April 9, 2012

Real Property Law Bar Exam Outline for Law Students

This is a sample law school and bar exam outline for the topic of Real Property Law.


1.   Freehold Estates (these give possession to property under some legal title).
A.    Fee Simple
B.     Fee Tail
C.  Life Estates

2.      Non-freehold estates don’t give legal title; they give mere possession.
A.    Tenancy for Years
B.     Tenancy for Period to Period (LL/T law)
C.     Tenancy at Will
D.    Tenancy at Sufferance

3.   Concurrent Estates
A.    Joint Tenancy
B.  Tenancy by the Entirety
C.     Tenancy in Common

4.      Non-possessory interests in land
      A.    Easements
B.     Profits
C.     Covenants
D.    Equitable Servitudes
E.     Licenses

5.      Future Interests
A.    Reversions
      B.     Possibility of Reverter
      C.     Right of Reentry
      D.    Remainders
      E.     Executory Interests

6.      Rights Incident to Possession
      A.    Adverse Suppression
      B.     Lateral Subjacent Support
      C.     Water Rights

7.      Conveyancing

8.      Mortgages

I. Freehold Estates

A.    Fee Simple

1.      Fee Simple Absolute

a.       Most extensive estate a person can own in property.
b.      Largest estate known to law.
c.       Denotes the maximum of legal ownership.
d.      Words at CL ----> “To the grantee and his heirs.”

2.      Fee Simple Determinable
a.       Fee simple created to continue until happening or non-happening event of a stated event.  When the event occurs the estate terminates and reverts back to the grantor.
b.      Words at CL:
(1)  So long as
(2)  during
(3)  until
(4)  while

3.      Fee Simple Subject to Condition Subsequent
a.       A fee simple estate that may be terminated on the happening or non-happening of stated event.
b.      A right of re-entry exists for broken conditions.  When the event occurs there is not an automatic reversion to grantor but rather a right to enter the property matures.
c.       Words at CL:
(1)  On condition that
(2)  Subject to the condition that
(3)  But if

4.      Fee Simple Subject to Executory Interest
a.       A fee simple estate where on the happening or non-happening of an event, ownership passes from one grantee to another.
b.      There is not a reversion or right of re-entry.  Key is that title passes.
c.       Two types: (discussed below)
(1)  Shifting Executory Interests
(2)  Springing Executory Interests

B.  Fee Tail
1.      At CL a fee tail was usually created by the words “To B and the heirs of his body.”
2.      Inheritance was restricted to the lineal descendants of the grantee.
3.      The grantor could restrict to a particular group of lineal descendants of the grantee.
4.      Lineal heirs are sons, daughters, children, grandchildren and great grandchildren.
5.      Collateral heirs are cousins, nieces, nephews, uncles and aunts.

C.     Life Estates

1.      A freehold estate where the duration is measured by the lives or lives of one or more human beings.

2.      A life estate pur autre vie is a freehold estate where the duration is measured by the life of someone other than the grantee. (i.e. X conveys Blackacre to B for life of A)

3.      Dower - a widow on the death of husband is entitled to a life estate in 1/3 of the lands her husband was seized in fee simple during the marriage.

4.      Tenancy by Curtsey - a life estate to which the husband was entitled in the lands that his wife was seized in during the marriage.  It required:
a.       Legal marriage.
b.      Wife must be seized in the land in either fee simple or fee tail during the marriage.
c.       The wife must have issue born by the husband.
d.      Wife must predecease husband.

II.  Future Interests

A.    Reversions
1.      This is an estate remaining in the grantor who has conveyed a lesser estate than that owned by the grantor. (i.e. X owner in fee conveys Blackacre to B for life)
2.      A reversion arises as a matter of subtraction - grantor conveys a smaller estate than what he has - usually fee tail or life estate.

B.     Possibility of Reverter
1.      The interest retained by the grantor of a determinable estate or a fee simple determinable.
2.      With this, once the triggering event occurs, there is an automatic reversion to the grantor of the particular estate.

C.     Power of Termination / Right of Re-entry
1.      This is created in the grantor subject to a condition subsequent.
2.      There is not an automatic reversion to the grantor of the title, but rather the grantor gets the option to re-enter the estate.

D.    Remainder

1.      This is a future interest created in a third person which is intended to take effect after the natural termination of the preceding estate. (i.e. A owner in fee conveys Blackacre to B for life, with remainder to C and his heirs)

2.      Every remainder must be preceded by either a fee tail or a life estate.  Modern permits the preceding estate to also be an estate for years.

3.      It is created with the following elements:
a.       In favor of a transferee who is one other than the conveyer.
b.      Created at same time and in the same instrument as the prior particular estate which supports or precedes it.
c.       Preceding estate must be of lesser duration than the interests of the conveyer so an interest will exist to pass on to the remainderants.

4.      Vested Remainders - a remainder created in an ascertained or existing person not subject to any condition precedent except the termination of the preceding estate.
a.       A conveys or devises to B for life then to C and her heirs.  (C’s remainder is vested; an ascertained person not subject to condition precedent).
b.      To B and the heirs or her body then to C and her heirs.
c.       To B for life and then to C for life.
d.   Types of Vested Remainders:
(1)  Remainders Absolutely Vested - limited to ascertained or identified person without words of condition and is not subject to divestment
(a)  To B for life then to C and her heirs — C has remainder absolutely vested.
(2)  Remainders Subject to Partial Divestment (also called “subject to open”) - when the remainderman is in existence and is ascertained but the amount of the estate is subject to being diminished in favor of other members of a class. 
(a)  A devises land to B for life then to the children of B in fee.
(3)  Remainders Subject to Complete Divestment - when the remainderman is in existence and ascertained and her interest is not subject to condition precedent but her right to possession or enjoyment on expiration of prior interest, is subject to termination by reason of an executory interest, power of appointment, or right of re-entry.
(a)  A conveys to B for life, then to C and her heirs, but if C dies leaving no surviving children, then to D and his heirs.

5.      Contingent Remainder - any remainder which is created in favor of an ascertained person but is subject to a condition precedent or is a remainder which is created in favor of an unborn or unascertained person.  (A to be for life, remainder to C and his heirs if C marries before B’s death).

6.      All remainders are considered transferrable.  (At CL they were not).

7.      A contingent remainder is not subject to claims of creditors but a vested remainder is.

8.      A remainder cannot take effect until the natural termination of the prior estate.

9.      Contingent remainders come within the Rule Against Perpetuities; vested remainders do not.

10.  A vested remainderman has a right to compel the prior owner to pay taxes and interests on encumberances; but a contingent remainderman cannot compel.

E.     Executory Interests - a future contingent interest created in favor of transferee in the form of a springing or shifting use which on the happening of the contigency will be executed into a legal estate and which cannot be construed as a remainder.

1.      Always in favor of transferee (someone other than grantor or transferor).  Hence do not confuse with reversion, possibility of reverter, or right of re-entry whereby the right to possession reverts back to the grantor.

2.      These are always contingent and can never vest b/c when it does vest it ceases to be an executory interest.

3.      Shifting Executory Interest - these cut-short or terminates a preceding estate in favor of another grantee.  (A conveys to B for life, but if B becomes bankrupt then to C and his heirs.)

a.       A owner in fee, conveys Blackacre to B and his heirs, but if B marries Z then to C and his heirs.  In this case ownership passes from A to B and then upon happening of event to C.  In other words, with the shifting executory interest, ownership passes to grantee #1 and then to grantee # 2.

4.      Springing Executory Interest
a.       A owner in fee, conveys Blackacre to B and his heirs, but if B marries Z, then to C and his heirs one year later.  This is a springing executory interest b/c the ownership passes from grantor to grantee #1, then during lapse of time reverts back to grantor, and then finally to grantee #2.

5.      Contingent Remainder v. Executory Interest
a.       A contingent remainder cannot follow a fee simple interest of any kind.  Any interest following a fee and held by a third person is an executory interest.

6.      Executory Devises
a.       Executory devises are created by wills whereas springing or shifting uses are created by deed or grant inter vivos.

F.      Rule in Shelley’s Case
1.      At CL if in conveyance or will, a freehold estate was given to a person, and in the same conveyance or will a remainder was limited to the heirs of that person, then the grantee takes both the freehold estate and the remainder.
2.      Example: Where X, owner in fee, conveys Blackacre to B for life with the remainder to B’s heirs.  (B ends up with fee simple estate).

G.    Doctrine of Worthier Title
1.      Example: Where the grantor X owner in fee, conveys Blackacre to B for life with remainder to X’s heirs.
2.      Here, the remainder is cut-off and there is a reversion back to the grantor - title by descent is better than by purchase.

H.    Rule Against Perpetuities
1.      No interest is valued unless it must vests, if at all,  not later than 21 years after some life in being at the time of its creation.
2.   Only contingent interests, executory interests, options to purchase land contained in a deed instrument and powers of appointment come under the rule.
3.      The rule is directed at remoteness of vesting.
4.      Options to Purchase Land in the Future
a.       If you see a right of refusal held by the grantor and will know within their lifetime if they will exercise that right, then there is probably no violation.

I.       Class Gifts (Remainder Subject to Open)
1.      The gift is deemed vested once the class is closed.
2.      The entire gift will be void if only one person violates the RAP.
3.      A class can close either under the physiologically (parent of class dies) or by convenience (whenever a member of the class is entitled to demand a share of possession the class can close; this saves the class).

J.       Power of Appointment
1.      Considered like general ownership of property - they can transfer property.
2.      Where one can alienate property, the RAP cannot be violated.

K.    Restraints on Alienation
1.      Things in deeds, mortgages, wills which restrict the ability of the person to transfer property.
2.      Any restraints on fee simples are invalid; they are OK on lesser estates.
3.      Restraints:
a.       May be total or partial.
b.      If they are on persons they are invalid.
4.      Pre-emptive right or right of first refusal are upheld.

III. Concurrent Estates

A.    These have ownership by two or more persons at same time.

B.     Joint Tenancy - a form of co-ownership where each tenant owns an undivided interest in the whole estate.  Its distinguishing aspect is the right of survivorship.

1.      Creation; at AL four unities required:
a.       Interests must vest at same time.
b.      Interests must be acquired by same instrument.
c.       Interests must be of same type and duration.
d.      Interests are given identical rights of enjoyment.

2.      Joint tenancy are always created by a deed or will - never by descent.

3.      They are disfavored and therefore a clear expression of intent is required to create a joint tenancy.  If words “joint tenants” are not in the devise then a tenancy in common is created.

4.      Termination:
a.       May be terminated by a conveyance inter vivos. (A tenancy in common will result).
b.      A suit to partition can be brought by either tenant.
c.       In a minority of JX which follow title theory, a mortgage is regarded as a transfer of title and will destroy the joint tenancy.
d.      In a majority of JX which follow lien theory, a mortgage is considered a lien and will not result in a severance.
e.       Leases will not effectuate severance or termination of a joint tenancy.
f.       Contracts to convey away interests will usually result in a severance of the joint tenancy even though no conveyance actually confers.

C.     Tenancy by the Entirety - based on the CL concept of unity of Husband and Wife.  

This also has a right of survivorship.
1.      Five unities are required:
a.       Time
b.      Title
c.       Interest
d.      Possession
e.       Person

2.      To sever, both spouses have to join in the conveyance; a single spouse could not sever the title.

Divorce will terminate and the divorced couple will become tenants in common.

4.      Execution by a joint creditor of both husband and wife will constitute a severance but a creditor of one spouse will not.

5.      Neither spouse has a right to have a partition at CL.

D.    Tenancy in Common - a concurrent estate in which co-tenants each own an undivided, separate and distinct share of the property.  They do not own the entire property.  Each tenant can dispose of their part.  The only unity is that of possession.  NO right of survivorship.
1.      Can be destroyed by partition or merger.`
2.      The interest is freely alienable.
3.      Ouster - when one co-tenant ousts the other the ousted has a cause of action to regain possession.
4.      There is no fiduciary relationship between tenants in common.

E.     Rights and Duties Concerning All Three Types of Concurrent Estates:
1.      Possession - in all three each tenant has a right to enjoy the property.
2.      Profit - Tenant in possession has right to retain profits from use of the property and need not share with a co-tenant out of possession (unless there was an ouster).
3.      Taxes - where one tenant paid all the taxes that tenant may compel contribution by the other tenant.
4.      Improvements - asa general rule one tenant has no right of contribution against the other co-tenant that the other made on the property.  If a partition was made then the court may make an equitable division of the proceeds (taking into accounts the expenditures of one tenant over another).

IV. Landlord-Tenant

A.    A leasehold is a conveyance of an estate and also a K.
B.     Lease must be in writing to satisfy S/F.  It requires the following elements:
1.      Identify LL and T
2.      Describe leased land
3.      State term of lease
4.      Set forth amount of rent
C.    Tenant Duties
1.      Rent is the consideration paid to the LL for use and enjoyment of the land.  At CL rent is not proportional (it does not accrue day to day).
2.      Destruction of Premises - that does not release T from obligation to pay rent.  (i.e. fire, floods, other destruction.
3.      Rent is extinguished by:
a.       Release by LL.
b.      Merger (T acquires title to property)
c.       Expiration of lease
d.      Eminent domain
(1)  If all of leased land is condemned then the duty to pay rent is extinguished.

(2)  If taking is only temporary or only a portion of the land then T is no discharged from obligation to pay rent.
e.       Constructive eviction
(1)  This is a material breach by the LL which violates the T’s implied covenant of quiet enjoyment.
f.       Frustration of purpose
g.      Surrender
4.      Duty to Repair - T has duty to make ordinary repairs on the premise.  T cannot create waste:
a.       Voluntary Waste - injury to the premise or land cause by affirmative act of T (i.e. exploiting mineral rights unless land so leased)
b.      Ameliorating Waste - change in physical characteristics of the premises by an unauthorized act of the T which increases the value of the land.  T not liable for this type of waste.
c.       Permissive Waste - injury to land caused by T’s failure to act when it was their duty to act.  (i.e. leak in the roof and T doesn’t tell anyone)
d.      Equitable Waste - injury to the reversionary interest in land which is inconsistent with good husbandry and is recognized only by the equity court but it does not constitute legal waste.  Look for expression in lease which states: “without impeachment of waste.

D.    Landlord Duties
1.      Duty to Deliver Possession of Premises - a LL does not have obligation to deliver possession of premises to T.  A lessee does not have a legal interest in the premises until they actually acquire or take possession.  A trespasser or holdover only gives T right to go after that person and not the LL.  The English view warrants T will have possession.
2.      Implied Covenant of Quiet Enjoyment
3.      Eviction
a.       Eviction by LL - this relieves T of obligation to pay rent.
b.   Actual Eviction - occurs when LL or paramount title holder excludes T from premises.
c    Constructive Eviction - conduct of LL renders premises uninhabitable.
4.      A LL does not impliedly warrant that a premises is suitable for particular uses; the LL is also not liable for dangerous conditions on the premises (caveat emptor).
5.      However, LL may be liable for hidden defects.
6.      LL may also be liable if there is a completely furnished dwelling which is rented for a short period or time.
7.      Duty to Repair - LL is under no duty (the T is).  However, a LL may be liable where the LL undertakes repairs and then does so in a negligent fashion.

E.     The Types of Non-Freehold Estates
1.      Tenancy for Years (At Term)

a.       These have a fixed duration in the lease.
2.      Periodic Tenancy
a.       Week to week or Month to month.
b.      This is automatically renewed for the next period unless notice is given.  If notice is not in compliance with statutory requirements then it is ineffective.
3.      Tenancy at Will
a.      Continues indefinitely until terminated by one of the parties.
4.      Tenancy in Sufferance
a.       Occurs when there is a holdover tenant who wrongfully remains in possession.

F.      Assignments - absent an expression prohibition on transfers, a T may freely transfer there interests in whole or in part.  Where the transfer is for the entire remaining estate that is an assignment.
1.      T is still in privity of K with the LL.
2.      There is both privity of estate and privity of K between the assignee and the LL.
3.      A second assignment will end the privity of estate with the LL, and unless the first assignee assumed a covenant under the lease there is also no privity of K.

G.    Subleases - this is where the T retains part of the estate.
1.      T remains in privity but there is no privity of K between LL and assignee.

H.    Assignments by LL - the LL can assign away his reversionary interests.  If ownership interests in the property are conveyed away this is called attornment.

*Note: a covenant prohibiting assignment or sublease is strictly construed (is assignment then you can still sublease or vice versa)

I.       Fixtures - this is chattel which has become real property.  Requires:
1.      Intention of annexer that chattel become a fixture. (most important)
a.       What is the nature of the article?
b.      The manner of annexation to the land?
c.       Injury to the land?
d.      The completeness with which the chattel is integrated to the use which the land is being put to use?
e.       The relation the annexer has to the land?
2.      Chattel must be annexed to the realty either actually or constructively.
3.      Chattel must be appropriated for purpose for which the property is used.

J.       Trade Fixtures - chattel annexed to land by T during the term of the use and used for particular purpose the land was leased for.  They can be removed.

V.    Non-Possesory Interests in Real Property

A.    Profits - the right of one person to go on the land of another and extract or remove something therefrom (i.e. sand, timber, minerals, vegetables).

B.     Easements - the right of one person to go on the land of another and make limited use of the property.

1.      Easements Appurtenant - requires two parcels of land (dominant tenament and an adjoining servient tenament).  For example, the dominant tenament has right to enter onto servient tenament for ingress and egress.  An easement appurtenant runs with the land b/c to can be enforced against successors in interest to the original contractors of the property.

2.      Easements in Gross - does not involve adjoining tracts of land.  There is simply a servient tenament that is subject to the easement (i.e. city sewerline in backyard).  Easements in gross are personal - they are intended to benefit the holder personally rather than in connection with any land that person may own.

3.      Affirmative v. Negative
a.       Affirmative - allow easement holder to make some affirmative use of the servient tenament.
b.      Negative - prevents the servient tenament from doing some act or making use with some land.

4.      Creation of an Easement - easement must usually be created in writing to satisfy S/F.
5.   Easement by Implication - no writing required.  This usually arises when there is a tract of land-locked land sold and no mention of easement is made.  The party purchasing the land is said to have an easement by implication (grantee -> reasonably necessary or grantor -> strictly necessary).
a.       By Grant - Where grantee shows easement was reasonably necessary for benefit of grantee.
b.      By Reservation - Where the easement benefits the grantor and is retained by the grantor.

6.      Prescriptive Easement
a.       Requires the following elements:
(1)  Adverse use
(2)  Open
(3)  Notorious
(4)  Continuous
(5)  For the statutory period.

7.   Termination of an Easement
a.       Merger - where dominant and servient tenaments come under single ownership.
b.      Written Release - where holder of the easement may execute a release terminating the easement.
c.       Abandonment - a clear showing by dominant tenament that they intend to abandon will extinguish the easement.  Mere non-use will not - must have intent.

d.      Prescription - where the servient tenament owner has used her land continuously and uninterrupted for the statutory period of prescription in a way that is inconsistent with and adverse to an easement and without consent of dominant tenament owner.
e.       Destruction of the Servient Tenement - if the easement is in a structure and the structure is destroyed the easement will be lost.
f.       Estoppel - for example, B has easement over A’s property and tells A that he has no intention of using the easement anymore and A decides to build a house over the right of way while B says nothing.
g.      Condemnation / Eminent Domain - this will extinguish the easement.  The holder of the easement in this situation is entitled to compensation for the value lost, this includes profits.

C.     Licenses
1.      Permits one person to come into land of another without being a trespasser.
2.      A license is not an interest in land (unlike an easement).
3.      It is a revocable privilege.
4.      If a license is coupled with an interest then it is irrevocable
(i.e. A sells B potatoes
and says B can enter the property to remove the boxes of potatoes).

D.    Covenants Running with the Land
1.      This is like a hybrid between a K and an easement.  The covenant may be enforced against or by someone who is not an original party to the covenant.
2.      Requires:
a.       A Covenant (signed and complies with S/F)
b.      Intention (intent of parties that the covenant run with the land - this includes the use of the words assigns or successors)
c.       Touch and Concern the Land (covenant makes the land either more / less value or more / less utilitarian)
d.      Privity of Estate Between the Parties - this means one of the contracting parties succeeds to an interest in the land of another.
3.      They are generally enforceable at action at law.
4.      They can be terminated in the same ways an an easement or a profit (merger abandonment or estoppel).

E.   Equitable Servitude

1.      A restriction on the use of land that is enforceable in equity.

2.      Requires:
a.       Writing
b.      Intention
c.       Notice (actual, constructive or inquiry as in a common development scheme)

3.      Methods to Impose
a.       Declaration of Restrictions - the grantor files with the recorders office which states his intent to subdivide the lots with some restriction.
b.      All Lot Owners Execute Formal Agreement Themselves
c.       Common Development Scheme Where the Last Lots Sold (w/o Restriction) Will be Put on Notice as to the Restriction on Earlier Lots Sold

4.      Cf. A covenant running with the land requires privity of estate whereas an equitable servitude does not.

5.      An injunction is the usual remedy for an equitable servitude.

6.      Termination can be done be release, merger, abandonment, etc..  A typical fact pattern will involve changed neighborhood conditions (residential neighborhood becomes a commercial hub and purpose of the servitude is meaningless).  Note that subsequent zoning changes will not affect an equitable servitude.

VI.  Rights Incident to Possession

A.    Adverse Possession

1.      Requirements:
a.       Adverse use (w/o permission)
b.      Actual and Exclusive (sole physical occupancy)
c.       Hostile
d.      Open use (adverse possessor represents himself as rightful owner)
e.       Continuous use
f.       For statutory period

2.      The burden of proof requires all the elements to co-exist.

3.      Limitation of Adverse Possessor’s Claims
a.       An adverse possessor cannot acquire a larger estate than is claimed (i.e. if claiming life estate then cannot get a fee simple).
b.      An adverse possessor cannot claim title to less than a freehold estate (i.e. must be either life estate, fee tail, or fee simple).
c.       The statutory period begins to run when a cause of action accrues against an adverse possession.
d.      The recording statutes have no application to adverse possession.
e.       There need not be continuous possession by a singular individual, the period of adverse possession can be tacked on between adverse possessors who are in privity.  Privity interests exist when passed on by descent, deed, will, written contract, oral contract, oral gift, or mere permission.
f.       Person who is under disability can toll the statute of limitations until the disability is removed.

4.      Honest Mistake - the minority view takes the position that the adverse possession must intend to hold the property against the world.  So, if you wrongfully believe you own the property you cannot have the subjective intent to adversely possess.  The majority view emphasizes the physical possession and not the subjective views of the possessor.

B.     Lateral and Subjacent Support

1.      Lateral Support (side support)  - Right of a landowner to have her land supported laterally by the neighboring land is inherent in the land itself and absolute.
a.       The right means the land in its natural condition without any buildings or artificial excavations.  Removing the support of a neighbor’s land in natural condition will make you negligently liable.

b.      English Rule allows recovery to include both damage to land and the artificial structures on the land. (Minority view)
c.       American Rule limits recovery to damage to the land in its natural condition only. (Majority view)
d.      Under both rules, where there is negligent excavation where lateral subjacent support is removed, the D will be liable for all damage which flows from negligence.

2.      Subjacent Support (underneath support) - same rules apply.
a.       Where excavation causes neighbors land to sink.

C.    Water Rights

1.   Lakes or Streams - all tracts of land which touches a lake or stream is riparian.  To be riparian one need only own such land.
a.       Natural Flow Theory - each riparian owner has a fundamental right to have the lake or stream remain substantially in its natural state.  Free from any unnatural diminishment in its state.  (i.e. reducing the water level)  Each riparian can use the water sensibly as so as not to effect the quantity or quality of the water.
b.      Reasonable Use Theory - each riparian can make maximum use of the water so as such use does not reasonably interfere with the use of the water by other riparians.  (i.e. water level may decline but there may still be enough water for other users)
c.       Water Uses - under both theories there are:
(1)  Natural Uses - domestic uses; natural uses take priority over artificial uses
(2)  Artificial Uses - irrigation, power, mining, industrial uses
(3)  Prior Appropriation Doctrine - minority of JXs will protect the prior use of water even if it unjustly effects other riparians.  First in time, first in right.
2.      Underground or Percolating Waters - this water is subject to the absolute use and control of the surface owner.  If withdrawal of such water effects other landowners that is too bad.
a.       Reasonable Use Doctrine - American view (minority) holds that if surface owner makes unreasonable use which effects neighboring land then there is a cause action.
3.      Surface Waters - in a majority of states the landowner has unlimited discretion in dealing with surface waters regardless of the effect on other people.  Surface water is viewed as a common enemy.

D.    Surface Rights (rights on or below the surface)
1.      Fructus Naturalus - trees, grasses, shrubs.  These are considered to be parts of the land and as such are real property until severed from the land.  If trunks or roots are on property lines then the owners own the tree or bush as tenants in common.  The trees and bushes will pass with the conveyance of land. 

2.      Fructus Industrialus - these comes from man’s industry - growing crops.  They are also called emblements which are annual crops (perrenial crops are also considered emblements).  These crops are considered to be personal property.  If a tenancy ends and the crops are not severed from the land, then the crops cannot be removed and belong to the landlord.  If severed and tenancy ends, then the crops are considered to be personal property.

VI. Conveyances

A.    Statutes usually hold that freehold estates can be conveyed by a deed instrument.  Writings are also usually acceptable as long as the writing satisfies the S/F.

B.     A sufficient memorandum (writing) must:
1.      Identify the parties
2.      Sufficiently describe the land conveyed - must provide a good lead as to the identity of the property sought to be conveyed.
a.       Patent Ambiguity - one appearing on the face of the document.  PER will be admissible to clear up the patent ambiguity.
b.      Latent Ambiguity - not apparent on the face of the document.  PER is also admissible in this situation.
3.      Price
4.      Promises on both sides (to convey and pay price)
5.      Signed by the party to be charged

C.     Oral Contracts - enforceable where:
1.   Purchaser pays the seller part or all of the purchase price and the buyer takes possession of the land, or
2.      Purchaser pays the seller part or all of the purchase price and the buyer makes improvements on the land.

D.    Delivery - also required to make conveyance effective.  Physical transfer is not necessary.  Rather, it is the grantor’s intent to convey (intent that the deed will have an operative effect).  Intent can be satisfied by words or conduct.
1.      Common situations:
a.      Grantor Retains deed or gives grantee gets physical possession
(1)  Where deed is in physical possession of grantee there is a rebuttable presumption that the deed has been delivered.
(2)  Where deed is in physical possession of grantor there is a presumption that the deed was not delivered.
b.   Deed is recorded - there is a presumption that a valid delivery was made.
2.      Majority holds that PER is always admissible to show the grantor’s intent.
3.      Conditional Delivery - a deed given to third party with instructions to give to grantee is presumed to be a valid delivery.
4.      Escrow Conditions - if not met then the deed remains with the grantor.

E.     Equitable Conversion Doctrine
1.      Applies where there is an enforceable obligation to sell land.  The purchaser is regarded as the equitable owner of the land and the seller (who still owns legal title) is regarded as the beneficial or equitable owner of personal property.

2.      If the vendor dies the real estate sales contract is not negated and the interest descends a personal property.
3.      If the purchaser dies then the right to receive the land goes to her heir but the duty to pay the purchase price is imposed upon the personal representative.

F.      Marketable Title - implied that vendor has marketable title.  If not marketable then the vendee can rescind the K. 

1.      Note that the deed supersedes the contract - so if the sale goes through and a deed is accepted without warranties of title the vendee has no redress.

2.      A purchaser may not rescind a land sale contract before the closing date.

3.      Defects which render title unmarketable
a.       Restrictive covenants
b.      Outstanding reverter rights
c.       Outstanding mortgages
d.      Easements on appreciable part of property
e.       Variation in names of grantee / grantor in chain of title
f.       Dower interests

G.    Boundary Line Agreements
1.      Judicial notice will be extended to boundary lines even if no writing complying with S/F.  So oral agreement between adjacent landowners to settle a boundary dispute is enforceable.

H.    Covenants in Deeds Respecting Title
1.      Breeched when delivered; do not run with the land: (present)
a.       Covenant of Seisen (guarantee that grantor owns the estate)
b.      Covenant of Right to Convey (guarantee that grantor owns the estate)
c.       Covenant Against Encumberances
2.      Breeched after delivery; run with the land and can be enforced by remote grantees who take from covenant grantee: (future)
a.       Covenant of Quiet Enjoyment (defends grantee covenantee against all lawful claims of grantor or 3rd parties who attempt to evict the grantee)
b.      Covenant of General Warranty (defends grantee covenantee against all lawful claims of grantor or 3rd parties who attempt to evict the grantee)
c.       Covenant for Further Assurances (grantor will do further acts to perfect title)
3.      A general warranty will cover the first five covenants.
4.      A special warrant deed will cover specific named covenants.
5.      A quitclaim warranty will cover no covenants / no warranties.

I.       Estoppel by Deed - representations made concerning the land to be transferred are binding on the grantor.

J.       Recording Systems

1.      Three types of recording acts:
a.       Pure Race - whoever records first prevails.
b.      Pure Notice - the subsequent BFP who pays value without notice of prior conveyance or encumberances on the property will prevail.
c.       Race-Notice JX - subsequent BFP who pays value without notice or prior conveyance prevails if they record first.
2.      Only BFPs are protected by recording statutes.
3.      Mortgages are also treated as purchasers and can be protected.

VII.     Mortgages

A.    An interest in land created by a written instrument providing security for performance of a debt.

B.     If the deed states “the buyer assumes the mortgage” then the buyer is personally liable to the bank for that mortgage debt.

C.     If the deed is silent to the existence of the mortgage or states that the land is subject to the mortgage then the buyer is not personally liable for the mortgage debt.

D.    Mortgages, like deeds must be recorded in order to protect the mortgagee.  A buyer could take the property free an clear of the mortgage if it is not recorded by the mortgagee.

E.     Equity of Redemption
1.      Refers to the interest of the mortgagor in a title jurisdiction after default.
2.      Where the mortgagor defaults, CL permits the mortgagor to payoff the mortgagee and recover the property.
3.      Statutory Redemption - most states permit the mortgagor during a set period of time to repay the bank the mortgage indebtedness , after foreclosure and get the value of the land or the proceeds from the foreclosure sale.