Juris Doctor (JD) Property and Real Estate Transactions Syllabus

List the four leasehold (nonfreehold) estates.

Tenancy for years (fixed term, ends automatically); periodic tenancy (renews until proper notice); tenancy at will (no fixed period, terminable by either party); tenancy at sufferance (holdover tenant wrongfully remaining).

What notice is required to terminate a periodic tenancy at common law?

Notice equal to one full period (e.g., one month for a month-to-month), but a year-to-year tenancy requires only six months' notice. Termination must be effective at the end of a period.

What is the implied warranty of habitability and how does it differ from the covenant of quiet enjoyment?

Habitability (residential, non-waivable) requires the premises be fit for human habitation; tenant may withhold rent, repair-and-deduct, or terminate. Quiet enjoyment protects against actual or constructive eviction (substantial interference by the landlord).

What is constructive eviction and its elements?

Landlord's breach substantially interferes with use/enjoyment. Elements: (1) substantial interference attributable to landlord, (2) tenant gives notice and landlord fails to fix, and (3) tenant vacates within a reasonable time.

Distinguish an assignment from a sublease.

An assignment transfers the tenant's entire remaining interest (assignee in privity of estate with landlord). A sublease transfers less than the entire remaining term (subtenant has no privity with landlord); the original tenant retains a reversion.

What is an easement appurtenant versus an easement in gross?

Appurtenant benefits a particular parcel (dominant tenement) and burdens another (servient tenement); it runs with the land. In gross benefits a person/entity, not land (e.g., utility line); commercial easements in gross are transferable.

Name the ways an easement can be created.

Express grant or reservation (writing, Statute of Frauds), implication (from prior existing use / quasi-easement), necessity (landlocked parcel from common owner), and prescription (adverse, like adverse possession).

What are the elements of an easement by prescription?

Use that is Open and notorious, Continuous for the statutory period, Hostile (without permission), and Actual. (Notably exclusivity is generally not required, unlike adverse possession.)

What is an easement by necessity and when does it end?

Arises when a parcel is landlocked because a common owner severed it from access to a public road; strict necessity at severance is required. It terminates when the necessity ends (e.g., alternative access becomes available).

List ways an easement can terminate.

Release (writing), merger (unity of dominant and servient ownership), abandonment (affirmative act showing intent), end of necessity, prescription against it, estoppel, condemnation, and destruction of the servient estate.

What must a covenant satisfy to run with the land at law (real covenant)?

For the burden to run: writing, intent to bind successors, touch and concern the land, horizontal and vertical privity, and notice to the burdened party. For the benefit to run: writing, intent, touch and concern, and vertical privity.

How does an equitable servitude differ from a real covenant in requirements and remedy?

An equitable servitude requires writing (or common scheme), intent, touch and concern, and notice—but NOT privity. The remedy is injunctive relief, whereas a real covenant yields money damages.

What is the implied reciprocal negative servitude (common scheme doctrine)?

In a subdivision developed under a common plan of restrictions, restrictions can be enforced against lots not expressly burdened in their deeds, provided there is a common scheme and the buyer had actual, record, or inquiry notice.

What is the constitutional basis and standard for zoning regulation?

Zoning is a valid exercise of the state's police power (Village of Euclid v. Ambler Realty). It is upheld if it bears a rational relationship to public health, safety, morals, or general welfare.

What is a nonconforming use in zoning law?

A use existing lawfully before a new zoning ordinance that is now prohibited; it may continue (it cannot be eliminated immediately without compensation as a taking) but generally cannot be expanded; amortization provisions may phase it out.

Distinguish a zoning variance from a special use permit.

A variance permits a use/structure that deviates from the ordinance, granted upon a showing of unnecessary hardship (area) or undue hardship not self-created. A special (conditional) use permit allows a use the ordinance expressly permits subject to conditions.

What is a regulatory taking, and what is the Lucas categorical rule?

A regulation may so restrict property as to require just compensation. Under Lucas v. South Carolina Coastal Council, a regulation denying ALL economically beneficial use is a per se taking unless justified by background principles of nuisance/property law.

What are the five elements of a valid land sale contract under the Statute of Frauds?

A writing signed by the party to be charged, identifying the parties, describing the property, stating the price (or means to determine it). Exception: part performance (some combination of possession, payment, and improvements).

What is the doctrine of equitable conversion?

Once a land sale contract is signed, equity treats the buyer as the owner (holding equitable title) and the seller as holding legal title in trust/as security. It governs risk of loss in many states (risk on buyer) absent contrary agreement (or UVPRA).

What is the implied covenant of marketable title?

Every land sale contract implies the seller will deliver title free from reasonable doubt—no significant encumbrances, defects in the chain, or title acquired solely by adverse possession (unless quieted). Buyer must notify and allow time to cure before closing.

What is the doctrine of merger in real estate contracts?

At closing, the contract obligations merge into the deed; the buyer can thereafter sue generally only on the deed's covenants (or for fraud), not on the contract terms (subject to modern exceptions for collateral promises).

What are the formal requirements for a valid deed?

A writing satisfying the Statute of Frauds, identification of grantor and grantee, words of conveyance, an adequate description of the land, and the grantor's signature. Consideration is not required to make the deed valid between the parties.

What are the requirements for valid delivery and acceptance of a deed?

Delivery requires the grantor's present intent to make the deed immediately effective (physical transfer not essential; intent controls). Acceptance by the grantee is presumed if the conveyance is beneficial.

Compare a general warranty deed, special warranty deed, and quitclaim deed.

General warranty deed covenants against all title defects, including those before the grantor owned it. Special (limited) warranty deed covenants only against defects arising during the grantor's ownership. Quitclaim deed makes no covenants—conveys only whatever the grantor has.

Name the six covenants of title and divide them into present and future covenants.

Present (breached, if at all, at conveyance; do not run): seisin, right to convey, against encumbrances. Future (breached upon later disturbance; run with land): quiet enjoyment, warranty, further assurances.

Explain the three types of recording acts and their priority rules.

Race: first to record wins. Notice: a subsequent bona fide purchaser (BFP) without notice wins regardless of recording. Race-notice: a subsequent BFP without notice who records first wins.

What are the three forms of notice under recording acts?

Actual notice (real knowledge); record/constructive notice (a properly recorded instrument in the chain of title); and inquiry notice (facts—like possession or a reference in a recorded deed—that would prompt a reasonable inquiry).

What is a bona fide purchaser (BFP) for recording-act purposes?

A person who takes for valuable consideration and without notice (actual, record, or inquiry) of the prior interest. Donees, heirs, and devisees do not qualify because they give no value.

What is the shelter rule under recording acts?

A person who takes from a bona fide purchaser receives the same protected status as the BFP, even if that person otherwise had notice—so as not to limit the BFP's ability to transfer good title.

Distinguish a wild deed and a chain-of-title problem.

A wild deed is a recorded instrument outside the chain of title (e.g., recorded before the grantor acquired title, or from a grantor not connected by the index). It does not give constructive notice because a searcher cannot find it.

What is the difference between title theory and lien theory of mortgages?

Title theory: lender holds legal title until the debt is paid (a mortgage can sever a joint tenancy). Lien theory (majority): borrower retains title and the lender holds only a security lien (a mortgage does not sever a joint tenancy).

What is the equity of redemption versus statutory redemption?

Equity of redemption: before foreclosure sale, the mortgagor may redeem by paying the full debt (plus interest/costs); it cannot be waived in the mortgage ('clogging' the equity is prohibited). Statutory redemption: in some states, the mortgagor may redeem for a set period AFTER the foreclosure sale.

In a foreclosure sale, how are competing mortgage interests treated as to priority and survival?

Proceeds pay interests in order of priority (generally by recording date). Foreclosure of a senior mortgage wipes out junior interests; foreclosing a junior interest leaves senior liens on the property. Purchase-money mortgages take priority over earlier-recorded liens against the buyer.

What are the elements of adverse possession?

Possession that is Open and notorious, Continuous for the statutory period, Hostile (without owner's permission), Actual, and Exclusive (OCHAE). Some states also require payment of taxes or good-faith/color of title.

What is tacking, and what does it require in adverse possession?

An adverse possessor may add a predecessor's possession period to satisfy the statutory time, provided there is privity (a voluntary transfer such as deed, will, or descent) between successive possessors—no gaps.

How do disabilities affect the adverse possession statutory period?

If the true owner is under a disability (e.g., minority, insanity, imprisonment) at the time the cause of action accrues, the statutory period is typically tolled until the disability is removed. Only disabilities existing at the start count; disabilities cannot be tacked.

What distinguishes a gift causa mortis from a gift inter vivos?

Both require donative intent, delivery, and acceptance. A gift inter vivos is irrevocable once complete. A gift causa mortis is made in contemplation of imminent death and is revocable—it is automatically revoked if the donor survives the anticipated peril.

What is the finder's rule for lost, mislaid, and abandoned property?

Lost property (owner unintentionally parted) goes to the finder against all but the true owner. Mislaid property (intentionally placed then forgotten) goes to the owner of the premises (locus). Abandoned property (intentionally relinquished) goes to the finder who takes possession.

What is the doctrine of accession in personal property?

When a person adds labor or materials to another's chattel, ownership may shift to the improver if the value or identity of the item is substantially transformed in good faith; otherwise the original owner retains title and the improver may owe/recover value.

Compare the riparian and prior appropriation doctrines of water rights.

Riparian (eastern states): owners of land bordering a watercourse share reasonable use rights. Prior appropriation (western states): rights go to the first to put water to beneficial use ('first in time, first in right'), independent of land location.

What is the distinction between lateral support and subjacent support?

Lateral support is support from adjoining land (a neighbor is strictly liable if excavation causes land in its natural state to subside). Subjacent support is support from underneath (owed by a holder of mineral/subsurface rights to the surface owner).

How are airspace rights treated in property law?

A landowner owns the airspace above the surface to the extent reasonably necessary for use/enjoyment, subject to a public navigation easement at higher altitudes; low, frequent overflights that substantially interfere with use may constitute a taking or nuisance (United States v. Causby).