will get credit for any increase in value
that his improvements cause
a. But also take on liability for any decrease in value/damage done while trying to
improve the land
(1) “Improve at your own risk”
I. Waste
1. Liable for any waste you cause while you are living on the property and your co-tenants are
not
a. Affirmative, permissive, ameliorative
III. MARITAL INTERESTS
A. Common Law States
1. Married Women’s Property Acts: gave women the right to act in the interest of their own
property even if they were married
a. Separate property
2. Termination of marriage by divorce
a. No fault divorces:
(1) Equitable distribution to divide property by courts
(2) Factors in equitable distribution
(a) Income and property of each spouse at the time of marriage
(b) Duration of marriage
(c) Age and health of each spouse
(d) Income and property of each spouse when divorce action begins
(e) Occupation and vocational skills of each spouse
(f) Pre-nup?
(g) Special needs

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 (h) Contribution of each spouse to marriage in terms of acquisition of assets
and provision of household services
(i) Dissipation of assets by each spouse during marriage
(j) Opportunity of each spouse for future employment
(k) Degrees as marital property subject to equitable distribution?
(i) Majority not property subject to distribution
(ii) Minority it is property
(iii) Reimbursement alimony: A degree is not property BUT
compensate the supporting spouse for economic sacrifices made
during marriage
3. Termination of marriage by death of one spouse
a. Modern Elective Share: IF NO WILL 1/3 or ½ of estate goes with surviving
spouse
(1) Uniform Probate Code: surviving spouse can keep any property devised in the
will but it is credited against the elective share
(a) Ex if willed a piano worth $1000 and elective share is $3000, you can
take the piano and get $3000
B. Community Property States (Kinda like CL Concurrent Interests)
1. Adopted by 10 states
2. General principles:
a. Earnings of each spouse during marriage divided equally
b. Property acquired before marriage stays separate
c. Property acquired during marriage by inheritance stays separate
d. Divorce = equal division of community property
3. Management of CP:
a. Usually one community manager who manages for the benefit of the community
b. Need both parties’ consent for land transfer
c. Liability to creditors follows management and control
4. CP vs. CL Concurrent Interests
a. CP cannot be unilaterally conveyed
(1) But if it was property acquired before marriage or as a gift, it can be unilaterally
transferred
b. Only husband and wife can own CP
c. No right of survivorship of CP (unless there is a JT)
d. Tax benefits
5. Rights upon death
a. Half and half unless JT
6. Mixed community property with separate property
a. Wife pays 1/3 down on the house before marriage then uses community earnings after
marriage to pay other 2/3. Who owns the house?
(1) JD SPLIT:
(a) Inception of right rule: character of the asset is determined at the time
when the right begins

14
 (i) Wife owns the entire house because she made the first payment
(b) Time of vesting rule: when title vests, when the character of the property
is determined), they get title to the home when it is fully paid off
(i) When the mortgage is paid off
(ii) Wife = ½ and husband = ½
(c) Pro-rata share rule: proportionality
(i) Left with what you invested
(ii) Wife would own 2/3 of house, and husband would own 1/3
7. Migrating couples
a. Rule: domicile of spouses when the property acquired determined the type of property
(1) If you move from CP to non-CP state
(2) Initial domicile of property does not change unless the parties want it to
b. Death
(1) Personal property The law in decedent’s state of domicile at death
(2) Real estate Law where land is located

LAND USE CONTROLS

IX. SERVITUDES IN GENERAL
A. An interest in land that is tied to the land that makes the land subservient to another
B. 3 types of land use controls:
1. Easements
2. Real covenants
3. Equitable servitudes
C. 5 functions of servitudes
1. Right to enter upon another’s land
2. Right to enter and remove something attached to another’s land
3. Right to enforce a restriction on the use of another’s land
4. Right to require someone to pay money damages for the upkeep of specified facilities
5. Right to perform some act on another’s land
X. EASEMENTS
A. In general:
1. Non-possessory right to use another’s land
a. You can’t have an easement over your own land
b. Requires 2 different parcels of land owned by 2 different people
c. Easements need not be between continuous parcels of land
B. Creation of Easements
1. Express Easements
a. By express words in a deed, written
b. 99% of easements
c. Reservations: creating a new servitude
(1) Dealing with an old right
d. Exceptions: excludes a pre-existing servitude from the grant
15
 (1) Dealing with an old right
2. Easements implied from prior existing use
a. Easement by prior existing use
b. Factors to consider in determining whether there is an implied easement by prior
existing use:
(1) A large parcel of land has been subdivided
(a) Severance of title
(2) Must be an existing, apparent use of part of the tract for the benefit of
another part
(3) Must have continuous or permanent use
(a) Can’t be like you bought the property and no one was using it for 20 years
(4) Reasonable necessity for the use at the time of severance
(a) Sewer line is reasonable
3. By Necessity
a. To show an easement is created by necessity, must show:
(1) Unity of ownership
(a) There was a large parcel of land that has been subdivided
(b) There used to be an unity of ownership if the alleged dominant and
servient estates
(i) There was once a large parcel of land that has been severed into this
unity of ownership
(ii) Unity of ownership before severance
(2) Necessity and not merely a convenience
(a) Difficult part is deciding what constitutes a necessity
(3) Necessity existed at the time of the severance of the 2 estates
(a) PP: trying to avoid people creating easements after the fact whenever they
actually need it
b. What constitutes necessity? JD SPLIT
(1) Majority Strict necessity: there must literally be no other way
(a) You must need a pathway to get out to the road
(b) If you have water access, sucks. Gotta take a boat
(2) Minority reasonable necessity
(a) Cost-benefit analysis
(3) Courts are reluctant to grant easements by necessity if there is any other possible
way
(a) Because you are giving a legal right to use someone else’s land for free
4. Easement by Prescription
a. Basically, easement by adverse possession
b. Elements:
(1) Actual
(2) Open and Notorious
(3) Hostile
(a) Cannot have an AP claim if the owner is permitting you to use the land

16
 (4) Continuous
(5) Exclusive
(a) Others must not be using it
c. Permission always negates prescription
5. Easement by public trust
a. Big with beaches
b. Rule: Public trust in beaches from the mean high tide (where the high tide strikes the
sand on average) to the water
(1) Which means, private beach clubs cannot keep you out of that area
(2) Dry sand is privately owned and they can keep you out of that part, but cannot
on the wet sand
C. Types of easement use
1. Affirmative
a. Right of use
b. Much more common
c. Example you can build a path on my land
(1) Right of way
2. Negative
a. Right to restrict
b. Forbid somebody from doing something
c. Traditionally frowned upon. Much less common
(1) Don’t like private parties telling other parties what they can and cannot do on
their property
d. Example you can’t build a house that blocks my view of the mountains
3. Profit
a. Right to take something from land that is considered to be a part of the land
(1) Right to enter and remove some part of the land
b. Examples  timber, fish
D. Types of easement benefits
1. Appurtenant (Default because it doesn’t restrict the use of the land)
a. Benefits the parcel of land, the right adheres to the land
(1) Whomever owns the land, even if its sold  it runs with the land to the next
owner
(2) Intent of the original grantor is that it benefits the land, so transferring it from
owner to owner doesn’t conflict with the original grantor’s original intent like In
Gross does
(3) Doesn’t disappear with transfer
b. Affirmative easement appurtenant right of way, path on my land to get to your land
(1) Driveways
c. Always going to have a dominant and a servient estate
(1) Dominant estate property giving the easement to the servient tenant
(a) Giving the benefit to the servient estate
(2) Servient estate  property receiving the easement

17
 2. In gross
a. Benefits the person personally rather than the land
(1) If sold  does NOT run with the land to the next owner
b. Affirmative easement in gross I give B the right to use my boat ramp for 20 years
c. Does not transfer
d. Just a servient estate
(1) No dominant estate because there is only one estate giving an easement to a
person
e. Fear of easements in gross
(1) They might try to transfer the easement, which would frustrate the intent of the
original grantor
E. Length of Easements
1. In gross: Can specify how long you want it to last
a. Easement for life, easement for a term of years
2. Appurtenant: Can last indefinitely
3. Easements are irrevocable
a. Licenses are at will and can be revoked
b. This is the difference between a license and an easement
F. Assignability of Easements
1. Appurtenant easements are assignable because they run with the land and at some point
the land is going to switch hands
(1) Both parties have to have intended to make it assignable; AND
(a) The original grantor and grantee
(b) Typically the writing represents intent
(2) Notice to the servient estate
(a) Typically written down in the deed
b. A lot of this depends on the language of the original deed
c. Safe, easier, because it benefits the land
2. Easements in gross (personal easements) are assignable UNLESS they are recreational
easements
a. Commercial easements = assignable
b. Worried about it exceeding the original grantor’s intent
c. Benefits the person, land holder, not the land
d. Ex hunting, fishing, camping, boating
e. Are commercial easements in gross divisible? JD SPLIT
(1) Majority: Commercial easements in gross may generally be divided UNLESS:
(a) Contrary to the intent of the original parties; AND
(b) If it places an unreasonable burden on the servient estate
(2) Minority: Commercial easements in gross are divisible BUT:
(a) Have to have the common consent and joinder of the present owners and
must act as ONE STOCK
(i) Divisible, but still have to use it collectively as a whole
(b) One Stock Rule

18
G. Scope of easements
1. Extensions of easements JD SPLIT
a. Majority rule:
(1) Easement may not be extended to include connection with the non-dominant
estate
(a) Because it goes beyond the intent of the original party
(i) Could always negotiate with neighbor, but you cannot unilaterally
extend the easement
b. Minority rule:
(1) Can extend if:
(a) There is no increase in burden on the servient estate AND
(b) No appreciable hardship or damages to the servient estate
2. Changing location of easements JD SPLIT
a. Traditional Common Law Rule:
(1) A servient owner may not change the easement without the permission of the
dominant estate owner
b. Restatement:
(1) Servient estate can change the easement without the permission of the dominant
so long as it:
(a) Doesn’t significantly reduce utility
(b) Doesn’t increase burden on the owner of the easement
(c) Doesn’t frustrate the purpose
H. Termination of easements
1. Release: get together and say it’s no longer necessary
a. Must comply with SOF
2. Expiration: easement limited to a certain amount of years
3. Merger: easement owner becomes the owner of the servient estate so no longer needs
easement
4. Defeasible: certain event occurs
a. “Must use it as a driveway” but you build a basketball court
5. Estoppel: servient owner reasonably relied on a statement made by easement owner
a. Ex owner says he doesn’t need it anymore, so the servient owner builds a barn on
the easement
6. Condition is met/not met: easement granted for church purposes and they stop using it for
church purposes
7. Abandonment: user says they are going to legally or formally abandon something
a. Mere misuse does not extinguish the easement
(1) We look for an unequivocal manifestation of intent in order to relinquish or
conduct a purpose that is inconsistent with the easement of its future purpose
8. Condemnation: eminent domain, you have the right of way but the government needs it so
they take it
9. Prescription: servient owner wrongfully and physically prevents the easement from being
used for the prescriptive period

19
 a. Adverse possession
10. Necessity ends: easement by necessity no longer necessary
11. Generally, foreclosures do NOT extinguish easements
12. With preservation easements destruction of the property terminates the easement
XI. COVENANTS
A. Real Covenants v. Equitable Servitudes
1. Only real difference between real covenants and equitable servitudes is the type of damages
you are suing for
a. RC damages
b. ES injunction
c. Can sue under either one or both
B. Agreement that involves a burdened property and a benefitted property
1. Figure this out first
2. Benefitted property  land enjoying the benefit of the promise
3. Burdened property land bearing the burden of the promise
4. A gives a piece of his land to B provided that B does not build a gas station on it
a. B has the burden of promising not to build a gas station on the land
b. A has a benefit because B is not putting a gas station on the land
C. Privity a contractual relationship
1. Horizontal Privity
a. Between original covenanting parties
(1) Promisor is burdened
(a) Promisor has duty to perform that which he promised to perform
(b) Then trace line of succession back to original members
(2) Promisee is benefitted
(a) Promisee receives the benefit of the covenant (the right to have the
promise performed)
b. Not what we really worry about. If A sues B, or B sues A, just sue using contract
principles
2. Vertical Privity
a. Between original covenanting party and successor in interest
(1) Promisee and assignee; OR
(2) Promisor and assignee
b. What we actually worry about
c. Example:
(1) B promises A not to build a gas station on A’s land. A sells land to D, D has
vertical privity with A. After this sale, B builds a gas station and D wants to sue.
(a) D has to allege that even though he is not the original contract member, he
should get the benefit of the contract
(i) AKA the benefit ran to him

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 FOR THE BURDEN TO RUN: FOR THE BENEFIT TO RUN:
Agreement must be in writing Same

Must show intent to bind successors in that writing Same

The specific obligation/restriction must touch and concern

the land (difficult cases are affirmative covenants because they
Same
oblige you to do something like pay $500/year for upkeep.
Focused more on the owner not the actual land)

Need Horizontal privity of estateoriginal parties must have

Not required
had a contractual agreement concerning the land covenant

Need vertical privity new order must have same interest as

the previous owner (if previous owner had FS, new owner must New owner must have same interest or lesser interest
have FS b/c you can’t give something less)
Successor must have notice that there is a burden on the
Notice is assumed
property
D. Notice
1. Actual notice
a. Written down in the deed
2. Record notice
a. It is recorded in the Town-hall records. They can go find it.
3. Imputed/Implied notice
a. Facts and circumstances
b. If you buy a residential lot its implied you won’t put a zoo on it
4. Inquiry notice
a. You should have asked
b. Common sense test
c. Goes hand in hand with Imputed/implied notice
E. Equitable servitudes don’t require vertical or horizontal privity for burden, and for benefit it
doesn’t require vertical or horizontal privity AND doesn’t require notice
F. Affirmative covenants/ES
1. I will pay you money
2. Courts feel uneasy about enforcing these
3. Enforceable by associations (HOA or Condo Association)
a. They touch and concern the land because by paying an annual charge, an owner
acquires a right to a common easement to enjoy roads, beaches, public spaces, and
improvements in those areas
i. To fully enjoy these areas, the owners must help pay for their maintenance
ii. Courts tend to say a promise to pay money touches and concerns the land when
the payment is for the use of land or to pay for improvements
1. Because the burden is inseparably attached to the land, held by the
various owners, which enjoy the benefit
a. They are in privity because the associations are formed as a convenient means of
advancing the common interests of the property owners

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 (1) It would be almost impossible to separate the interests of the associations and
the interests of the individual owners
4. If you get an affirmative covenant that isn’t a HOA or condo fee on the exam LOOK
CLOSELY
G. Discriminatory Real covenants/ Equitable Servitudes
1. Are now invalid  struck down by FHA
H. Termination of covenants
1. Eminent Domain
a. Majority: local government must pay surrounding landowners (GA)
b. Minority: they don’t have to pay because they take contract right not a property right
(1) They aren’t taking YOUR property, they’re just taking a piece down the road
(2) Still can bring a suit for damages
2. Merger
a. On the basis of unity of ownership of the benefit and burden by the same person
3. Release
a. Normally written and recorded (to satisfy the SOF)
b. Difficulty when there is an oral release that someone relies on
4. Acquiescence
(1) When P has failed to enforce the servitude against another for a long time and
then seeks to enforce the servitude against he D
5. Abandonment
a. Resembles acquiescence except that it makes servitude unenforceable as to the entire
parcel rather than only as to the P immediately involved
(1) Abandonment has to be so general that it would frustrate the original
purpose of the restriction
6. Doctrine of Unclean hands
(1) Will not enjoin a violation of a servitude that the P previously violated
(2) If you are in violation yourself, you can’t sue another
7. Doctrine of Laches
(1) Unreasonable delay by P to enforce a servitude against a P, which causes
prejudice to the D
(2) Similar to acquiescence
8. Estoppel
a. Relies on the promise
9. Prescription
a. Adverse possession
10. Changed Conditions
(1) Question: When are conditions so changed that the covenant is no longer
enforceable?
(a) As long as the original purpose of the covenants can still be accomplished
+ substantial benefit to the restricted area, then you do not have changed
circumstances, and cannot terminate the covenant

22
 (2) Refers to the entire area surrounded by the covenants, not just the specific parcel
to see how it has changed over time
(3) Happens after they rely on the covenant
(4) The balancing of equities and the potential advantages of the new proposed uses
of the property are irrelevant
I. Common interest communities
1. Condominiums
a. Each unit is owned separately in a fee simple
b. Common areas are owned by the unit owners as TIC
(1) Exterior walls, land beneath, hallways
2. Reasonable test of the covenant
a. Applies to the whole common interest community NOT just to the individual owner
(1) If they are recorded in the master deed, they are presumed to be reasonable
unless somehow proven otherwise
b. Remember: Reasonableness test expanded to the scope of the entire community, and
anything written in the deed is presumed reasonable and is enforceable UNLESS:
(1) It is arbitrary
(a) Not related to health, safety or welfare
(2) The burden outweighs the benefits
(3) Violates fundamental public policy
3. Cooperatives
a. Mainly in NY
b. Owned by a corporation and all the residents own shares of a corporation
c. Benefits
(1) In reality, you could screen applicants
(2) They have a long-term renewable lease
d. Business judgment rule: court defers to the board’s judgment UNLESS
(1) Board acted outside the scope of its authority
(2) Board acted in a way that did not legitimately further corporate purpose
(3) Board acted in bad faith
(4) **Board decisions are almost never overturned
4. Gated communities
a. Many gated communities perform functions that are usually left to municipalities like
police and garbage disposals. So should their restrictions have to conform to the
constitution like municipalities do?

LANDLORD/TENANT LAW (NON-FREEHOLD ESTATES)

XII. LEASEHOLD ESTATES
A. Legal interest that entitles the tenant to immediate possession of designated land
B. SOF consideration: leases of over 1 year have to be in writing, but oral leases under 1 year are
okay
C. Term of years (or other time)
1. A leasehold estate that lasts for some specified fixed period of time that is either
23
 a. Fixed in advance, OR
b. Computed using a formula that is agreed to in advance
2. No notice is needed to terminate
3. Landlord death = no effect
4. Jeff transferred the farm to Tonya for a period from 7/1/06 to 7/5/06
D. Periodic Tenancy
1. Lease that lasts for successive intervals until either the landlord or tenant gives valid notice
a. Successive periods until notice of termination of the tenancy
2. Usually month to month or year to year
3. Notice is key
a. If year-to-year or more lease must give 6 months notice (never longer than 6 months
notice)
b. If less than a year-to-year lease  30 days notice from end of the period
(1) If you give notice April 15th, then the lease will not be terminated until May 30
4. Landlord death = no effect
5. Week to week, month to month, year to year leases
E. Tenancy at will
1. No fixed period and endures as long as landlord and tenant want
2. Typically need 30 days notice to terminate
a. Or the interval that you pay rent (typically 30 days though)
3. Landlord death:
a. Usually executor would be able to terminate, but depends on the writing and what the
landlord conveys
(1) Depends on what they contracted (bargained) for
(a) Why? The language of the K is binding because that is what they
bargained for
4. These leaseholds occur when you have long-holding tenants, like 15 years
F. Tenancy at Sufferance: Holdovers
1. Created when a tenant has wrongfully held over past expiration date of the lease
a. Tenant remains in possession after termination of the tenancy
2. How long does tenancy at sufferance last?
3. Landlord can either:
a. Evict the tenant and collect damages OR
b. Landlord consents to renew the tenancy for another term and tenant can stay
(1) Consent can be express of implied
(2) Tenancy resulting from holding over is usually subject to the same terms and
conditions as the original lease, unless the parties agree otherwise or unless
some term or condition is regarded as inconsistent with the new situation
(a) Usually turns it into periodic tenancy
XIII. THE LEASE
A. Leases and contract principles
1. Most courts explicitly rely on contract principles to reshape leases
B. Covenants in leases

24
 1. Whether the covenants in leases are mutually dependent depends on the writing
2. If a landlord breaches a promise to repair  the tenant’s obligation to pay rent may cease
depending on the situation
C. Is a lease a contract or conveyance?
1. Both
a. A lease transfers possessory interest in land (so it is a conveyance that creates property
rights) AND
b. Contains a number of promises or covenants
XIV. DELIVERY OF POSSESSION
A. What happens if L and T have entered into a lease to begin February 2, but when that time comes
around, a former tenant is holding over?
1. English Rule (Majority)
a. Implied covenant to deliver possession
b. In the absence of stipulations to the contrary, there is in every lease an implied
covenant on the part of the landlord that the premises shall be open to entry by the
tenant at the time fixed by the lease for the beginning of his term.
(1) Landlord has to deliver actual possession on the date of entry
(a) Why? Because Landlord has better chance to know if someone is still on
the premises, so burden is on him
(i) Very high burden on Landlord
(ii) Landlord would be responsible for any trespassers
(2) If you’re a tenant and you show up and the holdover is on the land  sue
landlord
2. American Rule
a. No implied covenant to deliver possession
b. A landlord is not bound to put the tenant in actual possession but instead is only
bound to put him in legal possession so that no superior right of possession will
prevent the tenant from gaining actual possession
(1) Cannot hold one who is clearly not at fault (landlord) responsible for the
independent tort of another (trespasser) in which:
(a) He has neither participated nor concurred AND
(b) Whose misdoings he cannot control
(2) If you’re a tenant and you show up and the holdover is on the land  sue
holdover
3. Overall, courts vary from jurisdiction to jurisdiction on whether they adopt the English or
the American Rule
XV. SELECTION OF TENANTS (Fair Housing Act)
A. Landlords are constrained in selecting tenants  cannot discriminate based on:
1. Race/color
2. Religion
3. Nationality
a. German landlords discriminating against Jews
4. Sex

25
 5. Familial status
a. Married v. unmarried; kids v. no kids
6. Handicap
a. Physical or mental impairment that substantially limits one or more major life
activities
b. Includes:
(1) Recovering drug/alcohol addicts
(2) People with serious sicknesses (Ebola, AIDS)
c. Does NOT include:
(1) Current drug users
d. Landlords must make reasonably accommodations for the disability
(1) Courts decide what is reasonable
(2) Landlord might have an argument if he can show that it poses a risk of health
and safety
B. Enforcement of the FHA
1. Don’t have to have a discriminatory motive to have an FHA violation
2. Test:
a. Disparate treatment OR
(1) You might mean well, but there is a problem
b. Proof of discriminatory impact
(1) How it affects the individual
(a) Something that indicates you are being treated differently than other
classes
(2) Burden then shifts to Landlord to prove a defense through either:
(a) Compelling government interest (commercial landlords) OR
(b) Rational business interest (private landlords)
(3) Plaintiff must then bring Evidence showing there is a less discriminatory
alternative
XVI. SUBLEASES AND ASSIGNMENTS
A. General:
1. Privity of estate (relationship/contract between people) + privity of contract (dual nature of
assignments/subleases as contracts and conveyances)
a. Privity of estate  Landlord giving Tenant part of a land. Tenant has a privity of
estate with the Landlord
2. Landlord  tenant  sublease
B. Private
1. Sublease or assignment? JD SPLIT:
a. General rule: An assignment conveys the whole, leaving no interest or reversionary
interest in the grantor or assignor
(1) Assignment Somebody assigns entire remainder of a term
(a) Completely new tenant
(i) New tenant is responsible for paying the landlord

26
 (2)Sublease Somebody assigns (gives) something less than the entire remainder
of a term
(a) Sublessees’ responsibilities are to the tenant NOT the landlord
2. Lessor/landlord may arbitrarily refuse to approve sublease/assignment
C. Commercial
1. Landlords have a right to refuse sublease/assignment
2. JD SPLIT:
a. Majority: the lessor may arbitrarily refuse to approve of a proposed assignee or
sublessor no matter how suitable the assignee appears to be and no matter how
unreasonable the lessor’s objection
(1) Assignment only with the prior consent of the lessor. They don’t have to give
reasons
b. Minority: such consent may be withheld only where the lessor has a commercially
reasonable objection to the assignment, even in the absence of a provision in the
lease stating that consent to assignment will not be unreasonably withheld
3. When is it commercially reasonable for landlord to withhold consent?
a. Financial responsibility of assignee
b. Use of the property
(1) Legality of proposed use
c. What is NOT reasonable?
(1) Denying consent based on personal taste, convenience not reasonable
(2) Desire to charge higher rent is not reasonable
(a) The lessor is already under K, can’t change the terms after the fact
XVII.TENANT DEFAULTING
A. Tenant in possession
1. Only lawfully means to dispossess a tenant who has neither abandoned nor voluntarily
surrendered but who claims possession adversely to a landlord’s claim of breach of a written
lease let courts take care of it using summary proceedings
a. Specialized proceedings for evicting tenant with only a few days notice
B. Tenant who has abandoned possession (tenant leaves and stops paying rent)
1. Test for abandonment
a. Vacate the premises without justification
b. Lack of present intent to return
(1) Express communicated intent not to return
(2) Implied property is moved out
c. Default in payment of rent
2. In case of abandonment, what duty does landlord have?
a. Duty to mitigate damages by using reasonable efforts to re-let apartment if he wants to
sue the tenant for accrued rent
b. Landlord has burden of proving to the court that he used reasonable diligence in
trying to re-let the apartment
(1) Facts relevant to this determination:
(a) The extent to which the landlord advertised the unit for rent

27
 (b) The extent to which the landlord offered or showed the unit to
prospective tenants
(c) The remaining length of the original lease term
(d) The cost of preparing the property for a new tenant
(e) The market rent for comparable units
(f) How far the terms of any replacement lease deviate from the terms of
the original lease
C. Tenant surrendering possession
1. Tenant has to offer to end a tenancy and Landlord has to accept
2. Results if accepted by landlord:
a. Terminates the lease
b. Extinguishes the lessee’s liability for future rent
(1) But not for accrued rent or for past breaches of other covenants
c. Tenant no longer bound to K
3. Either expressly or impliedly
a. Factors to consider to whether something is implied surrender and implied
acceptance of surrender:
(1) Intent
(2) Landlord gets new tenant
(3) Re-advertising
4. What can landlord do?
a. L can accept
(1) T is not liable for future rent, but is still liable for damages
(2) Acceptance can be explicit or implicit by action
b. L could sit on his hands for the duration of the lease
(1) Not an option in jurisdictions where there is a duty to mitigate damages
c. Seek and find replacement tenant
(1) Risks implicit acceptance of offer of surrender in a non-mitigate jurisdiction
(2) But still entitled to damages and unpaid rent is relevant to damages
D. Landlord security devices
1. If tenant is still in possession  the landlord may also terminate the lease and recover
possession
2. Anticipatory breach: recover damages equal to the difference between the rent reserved in
the lease for the unexpired term and the reasonable rental value of the premises for that
period
a. Some states have made it available by statute
b. Applies in the case of tenant abandonment
3. Security deposits
a. Protect the landlord in the event that a tenant defaults in rent, damages the premises, or
otherwise breaches the lease
4. Rent acceleration
a. Upon tenant’s default, all rent for the entire term is due and payable
(1) Cannot also take possession

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 (2) Comes up if tenant tries to break lease
XVIII. LANDLORD’S DUTIES
A. Implied Covenant of Quiet Enjoyment
1. Beneficial Enjoyment of use of the premises for agreed term.
2. Applies to residential and commercial
3. Not part of the lease, just implied. Can’t contract out of it.
4. Examples:
a. Failure to supply heat
b. Strong and unhealthy odors
c. Recurrent flooding
5. Such a breach gives the T the right to constructive eviction
a. Landlord has to make premises substantially suitable for the use; can’t
substantially interfere.
b. For tenant to prove substantial interference:
(1) Inform landlord
(2) Give them reasonable time to cure
(3) After giving them time to cure vacate within a reasonable period
(a) If you don’t vacate within a reasonable period, then you waive your right
to vacate
B. Constructive Eviction
1. Act or omission causing substantial interference. Terminate lease and sue OR remain in
possession and sue later
2. Landlord breaches ICQE which forces tenant to leave, so not actual eviction, but
constructive. Have to give landlord reasonable amount of time to fix problem (depends on
the circumstances).
3. Examples: no heat, clogged sewage, renting another part for lewd activities, smells/mold
4. Options:
a. Remain and sue
(1) Must provide notice AND time to cure
b. Terminate and sue
(1) Have to vacate within 3-4 weeks in addition to providing notice and time to cure
C. Partial Constructive Eviction
1. Ceiling leaks in one room
2. JD SPLIT:
a. T can withhold part of rent proportional to the unused portion OR
b. T still has to pay full rent
D. Partial Actual Eviction
1. When somehow you don’t have full access to everything (like something is blocked or a
door is locked and you don’t have a key)
a. Landlord takes back part of the premises
2. Tenant can withhold rent

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E. Implied Warranty of Habitability (IWOH)
1. Premises must be safe, clean, and fit for human habitation
a. Premises fit for basic level of human habitation
b. Factual inquiry
(1) Often if it is not up to housing codes that’s a sign that it is not meeting the
IWOH
2. Only applicable to residential leases
3. Tenant must give L notice and give L reasonable time to repair
4. To withhold rent, T must show:
a. L had notice of the previously known defect and failed to repair it
b. The defect, affecting habitability, existed during the time for which the rent was
withheld
5. Tenant remedies for breach of IWOH:
a. Remain in possession + sue for damages
(1) Need to give L notice AND
(2) Reasonable time to cure (repair)
b. Remain in possession + withhold rent (more common)
(1) Need to give L notice of the AND
(2) Reasonable time to cure (repair)
(3) Defect has to exist during the withholding
(a) Can’t just keep withholding after its been fixed because you’re mad
c. Tenant repairs + deduct costs from future rent
d. Terminate the lease + sue for damages
6. What does the landlord do when they get sued? “Retaliatory Eviction”
a. Can’t retaliate
b. Can’t raise rent/cant decrease services, cant harass tenant
c. If landlord evicts tenant within 90-180 days after being sued, it’s a rebuttable
presumption that landlord eviction was retaliatory
F. Landlord Tort Liability
1. Modern Trendà General negligence standard (reasonable care standard) applicable to
landlords under all circumstances (due to effect of IWOH)
(1) Why?? (Control and No Duty to Repair)
2. Landlord liable under CL when:
a. Concealed Latent Defects
(1) Ex: L knows roof beam is rotten but fails to warn T
b. Common Area Defects
(1) Ex: broken railing in common area of stairway
c. Negligent Repairs
(1) Ex: L carelessly repairs stairs and one of them breaks, causing T to break leg
d. Breach of Agreement to Repair
e. Defect in Premises Leased for Public Use
(1) L obligated to conduct a reasonable inspection and to repair any defects before
leasing

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XIX. TENANT’S DUTIES
A. Do not commit waste
1. Waste comes into play whenever property ownership is divided such that 2 or more people
have consecutive rights to possession (both present & future interests)
2. A tenant’s duty not to commit waste is breached if tenant makes changes that:
(1) Affect a vital and substantial portion of the premises
(2) Alters characteristic appearance of premises
(3) Affect the fundamental purpose of the premises
(4) Alters uses contemplated for premises, OR
(5) Dramatically impact the realty itself
b. Factors to consider when L sues for affirmative waste
(1) Degree of effect to use and value of the leased premises
(2) Permanence
(3) Time left on the lease
B. Usually no duty to repair
1. Normal wear and tear is usually okay
a. Unless the lease says keep it in good repair
(1) Might be found to enlarge the tenant’s obligations
(2) However, repair does NOT mean rebuild
2. T’s duty to repair has generally shifting to L because of IWOH
a. Why? Because landlords, NOT tenants, are generally in the best position to maintain
the property
b. Seldom extends to commercial leases
C. Problems with affordable housing
1. Rent controls
a. Rent regulation = counterproductive
b. Residential rent regulation makes economic sense IF AND ONLY IF two conditions
occur simultaneously in the market and are BOTH expected to last for some time
(1) Demand for rental units must rise sharply at the same time that
(2) New construction of such units has been legally restricted in order to conserve
resources
(3) When would this occur?
(a) During wartimes
c. The more intrusive an ordinance is upon the market conditions  more likely it is to
cause dislocations in a housing market
d. Rent controls and government housing programs both sometimes take advantage or
people who cannot pay

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