Estates in LandI. Present Estates

1. Fee Simple Absolute Absolute ownership Created “To A” or “To A and his heirs” Best present possessory –

o Freely devisable (capable of passing by will), o Freely descendible (passes to one’s heirs, if one dies intestate), o Freely alienable (alienation—to be transferable inter vivos)

Is there an accompanying future interest?o NO! It is ABSOLUTE ownership

2. Fee Tail Virtually abolished Depended on grantors use of specific language“to A and the heir’s of his body” Passed directly to lineal blood descendants, no matter what! Idea historically: desire to keep land “in the family” Is there an accompanying future interest?

o Maybe, reversion in O or remainder in some third party3. Defeasible Fees **

a. Fee simple determinable

i. To A so long as…” “To A during” “To A until”(1) Grantor must use CLEAR DURATION LANGUAGE(2) If condition is violated, forfeiture is AUTOMATIC

ii. Is there a future interest?(1) Yes, possibility of reverter in grantor

Frank Sinatra to Orville Redenbacher so long as popcorn is never made on the premises(2) Present interest is fee simple determinable(3) Possibility of reverter by Frank Sinatra, if condition violated(4) F.S.D.P.O.R. (fee simple determinable with possibility of reverter)

** Frank Sinatra did not Prefer Orville Redenbacherb. Fee simple subject to condition subsequent

i. “To A, but if X happens, grantor reserves right to reenter and retake”(1) CLEAR DURATIONAL LANGUAGE, AND(2) Carves out RIGHT TO REENTER

ii. Not automatically terminated, but can be cut-short at grantor’s option, if condition occursiii. “Bobby Brown of estates” – it’s my prerogative … to terminateiv. IS there a future interest?

Yes, Right of Entry (aka power of termination)c. Fee Simple subject to Executory Limitation

i. “To A, but if X occurs then to B”ii. To Justin Bieber, but if JB ever performs music on the premises then to Joe Jonas

iii. Automatically forfeited if condition occurs, but works in favor of another NOT grantor (“shifting executory interest”)

4. Life Estatea. Explicit life-time terms: “To A for life” (A would be life tenant)b. The romantic estatec. Has future interest of reversion… at end of A’s life, then to O and O’s heirsd. Life estate pur autre vie (for life of another) “To A for life of B”e. Is there a future interest?

i. If held by O, reversionii. Or, remainder when future interest is held by a third party

LIFE TENANT AND WASTE DOCTRINE i. Must not commit waste!ii. Must not do anything that effects future interest holdersiii. Three kinds

(1) Voluntary Waste (affirmative) Overt conduct that causes a cost in value

(2) Permissive Waste (neglect) When land is allowed to fall into disrepair Life Tenant must MAINTAIN Blackacre

(3) Ameliorative Waste Life tenant must not engage in conduct that will ENHANCE property’s value, unless

all future interest holders consentII.FUTURE INTERESTS

A. FUTURE INTERESTS CAPABLE OF CREATION IN O, THE GRANTOR 1. Possibility of Reverter

FSDPOR2. Right of Entry (Power of Termination)

Fee simple subject to condition subsequent3. Reversion – catch all

Arises whenever grantor has something leftoverB. FUTURE INTERESTS CAPABLE OF CREATION IN TRANSFEREES

1. Remainder a. Patient future interests, waits for present estate to end before it takesb. REMAINDERS NEVER FOLLOW DEFEASIBLE FEESc. “To A for life, then to B” – B has a remainderd. Either vested or contingent e. Vested in two circumstances:

i. When created in a known takerii. And not subject to a condition precedent

“To A for life then to B” no pre-requisitef. Contingent when:

i. Created in as yet unknown takersii. Subjected to conditions precedent

“To A for life, then to B’s first child.” (B currently has no children contingent remainder)

“To A for life, then, if B graduates from college, to B”RULES THAT LIMIT CERTAIN CONTINGENT REMAINDERS

[1] Destructibility—contingent remainder would be destroyed if it were still contingent when preceding estate ended. ABOLISHED TODAY

VESTED REMAINDERS Created in a known taker that is not subject to condition precedent Ask, what kind of vested is it?

(1) Indefeasibly vested remainders (BEST KIND) – when it’s taker is known and not subject to any conditions. “To A for life, then to B”

(2) Vested Remainder subject to complete divestment [vested remainder subject to complete defeasance] – remainderman exists, not subject to condition precedent, subject to a condition subsequent. Some eventuality that if it manifests will divest (remove) remainderman of his interest. “To A for life, then to B, but if B dies under 25 to C.” If B dies under 25, B’s estate loses everything.

(3) Vested remainder subject to Open – remainder is vested in a group, category, or class of takers; at least one of whom is eligible to take. “To A for life, then to B’s children.” A is alive, B has two children, C and D. C & D have vested remainder subject to open. Always ask, is this class open or closed? open – when others can still join closed – when no one else can join; whenever any member can demand

possession. 2. Executory Interests – take effect by cutting short another or benefitting from another’s forfeiture,

are either:a. Shifting – always follows a defeasible fee and cuts short someone other than O. “To A, but if B

returns from Canada next year, to B” o B has a shifting executory interest – B is capable of interrupting A.o Why doesn’t B have a remainder? BECAUSE remainders never follow defeasible fees.

(Remainders are patient, typically follow life estates)o A has a fee simple subject to B’s shifting executory interest

b. Springing – cuts short O, the grantor. O conveys: “To A, if and when he marries” When A does get married, he has the power to cut off O’s interest

RULE AGAINST PERPETUITIES – Certain future interests are void if there is a chance that the interest might vest more than 21

years after the death of a measuring life. A compromise position. Do not want land tied up forever and ever

Step 1: Classify Future Interest

RAP applies only to certain contingent remainders, executory interests, and vested remainders subject to open

RAP never applies to future interests in O (possibility of reverter, reversion, etc) RAP won’t apply to indefeasible vested remainders, subject to complete defeasance

Step 2: What has to happen for future interest holder to take?Step 3: Find a measuring life

An entity alive at the date of the conveyance, whose life or death is relevant to the conditions occurring.

Step 4: Will we know for sure within 21 years of the death of that measuring life if the future interest holder can take?

Yes – gift is good. No – gift is bad

Example: “To A for life, then to A’s children.” A is alive and has no childrenStep 1: Contingent remainderStep 2: A has to die leaving a childStep 3: measuring life A Step 4: Will we know within 21 years of A’s death? YES! We will know at the instant of A’s death if there is a child or notANSWER – Conveyance is GOOD! III. Concurrent Estates

More than one entity owns blackacre at the same time1. Joint Tenancy –definition: two or more own with right of survivorship (ROS)

a. ROS – when one joint tenant dies, his share goes AUTOMATICALLY to surviving joint tenants (Destiny’s Child I’m a Survivor, I’m gonna take yours! I’m a survivor, I’m gonna keep yours!”)

b. Joint Tenant’s interest is alienable, it is NOT divisible or descendible because of the ROS

c. How do you create: i. Four Unities must be met:

(1) T—TIME (2) T—TITLE(3) I—IDENTICAL INTERESTS(4) P—RIGHT TO POSSESS the WHOLE

ii. Grantor must clearly state ROSd. How do you sever?

i. Sell or Transfer; severs joint tenancy as to the seller’s interest ii. Buyer becomes tenant in common

Ross and Monica hold 2/3 as Joint Tenants and chandler holds 1/3 as Tenant in common… if Ross dies; Monica takes Ross’s share. Monica (2/3) and Chandler (1/3) are tenants in common. Ross’s heir, Rachel, takes NOTHING. – Not descendible

SEVERANCE AND PARTITION – the means available for co-owners to dissolve their relationship (Boys 2 Men – End of the Road, though I can’t let go!)

(1) Voluntary agreement – peaceful way to end relationship. (2) Partition in Kind – court action for physical division of Blackacre, if in best interest of all. (3) Forced Sale – court can order that Blackacre be sold and proceeds divided, if in the best

interest of all parties (forced sale by judicial declaration)2. Tenancy by the Entirety –

a. def: marital interest between married partners with the ROSb. Only exists between married partners who enjoy the right of survivorship. (CAN’T TOUCH

THIS) c. Creditors of only 1 spouse cannot reach this interestd. Neither tenant, acting alone, can defeat the ROS by trying to sell to another

3. Tenancy in Common – a. def: two more own with no ROSb. Each co-tenant owns an individual part and has the right to possess the wholec. No survivorship rights between tenants in common (each interest is DESCENDABLE,

DEVISABLE, ALIENABLE)d. Presumption ALWAYS favors the tenancy in common

Common Law disfavors joint tenancies because it avoids the system of probateRIGHTS AND DUTIES OF CO-OWNERS Greg (90%) and Marsha (10%) own Blackacre – tenancy in common

(1) Each co-owner is entitle to enjoy the whole, no matter his or her respective share(2) Each co-owner receives his or her fair share of rent income from a 3rd party; if Greg leases

basement to Alice, then Marsha is owed 10% of rental income(3) Co-Owner enjoys right to contribution during the life of the co-tenancy for any repairs that

she reasonably makes As long as Marsha gives Greg notice prior to allow opportunity to object

(4) No affirmative right to contribution during the life of the co-tenancy for “improvements” Upside-Downside Doctrine

(a) At partition the improving co-tenant gets a credit equal to any objectively demonstrative increase in value to due efforts

(b) Also suffer debit if “improvements” actually cause a drop in value (5) Co-owners must not commit waste

No voluntary waste No permissive waste (neglect) No ameliorative waste (alterations that enhance value)

LANDLORD/TENANT LAWI. Four leasehold interests

1. Tenancy in Years (Term of Years) – a. Lease for a fixed period of time, could be as short as a few weeks, months, or years. b. No notice is needed to terminate, because by definition the lease is for a fixed period of time. c. Term of years greater than one year MUST be in writing because of SoF.

2. Periodic Tenancy – a. Continues for successive intervals until L or T give proper notice to terminate. Open-ended

period, “To T for month to month”. b. Notice must be given to terminate a periodic Tenancy, at least EQUAL to the length of the

period itself, unless otherwise agreed. (Can stipulate to in K) i.e. week to week – 1 weeks notice. If year to year ONLY 6 months notice

3. Tenancy at Will – a. Tenancy for NO fixed duration, endures for as long as L and T desire. b. Open-ended, can be terminated at any time, c. Yet reasonable notice to terminated usually needed

4. Tenancy at Sufferance – a. when T has wrongfully held over past the expiration of the lease. Short-lived, always destined

to be short-lived. Lasts only until L evicts T, or decides to hold T to new tenancyII. TENANTS DUTIES

1. Tenants duty to repair – T must maintain premises and make ordinary repaira. T must not commit waste

i. Voluntary (willful destruction)ii. Permissive (neglect)iii. Ameliorative waste

*Walks with the law of fixtures – when a tenant removes a fixture, he commits voluntary waste. b. T must not remove a fixture EVEN when she installed it

Fixture – once moveable chattel that by virtue of attachment objectively shows intent to permanently improve Blackacre (custom storm windows, furnace, certain lighting installations

i. FIXTURES PASS WITH OWNERSHIP OF THE LAND Ms. Janet Jackson installs $12,000 chandelier, L stops by and states that chandelier

qualifies as a fixture and states it should stay put! (“I’m sorry Mrs. Jackson, but I am for real. Never meant to make you cry, but if it’s a fixture—IT STAYS PUT!)

ii. How do you know if it’s a fixture?(1) Express Agreement controls(2) If removal will cause substantial harm, T has shown intent to install a fixture

2. T’s duty to pay renta. T breaches duty and is in possession of premises

i. Only options when T breaches:(1) Evict properly(2) Continue relationship and sue for rent due

ii. L MUST NOT ENGAGE IN SELF-HELPiii. Changing locks, removing T or T’s possessionsiv. Self-help is OUTLAWED, punishable civilly and criminally

b. T is not paying rent and is wrongfully OUT of possessionex: T leaves wrongfully with time left on terms of year leaseThe Options are S.I.R.

S- Surrender – L can view T’s abandonment as offer of surrender which L accepts I – Ignore Abandonment and hold T responsible for rent

o L places self in position of denial, Available only in a MINORITY of states R – relet on wrong doers behalf and hold him or her liable for any deficiency

Majority rule: requires L try to mitigateIII. LANDLORD’S DUTY

1. Duty to deliver possessiona. Must put T in physical possession of premises at the start of the lease

2. Implied covenant of Quiet Enjoymenta. Implicit promise that EVERY L makesb. It applies across the board (residential and commercial leases)c. Every tenant has right to quiet use and enjoyment of premises without interference from Ld. L can breach by:

i. Actual wrongful evictionii. Constructive eviction – Dido comes into office and says “Every time it rains water floods

my apartment” “The morning rain comes through my window, and I cannot see at all, I’ve really come to hate my Landlord, he’s really dropped the ball. I really want to sue him for renting me the worst place of my life…”

recollectee must S.I.N.G S. I. – Show substantial interference—a regularly recurring problem N- notice (T must give L notice of problem AND L must fail to act meaningfully) G – goodbye (T must vacate within a reasonable time after L fails correct the problem)

3. ** Implied Warranty of Habitability ** a. applies only to residential leasesb. Not Waive able c. Standard – must be fit for basic human habitation

d. Appropriate standard can be supplied by local housing codei.e. No heat in winter, no running water, lack of adequate plumbing

e. Options when I.W.of Habitability breached:i. MOVE OUT – end leaseii. repair and deduct – efficient, allows T to make repairs and to deduct from future rent;

empowers Tiii. reduce or withhold rent until court determines fair rental value

Typically, T must place withheld rent in an escrow account—shows T is a good faith iv. Remain in possession, pay rent, and sue for money damages

T is playing safe4. Retaliatory Eviction

L is barred from penalizing a good faith whistle-blower tenant, if T has lawfully reported L for violations, L is not allowed to amend lease, increase rent, etc.

SERVITUDESI. Easement

1. Definition a. A grant of an non-possessory property interest that entitles holder to some form of use or

enjoyment of another’s land2. Affirmative or Negative; most are affirmative

a. Affirmative—right to do something on serviant land ex: right to place utility lines on another’s land, right of way across another’s land

b. negative—allows holder to prevent a serviant owner from doing something that would otherwise be permissible Types of Negative Easements: L.A.S.S.

L – Light A – Air S – Support S – Stream water from an artificial flow (S – Scenic View)

3. Either appurtenant to land or held in grossa. appurtenant – when they benefit the holder in the physical use or enjoyment of his property

i. it takes two!—two parcels are involved. One is dominant (receives benefit), other is servient (bares the burden of the easement.

ex: A grants B a right of way across A’s land (1), so that B can better reach B’s land (2)(1) B’s land gets the benefit (dominant tenanament)(2) A’s land is serving B’s easement (servient tenement) (3) B has an easement appurtenant to B’s dominant tenement

“It takes two, baby, It takes two, baby… to make an easement appurtenant.”b. gross –gives its holder only some personal or commercial advantage, not related to his use or

enjoyment of land. i. Serviant land is burdened, but there is no dominant land because holder of easement in gross is

deriving a purely personal or commercial gain. ii. When an easement is in gross, only one parcel of land is involved. It is the servient land.

Examples: The right to place a billboard on another’s lot, The right to fish or swim in another’s pond, The right to place utility lines on another’s land.

4. Transferabilitya. Appurtenant will be transferred automatically w dominant tenementb. Easement in gross is not transferrable unless for commercial purposesc. Negative Easements only created through EXPRESS Writing

d. Four ways to create an Affirmative Easement (PING) P—prescription

i. May be required by satisfying the requirements of adverse possession. COAHo C—continuous use for statutory periodo O—Open and Notorious (visible pattern of use)o A—Actual useo H—hostile use, without servient users consent.

I—implicationi. Easement implied from existing useii. A owns two lots. Lot 1 is hooked up to sewer drain located on lot 2. A sells lot 1 to B with no

mention of any right to use the drain on A’s remaining lot 2. The court may imply an easement on B’s behalf if two circumstances are met:

(1) Previous use was APPARENT(2) Parties expected that it would survive division

N—necessityi. Land locked settingii. When grantor conveys part of land with no way out, except over some part of grantor’s

remaining land. G—grant

i. An easement to endure for more than 1 year must be in writing. Document to evident is called “A deed of easement”

Scope of an easement is set by the terms or conditions that created it. Do not allow unilateral expansion5. Terminating an Easement

a. Easements created by necessity expire as soon as necessity endsb. Estoppel doctrine – applies when serviant owner materially changes position in reasonable

reliance on easement holders assurances that easement will not be enforced

c. Written Release (most common) by holder to serviant ownerd. Abandonment – easement holder must show by physical action the intent to never use the

easement again.e. Merger Doctrine – unity of ownership. Easement ends when title to easement and title to serviant

land become vested in the same personf. Prescription – serviant owner may extinguish easement by interfering with it in accordance with

elements of adverse possession C—Continuous interference O—Open and Notorious A—Actual H—Hostile to the easement holder

II. License1. Definition

a. a mere privilege to enter another’s land for some delinated purpose2. Not subject to SoF –

a. informal, flimsiest device in servitude familyb. Freely Revocable at the will of the licensor unless estoppel applies to bar revocation.

3. Classic License Cases:a. Ticket Cases – create freely revocable licensesb. Neighbors talking by the fence – seemingly oral easements create instead freely revocable

licenses (bc it would violate SoF)4. Estoppel –

will bar revocation of a license but only when the licensee has invested substantial money or labor or both in reasonable reliance on the easements continuation.

III. Profits1. Definition

a. Entitles holder to enter serviant land and take from it the soil or other resource there upon (ex: right to take minerals, right to take timber, right to drill and extract oil)

2. Profit shares all the rules of easementsIV. Covenant

1. Definitiona. A promise to do or not do something related to land; very different than an easement because it

starts off as a mere contractual limitation regarding land.2. Either negative or positive

a. Restrictive covenant: promise to refrain from doing something related to landex: I promise not to build for commercial purposes. I promise not to paint front shutters brown… limitless.

o Because negative easements were so narrow in scope, covenants created to privately assume obligation to refrain from doing other categories of restrictions

b. Affirmative covenant: promise to do something related to landex: I promise to paint our common fence.

3. How will you know whether to construe promise as covenant or equitable servitude? a. When P wants money damages, construe as a covenantb. When P wants an injunction, construe as an equitable servitudec. ALWAYS ASK – What to you want it to be?

4. When they want it to be a covenant parlance: One is burdened, one is benefited.

5. When will the covenant run with the land? When it is a capable of binding successors.

6. Example: A promises B that A won’t build for commercial purposes.

STEP 1: Immediately, A parcel is burdened, B’s parcel is benefitted. A sells burdened parcel to A-1; B sells benefitted parcel to B-1 A-1 builds steak sauce company. B-1 sells for money damages

STEP 2: Does the burden of A’s promise to B run from A to A-1?Always start with burden side… harder for burdens to run than for benefits.

W.I.T.H.I.No W—writing (original promise was in writing)o I—intent (original parties intended that covenant would run) *Courts are generous to

presume intento T—touch and concern the land (promise must affect parties as land owners)o H—horizontal and vertical privity (both needed for burden to run)

Horizontal privity – connection between original parties (A & B) had to be in succession of a state (A & B enjoyed a grantor/grantee or landlord/tenant or mortgager/mortgagee relationship when promise was made OR A & B also share some other servitude between them) Difficult to establish its absence is the reason why many burdens will not run.

Vertical privity – nexus between A and A-1. MUCH easier to establish. Requires some non hostile connection (i.e. contract devise or decent) Only time absent is if A-1 took by adverse possession.

o N—Notice (A-1 must have had notice of promise when she took)STEP 3: Does Benefit run from B to B-1? Does B-1 have standing to make claim?

W—writing I—intent (original parties intended benefit to run) T—touch and concern (promise effects parties as landowners) V—vertical privity (non-hostile nexus between B & B-1)

HORIZONTAL PRIVITY IS NOT NEEDED FOR BENEFIT SIDE TO RUN

That’s why it is easier for benefits to run to successors than for burdens to be imposed upon successors. V. Equitable Servitude

1. Promise that equity will enforce against successors (HINT: P seeks injunction relief)2. To create an equitable servitude that CAN bind successors: WITNES

W—Writing (generally, original promise in writing) I—Intent (parties intended promise would bind successors T—Touch and Concern the land N—Notice (sucessors of burdened land had notice) E,S—Equitable Servitude

3. PRIVITY IS NOT NEEDED TO BIND SUCCESSORS4. GENERAL OR COMMON SCHEME DOCTRINE

a. Example:i. A subdivides land into 50 lotsii. sells 45 lots that restrict use to residential purposesiii. sells 1 lot to commercial entity, B, by deed with no restrictioniv. Can B be enjoined from building commercially?

b. Yes, B can be enjoined if two elements are met: i. when sales began, the subdivider (A) had a general scheme of residential development which

included defendant’s lotii. Defendant lot holder had notice of the promise contained in prior deeds

c. Three forms of notice A—actual notice

I—inquiry (neighborhood conforms to a common restriction) R—record (public records)

One defense changed conditions, may be terminated when change has so infected given area as to render purpose mute

Adverse PossessionI. Definition

1. Possession for a statutorily prescribed period of time can ripen into title, if certain elements are met C—Continuous (uninterrupted for statutory period) O—Open and Notorious A—Actual H—Hostile

2. tacking —one adverse possessor may tack on to his time w/ the land, his predecessors time as long as there is privity (met by any none hostile nexus) tacking is not allowed when there has been an ouster

II. Land TransactionsEvery conveyance of real estate involves a two-step process

1. Land Contract: endures until step 2a. Land Contract and Statute of Frauds

Must be in writing, signed by party to be bound, must describe the land and state some consideration

b. Doctrine of Part Performance (need 2 of the following three): i. B takes possessionii. B pays all or part of the price

iii. B makes substantial improvementc. Risk of Loss:

i. In equity, once the K is signed, B owns the land subject to condition that he pays balance owed.ii. If in interim between land K and closing, Blackacre is destroyed and neither party is at fault then

B bears risk of loss unless land K states otherwise. d. Two implied promises in every Land K

i. Seller promises to provide marketability title at closing marketable title – title free from reasonable doubt (lawsuits, threat of litigation) Three circumstances that render title unmarketable

(1) Adverse Possession(2) Encumbrance (servitude and liens) *buyer can waive presence of these(3) Zoning Violations – only violation not presence

ii. Seller promises not to make any false statements of material fact also liable for FAILURE to disclose latent material defects seller is held accountable for material lies AND omissions

2. Closing: the deed becomes the operative documenta. The deed passes legal title from seller to buyer b. “If Deeds Could Talk” –remember in order for me to do my job, I’ve gotta be LEAD

i. L, E – lawfully executed (deed was in writing, signed by grantor)ii. A,D – and delivered (can occur when grantor LITERALLY transfers deed to grantee; delivery does

not necessarily require actual, physical transfer of the deed itself)c. Delivery is a legal standard and not a literal standard; grantor has SHOWN the present intent to

be immediately bound regardless of whether deed was literally handed over.d. If a deed is transferred with an oral condition, the oral condition typically drops out. Oral

condition is too susceptible to fraud…

III. Three members of the Deed Family – 3 kinds of deeds1. Quit Claim – worst deed, contains no covenants, no promise to good title (Shaggy – Wasn’t Me) 2. General Warranty Deed – BEST deed. Self-less. [Mother Theresa of deeds]

Warrants against all defects in title including those due to grantor’s predecessors; usually contains six covenants

a. Present Covenants – breached if ever at time of delivery, Statute of Limitations begins to run from the instant of deliveryi. Covenant of Seisin: grantor promises that he owns estate (vested with seisin)ii. Covenant of Right to Convey: grantor has power to make transferiii. Covenant against Encumbrances: grantor promises there are no servitudes or liens on

blackacre.b. Future covenants—No breach until disturbed in possession

iv. Covenant for Quiet Enjoyment – grantee will not be disturbed while in possession by a 3rd parties lawful claim of title

v. Covenant of Warranty – grantor promises to defend grantee against lawful title claimsvi. Covenant for Further Assurances – grantor promises to do whatever is needed in the future to

perfect the title3. Statutory Special Warranty Deed –

a. contains two promises that grantor makes only on behalf of himself. Grantor is not making any promises on behalf of predecessorsi. Grantor promises that he has not conveyed Blackacre to anyone other than granteeii. Blackacre is free from encumbrances made by grantor

Recording SystemI. Example

1. Conveys Blackacre to A, later O conveys Blackacre to B. O is a double-dealer. O is nowhere to be found? Who prevails?

a. If B is a bona fide purchaser in a notice JUX, B wins; regardless of whether B records before A

b. If B is a bona fide purchaser in a race-notice JUX, B wins, if she records properly BEFORE A. 2. Only protects:

a. bona fide purchaser – to be a BFP – i. Buys Blackacre for value (not gift, will, or intestate) ii. Without notice that someone else got there first

Three kinds of notice(1) Actual(2) Inquiry(3) Record

3. Notice Jux—B wins if B is a b.f.p. when he takesa. Under Notice system, wins over any competing predecessors if a bfp at time of taking. b. LAST b.f.p. to enter the scene ALWAYS wins

4. Race Notice Jux—if he is a b.f.p. when he takes AND he also wins race to recorda. A deed is recorded properly when it is within the chain of title(sequence of recorded documents

capable of giving record notice) i. B would have lost if A had recorded properly before B took

II. WILD DEED1. Example

a. sells Blackacre to A who does not record. Later, A sells to B. B records the A to B deed. The A to B deed, although recorded, is not connected to the chain of title because the O to A link is missing from the records.

2. A to B deed is called a wild deed3. RULE: If a deed entered on the record has a grantor unconnected to chain of title, then the deed is a

wild deed. It is incapable of giving record notice of its contents. (Wild deed, I think I loathe you)III. Estoppel by deed – equitable principle

1. One who conveys realty in which he has no interest will be estopped from denying the validity of that transfer if he later comes to acquire what he had previously purported to convey.

Imminent Domain1. 5th amendment

a. power to take private property for public use in exchange for just compensation2. Two kinds of Taking:

a. Explicit Taking – overt act of governmental condemnationb. Implicit (Regulatory) Taking – government regulation although never intended to be a taking,

nonetheless has the same effect. 3. Remedy – government must provide just compensation.

Zoning1. Pursuant to its police powers, government may enact statutes to reasonably control land use. 2. The variance is the principal means available to achieve flexibility

a. Area variance – an allowable use that presents a problem of ill-fiti. Proponent of area variance must show

(1) Undue hardship(2) Variance wont work detriment to neighboring property values

b. Use variance – permission to depart from the list of allowable uses in a given zonei. Once lawful use now demeaned non-conforming use

3. Exactions—the amenities government seeks in exchange for permitting permission to builda. To pass constitutional scrutiny any exactions that government seeks must be reasonable related

in nature and scopeb. If they are not, then exactions are unconstitutional