PROPERTY LAW

1. Property Law

2. THE APPROACH
 When approaching a property question, what 2
broad areas should you consider?

3. Approach
 Step 1: Rights in land
a. Possessory interest
b. Rights incidental to
ownership in land
c. Rights to use another’s Land
Step 2: Real Estate Transactions
Conveyance & Mortgages

4. Rights in Land
 There are 5 types of possessory interests
1) Present Estates
2) Concurrent Estates
3) Future Interests
4) Landlord/ Tenant
5) Taking of Possessory Interest

5. Possessory Interests: Present
Estates
 Fee Simple Absolute
 Defeasible Estates
a) Fee Simple Determinable
b) Fee Simple Subject to Condition Subsequent
C) Fee Simple Subject to Executor Limitations
 Life Estates

6. Fee Simple Absolute
 Definition: A fee simple absolute is the broadest
estate possible, with absolute ownership of an
undivided interest for an unlimited period of time
 Rule: property held in fee simple absolute can be
freely divided, sold, bequeathed or inherited.
(freely devisable, descendible and alienable)

7. Defeasible Estates
 Definition: Defeasible estates are estates that are
subject to termination upon the occurrence of a
specified event

8. 3 Types of Defeasible Estates
 Fee Simple Determinable
 Fee Simple Subject to Condition Subsequent
 Fee Simple Subject to Executory Limitations
 Defeasible estates are freely transferable. It can
be divided, sold, bequeathed, or inherited subject
to stated condition or event

9. Defeasible Estates:
Fee Simple Determinable
 Definition: a fee simple determinable is a
defeasible estate that will automatically terminate
upon a stated event or violation and revert back
to the grantor or his successors in “fee simple
absolute”.

10. Defeasible Estates:
Fee Simple Subject to Condition Subsequent
 Definition: A fee simple subject to condition
subsequent is a defeasible estate that upon the event
of a certain stated event or violation, it may be
terminated by the grantor. The Grantor retains the
right of entry to regain his land, but must make an
affirmative action in order to do so.
 Forteiture is not automatic

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

12. Fee Simple Subject to Executory
interests
 BAR TIP: on the exam, look for :
“to X and her heirs, but if Z happens, then to Y”
(shifting)
Or
“To X, if and when Z happens” (Springing)

13. Life Estate
 Definition: A life estate is an interest in land
measured by the life of the grantee
 Rule: upon the death of the life tenant, the
interest automatically reverts to the grantor
(reversion) or shifts to a third party (remainder)
 “O conveys blackacre to A for Life and then to A’s
heirs in fee simple”

14. Possessory Interests
concurrent estates
 Tenancy in common
 Joint Tenancy
 Tenancy by the entirety

15. Possessory Interests
Tenancy in Common
 Definition: A tenancy in common is a concurrent
estate in which the cotenants own a separate and
distinct share of the property
 Rule: each cotenant owns an individual part of
the whole, but each has a right to possess and
enjoy the whole

16. Possessory Interests
Tenancy in Common
 Please note:
1. Each cotenants interest is descendible, divisible and
alienable
2. Wrongful ouster occurs when one cotenant, wrongfully
excludes another from possession of the whole, or any
part of the whole
3. Upon death of a cotenant, her interest descends to her
heirs [no right to survivorship]
4. Cotenants must not commit waste

17. Joint tenancy
 Definition: A joint tenancy is a concurrent estate in
which each tenant owns an undivided interest in the
whole estate.
 Rule: Each cotenant owns an undivided interest in the
estate with the right of survivorship. Upon the death of
one of the joint tenants, the decedents share passes
automatically to the surviving joint tenant
 Each joint tenants interest is alienable only.

18. How is a joint tenancy created?
 Rule: 4 requirements
1. Unity of time (interest must vest at the same time)
2. Unity of title (interest must be done by the same
instrument)
3. Unity of interests (interest must be identical)
4. Unity of Possession (interest must allow for all to
equally enjoy the whole)

19. Severing of a Joint Tenancy
 Can be severed by either :
1. Sale
2. Partition
3. Mortgage

20. Severance of Joint Tenancy
SALE
 Rule: A joint tenant can sell or transfer her
interest during his life time with or without the
cotenants knowledge or consent. However, the
sale severs the joint tenancy as to the sellers
interest, and the buyer takes the interest as a
tenant in common.

21. Severance of Joint Tenancy
Partition
 Rule: A joint tenancy may be partitioned by:
1) Voluntary agreement, OR
2) Court order
a. The court can divide the property between the
joint tenants OR
b. Force the sale of the property and divide the
proceeds among tenants

22. Severance of a joint tenancy
Mortgage
 Majority Rule: (Lien Theory) = a joint tenants
execution of a mortgage on his interest in the joint
tenancy does not sever the joint tenancy
 Minority Rule: (Title Theory) = a joint tenants
execution of a mortgage on his share will sever
the joint tenancy, but as to the encumbered share
only.

23. Tenancy by the Entirety
Definition: A tenancy by the entirety
Is a joint tenancy between husband
And wife that automatically arises
When property is conveyed to both of them
Rule: Each spouse has the right of survivorship
In the property, which cannot be defeated
Through one spouses unilateral conveyance
Of her share to a third party. Upon the death of
One spouse, the decedents share passes
Automatically to the surviving spouse.
Creditors CANNOT attach interests held in tenancy by
The entirety of only one spouse

24. FUTURE INTERESTS
 In grantor:
1. Possibility of reverter
2. Possibility of reentry
3. Reversion
In Grantee/Third party
1. Remainders
absolutely vested remainders
Vested remainder subject to open
Vested remainder subject to divestment
Contingent remainders
2. Executory Interests
shifting executory interests
Springing executory interests

25. Possibility of Reverter
 The possibility of reverter is a future interest that
arises in the grantor
 Rule: if a condition stated in the conveyance of a
fee simple determinable is breached, the
possibility of reverter becomes a possessory
interest of the estate

26. Right of Reentry
 Definition: The right of reentry is a future interest held by
the grantor that provides her the right to terminate a fee
simple subject to a condition subsequent.
 Rule: When conveying a fee simple subject to condition
subsequent, a grantor must expressly reserve the right
to terminate and reenter the land upon occurrence of
specified event or violation therein.

27. Reversion
 Definition: a reversion is the estate retained by a
grantor who has conveyed a lesser estate than she
owns
 Rule: a reversion is automatically created upon the
grantors conveyance of a lesser estate than she owns
 Life estates, invalid attempts to convey a remainder to
the grantors heirs

28. Remainder
 A remainder is a future interest in a third person that can become
a present possessory interest only after the natural expiration of
the preceding estate
 Rule: A valid remainder must be created in the same instrument
as the prior estate that it follows AND
Must become part a present possessory interest immediately
upon termination of the prior estate

29. 2 Classifications of Remainders
 Vested Remainders
- Those who are already born and identified by
name
 Contingent remainders
- those who are not yet born

30. Important Doctrines in regard to
future interests
1. The Rule of destructibility of
2. The rule in Shelley’s Case
3. contingent remainders
4. The Doctrine of Worthier Title
5. The Rule Against Restraints on Alienation
6. The Rule against perpetuities

31. Destructibility of Contingent
Remainders
 Common Law: a contingent remainder is
destroyed if it fails to vest before or at the time
the preceding estate terminated. When this
happens the grantors heirs take a fee simple
through reversion
 Modern Law: this doctrine is abolished.

32. The Rule In Shelley’s Case
 The rule in Shelley’s case states that if one
document creates both a freehold estate in a
person and a remainder in that persons heirs, the
grantee takes both the freehold estate and the
remainder
 The rule in Shelley’s case has been abolished in
most states

33. Doctrine of Worthier Title
 Rule: under the doctrine of worthier title, an
attempted remainder in the Grantors heirs is
invalid and becomes a reversion in the grantor
 O conveys to A and his heirs AND THEN the heirs
convey to Z = can’t do it

34. Restraints on Alienation
 Disabling restraint = seeks to make any
attempted transfer of an estate void
 Forfeiture Restraint = provides that the grantor
may terminate the estate if transfer is attempted
 Promissory Restraint = is the grantee’s promise
not to transfer the estate

35. Rules Against Restraints on
Alienation
 Rule: absolute restraints on fee simple estates are void.
 Exceptions:
1. Forfeiture and promissory restraints of life estates
2. Forfeiture restraints on transferability of future interests
3. Rights of first refusal
4. Restrictions on assignments and subleasing

36. Rules Against Perpetuities
 No interest in property is valid unless it must vest, if at
all, no later than 21 years after some life in being at the
creation of the interest.
 Applies to:
1. Contingent remainders
2. Executory interests
3. Class Gifts
4. Rights of first refusal

37. Rights and Responsibilities of present and future
interest holders
 The law of waste
1. Affirmative waste
2. Permissive waste
3. Ameliorative Waste
4. The law of fixtures

38. Law of Waste
 When more than one person holds an interest in
land, the holder of the present interest is entitled
to the ordinary uses and profits of the land, but
cannot do anything that injures the interests of
the future interest holder.

39. 3 types of waste
 Affirmative waste (voluntary) = harm or decrease in
the value of the estate resulting from the present
interest holders intentional conduct
 Permissive waste = harm to the property caused by
the present interest holders failure to exercise
reasonable care to protect the estate
 Ameliorative waste = a physical change that
economically benefits the land but is
UNAUTHORIZED by the future interest holder

40. The Law of Fixtures
 Fixtures pass with the ownership of land and the
removal of fixtures constitutes voluntary waste
 If the present interest holder has installed
something himself and removes this, it is not
waste

41. Possessory Interest: Leaseholds
Non Free Hold Estates
 Definition: A leasehold , also known as a non
freehold estate, is an interest in land that permits
the interest holder to hold or use property for a
period of time
 There are four types of leaseholds
1. Tenancy for years
2. Periodic Tenancy
3. Tenancy at will
4. Tenancy at sufferance

42. Tenancy For Years
 Definition: A tenancy for years is a tenancy that
lasts for a fixed period of time. [ a set start and
end date]
 It is created by an explicit agreement between the
parties
 It will end without notice on the expressed end
date unless the parties agree to extend the date.
 The statute of frauds applies to this if it is longer
than a year.

43. Periodic Tenancy
 Definition: a periodic tenancy is a lease that
continues for intervals with no fixe termination
date
 Rule: A periodic tenancy may be created by:
a. Express agreement ( month to month/year to
year etc)
b. Implied agreement (setting payment for rent at
fixed
intervals OR
c. Operation of Law: (accepting payment from a
holdover)

44. Tenancy At Will
 Definition: a tenancy at will is a lease that can be
terminated at the whim of either party
 No notice is required
 Any party can terminate this at will

45. Tenancy at Sufferance
 A tenancy at sufferance is created with a tenant
wrongfully retains possession of property beyond
the expiration of the lease.
 Rule: When a tenant retains possession beyond
the termination of a leasehold estate, the tenant
is deemed to hold a tenancy at sufferance

46. Tenants Duties
 Duty to pay rent
 Duty not to commit Waste
 Duty to Repair
 Duty to Inform

47. Land lords remedies
 A landlords remedies if a tenant breaches the duty to pay
rent depend upon whether the tenant remains in
possession of or abandons the property
1. Tenant remains in possession of property = landlord
may:
a. file for a writ of ejectment (tenant becomes a tenant at
sufferance until he vacates)
b. Landlord can sue the tenant for back rent owed
2. If the tenant abandons the property = the landlord can:
a. accept the tenants abandonment as an implicit offer of
surrender
b. hold the tenant responsible for unpaid rent
c. lease the property out and hold the tenant liable for
the difference between the rent owed and the rent
received from the new tenant

48. Duty to repair
 Under common law: tenant had the duty to make
repairs automatically in leaseholds unless
specified otherwise
 Under modern law- the burden shifts to the
landlord under the implied warranty of habitability

49. Landlords duties and tenants
rights
 Landlord has a duty to uphold the implied warranty of
habitability
 Landlord has a duty to uphold the Implied covenant of
quiet enjoyment
 Duty to deliver possession
 Tenants remedies for landlords breach
* Move out and terminate the lease
* Make the reasonable repairs and deduct cost from
rent
* Reduce or withhold rent payments until the court
determines the fair rental value of the property OR
* Continue to pay rent and sue the landlord for
damages

50. Implied Covenant of Quiet Enjoyment
 Rule: Every lease contains an implied covenant
of quiet enjoyment in which a landlord promises
not to interfere with a tenants possession of the
property
 The right can be violated in two main ways:
1) By claims of paramount title OR
2) By acts of landlord or persons claiming under
him which interfere with the tenants
possession or use of the premises

51. Constructive Eviction
 Under the law, if the tenant ‘s claim is merely that
his use or enjoyment of the property has been
substantially impaired, the eviction is constructive
 The tenant is responsible for paying rent unless
he abandons the property

52. Implied Warranty of Habitability
 Under the law, all courts agree that the existence
of a building code violation is at least evidence of
uninhabitability; however most courts require that
to prove uninhabitability, the tenant must show
that the conditions not only violate the building
code, but are also a substantial threat to T’s
health or safety.

53. Tenant Remedies for breach of
Implied Warranty of Habitability
Tenant Can:
 Terminate the lease
 Withhold paying rent
 Use the rent money to repair the problems

54. Easements
 Under the law, an easement is a privilege to use the land of another and must be
in writing.
 AFFIRMATIVE EASEMENT
 An affirmative easement is one entitling its holder to do a physical act on another
‘s land

 NEGATIVE EASEMENT
 A negative easement is own which establishes its holder to prevent the owner of
land from making certain uses of that land (these are very rare)

 APPURTENANT
 An easement appurtenant is one which benefits the holder in the use of a certain
piece of land and must be tied to that specific piece of land. (dominant tenement)

 EASEMENT IN GROSS
 An easement in gross is one whose benefit is not tied to any particular parcel

 PROFIT A PRENDRE
 A profit is the right to go onto the land of another to remove the soil or a product
of it

55. Creation of Easements
 Under the law an easement may be created in 4 ways: (1) by express grant; (2) by
implication; (3) by strict necessity; and (4) by prescription
 EXPRESS CREATION
 If a easement is created by a deed or will, it is expressed
 IMPLICATION CREATION
 An easement by implication has three requirements: (1) the land must be divided up or
severed; (2) the use for which the implied easement is claimed must have existed prior to the
severance and (3) the easement must be at least reasonably necessary to the enjoyment of
the dominant tenant. The implied easement will only exist where the owner of a parcel sells
part and retains part, or sells pieces simultaneously to more than one grantee.
 EASEMENT BY NECESSITY
 The courts will find an easement by necessity if two parcels are so situated that an
easement over one is strictly necessary to the enjoyment of the other.
 EASEMENTS BY PRESCRIPTION
 An easement by prescription is one that is gained under principles of adverse possession. If
a person uses another’s land for more than the statute of limitations period governing
ejectment actions he gains an easement by prescription.

56. Covenant Running With The
Land
 COVENANTS RUNNING WITH THE LAND
 Under the law, a covenant running with the land is
simply a contract between the two parties which,
because it meets certain technical requirements
has the additional quality that is binding against
one who later buys the promisor land and or
enforceable by one whom later buys the promisor
land.

57. Equitable Servitude
 EQUITABLE SERVITUDE
When the court gives equitable relief and applies
it against an assignee of the original promisor, the
promise is referred to as an equitable servitude.

58. The Taking Clause
THE TAKING CLAUSE
 Under the law of eminent domain, state and federal governments may
take private property for public use. However, the 5th amendment to the
U.S Constitution provides that private property [shall not] be taken for
public use without just compensation. The taking clause is made
binding to all of the states through the 14th amendment. This must be a
taking not a regulating in order to be violated.
Elements:
 Must be substantial advancement of legitimate state interests
 Must be a fairly tight fit between the state interest being promoted and
the regulation chosen
 Must be more than just a mere rational relation” between means and
end (Tight means – end fit)
 If the government (state or federal) makes or authorizes a permanent
physical occupation of the property, this will automatically be found to
constitute a taking.
 *Diminution in value - the more drastic the reduction in value of the
owners property, the more likely a taking is to be found.

59. Damages for Temporary Taking
 DAMAGES FOR TEMPORARY TAKING
 Inverse condemnation: if a land use regulation is
so broad that it constitutes a taking, the owner
may bring an inverse condemnation suit

60. ZONING
 ZONING
 Generally, zoning is done on the local, municipal
level
 The municipality power comes from the state
police power or power to act in the general
welfare
 Use Zoning: most common form of zoning – it is
divided into districts where each district can only
be used for a certain purpose (residential,
business, etc)
 Density controls: govern the density of
population or construction; a towns minimum lot
size per single family, minimum setbacks
requirements, minimum square footage for

61. LIMITS ON ZONING
LIMITS ON ZONING
 Taking Clause
 Procedural due process – 14th amendment and 5th
amendment – land owner is entitled to an
administrative hearing
 Substantive due process – if the zoning law fails to
bear a rational relation to a permissible state
objective, it may violate the substantive aspect of the
Due Process Clause
 Equal protection: a zoning law that is adopted for
the purpose of excluding racial minorities will trigger a
strict judicial scrutiny, and will probably be found to be
a violation of the equal protection clause of the 14th
amendment

62. Administrative Zoning
 ADMINISTRATIVE ZONING
 Bodies involved: Town council - the zoning code is
enacted by the municipal legislature
 Board of zoning appeals – a board of adjustment –
or a board of zoning appeals usually exists towards
variances and to hear appeals from the building
department’s enforcement of the zoning laws.
 Planning or zoning commission - the town council
generally appoints a planning commission or zoning
commission. The commission advises the town
council on (but does not independently determine )
the contents of the zoning code

63. VARIANCES
 VARIANCES
 Virtually all zoning ordinances have a provision
for granting variances – (relief in a particular case
from the enforcement of an ordinance)
 Requirements for variances: (1) denial would
result in unnecessary hardship; (2) the need for
the variance is caused by a problem unique to the
owners lot; and (3) the variance would not be
inconsistent with the overall purpose of the
ordinance, or inconsistent with the general
welfare of the people

64. Special Uses, Conditional Zoning
and Non Conforming Uses
 SPECIAL USES – permits are usually granted for churches, private
schools, hospitals (usually done in regards to a hardship of some kind
 CONDITIONAL ZONING - many ordinances provide for conditional
zoning - under this device the rezoning of a particular parcel is made
subject to the developers promise to comply with certain conditions,
which will protect neighbors.
 NON CONFORMING USES: When a zoning ordinance is enacted or
made more stringent, the pre existing uses that are now banned by the
ordinance are called non conforming uses – Virtually all ordinances
either (1) grant a non conforming user in a substantial period within
which he may continue his use; or (2) let him continue that use
indefinitely.
 Constitutional law issues : it would likely be a violation of an owners
due process or other constitutional rights for him not to be given at least
a substantial period within which to phase out the non conforming
issues

65. Exclusionary Zoning
 used to exclude certain types of persons and
uses , particularly racial and ethnic minorities and
low income persons
 Can be fought with the Equal Protection Law and
or
 Federal Statutory regulations and or
 State Case Law

66. Land Sale Contracts, Deeds
Mortgages
 Must satisfy the statute of frauds
 Part performance exception to the SOF for the
land sale contracts, under the doctrine of part
performance, a party either the buyer or the
seller, who has taken action in reliance on the
contract may be able to gain at lease limited
enforcement of it.
 Law Students Remember to review tort law
“landowners” for all of the details

67. Mortgages and Installment Contracts
 A mortgage is a financing arrangement in which
the person buying the property (or one who
already owns the property) receives a loan, and
the property is pledged as a security to guarantee
repayment of the loan.
 A mortgage has two documents that go with it :
(1) the NOTE or BOND and (2) the mortgage
itself.
 INSTALLMENT CONTRACTS: where a buyer
makes a down payment on a piece of property
and then makes monthly installment payments
on the property

68. DEEDS
 The deed is the document which acts to pass title from the grantor to
the grantee
 Merger: Under the doctrine of merger, most obligations imposed by the
contract of sale are discharged unless they are repeated in the deed.
 Quitclaim deed: the grantor makes no covenant that his title is good (
he merely passes on to the grantee whatever title he has
 Warranty deed: the grantor makes one or more promises about the
state of his title
 Grantor must sign the deed, the grantee need not sign the deed
 Deed must be witnessed by one or more persons or Notarized
 Delivery of deed is required in order for the deed to be valid
 Deed must describe the property either by (1) Metes and bounds
(boundary lines where the property starts and ends) ; (2) Government
survey - land is divided in 6 mile square tracts called townships; each
town ship is divided into 36 one mile square tracts called sections, each
section contains about 640 acres, each of which can be directly referred
to; OR (3) Plat – which relies on the recording of a map or plat of
property by a developer in which the plat shows the location of
individual lots
 Once the delivery occurs the title passes immediately to the
grantee.

69. Water Rights
 Drainage: courts are split as to the rights of an owner
to drain surface water from his property onto the
property of another. In general courts are moving to a
rule that an owner may do this only If his conduct is
reasonable under all circumstances
 Streams and Lakes: States are sharply split as to
when and how the landowner may make use water
front lakes and streams that abut his property –
usually each riparian party can use what they need to
gain beneficial use of the water (under common law).
 Ground Water – in most American states a land
owner may make only reasonable use of ground
water drawn from under his property. The land owner
cannot divert this water to other properties which he
may own.

70. AIR RIGHTS
 DIRECT OVER FLIGHTS: when airports permit flights to
occur directly over an owner’s property and within
immediate reaches of property owners land, the property
owner can sue the airport for trespass or Nuisance if the
flight is adjacent to landowners property.
 Tall buildings: A land owner has the right to build a
building as tall as he wishes as long as it is in accordance
with the zoning requirements for that location.
 RIGHT TO SUNLIGHT – a landowner has no right to
sunlight, for example an owner almost never acquires
and easement of light and air – by implication or even by
necessity. So if A and B are adjoining owners, B can
without liability build a building in such a way that blocks
A’s sunlight. (BUT if A uses that sunlight for solar energy,
A can possibly claim Nuisance against B for blocking
energy sources needed to sustain the power of A’s
building.

71. REVIEW OF BASIC TERMS
 FEE SIMPLE ABSOLUTE
 Under the law, a fee simple absolute is the longest and most unrestricted estate. A fee
simple Absolute is inheritable under intestacy statutes.

 FEE SIMPLE DEFEASIBLE
 Under the law, a fee simple defeasible is the type of fee simple that will terminate upon the
happening of a stated event or the failure of the stated event. There are three types of fee
simple defeasibles: (1) the fee simple determinable; (2) the fee simple subject to condition
subsequent and (3) the fee simple subject to an executory interest.

 FEE SIMPLE DETERMINABLE
 Under the law, a fee simple determinable is the type of fee simple that may last indefinitely,
but will terminate upon the happening of a specified event or could terminate upon the failure
of a specified event. Upon the occurrence of the event or lack thereof, the property will
automatically revert back to the grantor (possibility of reverter) or to his successors
(remainders).

 FEE SIMPLE SUBJECT TO CONDITION SUBSEQUENT
 Under the law, a fee simple subject to condition subsequent is the type of fee simple that may
last indefinitely, but will terminate upon the happening of a specified event or could terminate
upon the failure of a specified event. Upon the happening or failure of occurrence of the
stated event the land will not automatically revert back to the grantor. Rather the grantor
holds the right of re-entry and must take an affirmative action to regain the property.

72. REVIEW OF TERMS 2
 FEE SIMPLE SUBJECT TO AN EXECUTORY LIMITATION
 Under the law, a fee simple subject to an executory limitation
provides for the estate to pass to a third person (one other than
the grantor) upon the happening of a stated event.

 THE FEE TAIL
 Under common law, the fee tail allows the owner of land to
ensure that the property remains within his family. Modernly, a
fee tail is simply converted by statute to a fee simple absolute.

 THE LIFE ESTATE
 Under the law, a life estate is an interest which lasts for the
lifetime of a person and is measured by the life of the grantor. A
life estate Per Autrie vie is a life estate measured by the life of
one other than the grantor

73. REVIEW OF TERMS 3
 THE RULE IN SHELLEY’S CASE
 Under the law, The Rule In Shelley’s Case provides: if a will or
conveyance creates a free hold in A, purports to create a remainder in
A’s heirs, and the estates are both legal or both equitable, the remainder
becomes a remainder in A. A usually ends up getting fee simple.
 DOCTRINE OF WORTHIER TITLE
 Under the law, one cannot, either by conveyance or will, give a
remainder to one’s own heirs.

 THE STATUTE OF USES AND EXECUTORY INTERESTS
 Under the law, the statute of uses provides that any equitable estate is
converted into the corresponding legal estate. Modernly, the statute of
uses makes possible modern Shifting executory interests.

 THE RULE AGAINST PERPETUITIES
 Under the law, No interest is good unless it must vest, if at all, not later
than 21 years after some life in being at the creation of the interest

74. REVIEW TERMS 4
 EQUITABLE CONVERSION
 Under the law, where there is a specifically enforceable contract for the sale of land, the
buyer holds equitable title to the land and the seller holds legal title in trust for the buyer. A
majority of states place the risk of loss for damage or destruction to the property on the
buyer. The minority, including California, places the risk on the seller. If however the land
sale contract contains a provision that states a risk of loss, the contract is controlling.

 JOINT TENANCY
 Under the law, a joint tenancy is where two or more people own a single, unified interest in
real or personal property. Additionally, each joint tenant has the right of survivorship, each
joint tenant is entitled to occupy the entire premises and each joint tenant has the right to an
equal share of the property.

 TENANCY IN COMMON
 Under the law, a tenancy in common is where two or more people have a separate and
undivided interest in real or personal property. Additionally, there is no right of survivorship
between tenants in common and each tenant in common has unequal shares of the property
interest unless there is a rebuttable presumption of equality.

 TENANCY BY ENTIRETY
 Under common law, any conveyance to two or more persons who were husband and wife
resulted automatically in a tenancy by the entirety. Additionally, the tenancy by entirety is not
subject to severance and is only terminated upon divorce.

75. REVIEW TERMS 5
 RELATIONS BY CO-TENANTS
 Regardless of the form of the co-tenancy, each co
tenant has the right to occupy the entire premise
unless there is an agreement stating otherwise.
Additionally, if the property is solely occupied by
one of the co-tenants, he normally has no duty to
account for the value of his exclusive possession
unless the occupying tenant has ousted the other
tenant or there is depletion in the land.

76. REVIEW OF TERMS 6
 THERE ARE FOUR TYPES OF LANDLORD
TENANT RELATIONSHIPS
 (1) THE TENANCY FOR YEARS; (2) THE
PERIODIC TENANCY; (3) THE TENANCY AT
WILL; AND (4) THE TENANCY AT
SUFFERANCE.
 UNDER COMMON LAW ANY CONTRACT FOR
LONGER THAN 3 YEARS NEEDS TO BE IN
WRITING
 MODERNLY, ANY CONTRACT FOR ONE YEAR
OR LONGER MUST BE IN WRITING TO MEET
THE STATUTE OF FRAUD REQUIREMENTS

77. REVIEW OF TERMS 7
 THE TENANCY FOR YEARS
 Under the law, most leases are considered tenancy for years which is an estate which is for a
fixed period of time. There is a fixed start date and a fixed end date upon which the estate
will terminate without warning.

 THE PERIODIC TENANCY
 Under the law, the periodic tenancy is one which continues from one period to the next
automatically, unless either party terminates it at the end of a period by notice. Under
common law the terminating party had to give a 6 month notice for a year to year contract.
Modernly, the requirement is 30 days.

 THE TENANCY AT WILL
 Under the law, a tenancy at will is a tenancy which has no stated duration and which may be
terminated by either part at any time without giving any notice

 THE TENANCY AT SUFFERANCE
 Under the law, there is only one situation where the tenancy at sufferance exists and this is
where a tenant holds over at the end of the lease giving the landlord the option to: (1) evict
the tenant; or (2) hold the tenant to another term creating a periodic tenancy and notice to
terminate will have to be given.

78. REVIEW OF TERMS 8
 TENANTS RIGHT OF POSSESSION
 The American view is that the landlord only has a
duty to deliver legal possession and not actual
possession
 The English view is that the landlord DOES have
the duty to deliver actual possession. T has the
right to terminate the lease and recover damages
for the breach if the prior tenant holds over and
the landlord does not oust him. OR T can
continue to lease and get damages for the period
until the prior tenant is removed.

79. END OF PROPERTY LAW
 THIS IS A “BRIEF” OF PROPERTY LAW
TERMS AND DEFINITIONS AS WELL AS SOME
OF THE RULES
 IT IS GENERALLY BASED ON COMMON LAW
AS IT IS INTENDED FOR THOSE WHO WANT
TO LEARN THE LAW OF THE LAND
 FOR MORE IN DEPTH LAWS, PLEASE SEEK
OUT YOUR STATE PROPERTY LAW STATUTES
WHICH ARE BASED ON WHAT YOU HAVE
JUST READ
 SOURCE: Emanuel, S.L (2004) Property Law
Aspen Publishers, NY