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Property

Terms in this set (75)

Fee Simple Absolute
largest estate. Can be sold, divided, devised, or inherited and has an indefinite or potentially indefinite duration.

Presumed unless there is express contrary intent. Words of inheritance are not necessary.

"To A" or "To A and his heirs"
Fee Tail.
virtually abolished in U.S. Today, attempted creation of fee tail creates fee simple absolute.
Defeasible Fee (3)
fee simple estate that can be terminated upon the happening of a stated event.

FORFEITURE

3 kinds of fee simples subject to potential forfeiture

1. fee simple determinable (with possibility of reverter)
2. fee simple subject to a condition subsequent (with right if re-entry)
3. fee simple subject to executory limitation (either 1or 2 above, but passes to TP)

**NOTE: words of mere desire, hope, or intention are insufficient to create a defeasable fee. Courts will not find a defeasible fee unless there is clear, durational language used.
ABSOLUTE restraints on alienation are void.

FOLLOWED by executory interest. NEVER a remainder.
Fee Simple Determinable (and possibility of reverter)
FSDPOR
A fee simple determinable terminates upon the happening of a stated event and AUTOMATICALLY reverts to the grantor. forfeiture is automatic.

It is created by durational language, such as "for so long as," "while," "during," or "until"

Fee simple determinable can be conveyed, but the grantee takes subject to the estate's being terminated by the specified event.

FSDPOR = Frank Sinatra didn't prefer orville redenbacher = fee simple determinable with the possibility of reverter
Possibility of reverter
whenever a grantor conveys a fee simple determinable, he automatically
Fee simple subject to condition subsequent - and right of reentry
estate in which the grantor reserves the right to terminate the estate upon the happening of a stated event
ex- the estate does not automatically terminate - the grantor must take some action.

NOT automatically terminated, but can be if stated condition manifests.

created using conditional words - "upon condition that," "provided that," "but if," "if it happens that."

#1 (clear durational language) and #2 (right to reentry - power of termination)
Fee simple subject to executory limitation
If a fee simple estate terminates upon the happening of a stated event (because it is determinable or subject to a condition subsequent) and then passes to a THIRD PARTY rather than reverting to the grantor.
Life estate
measured by the life or lives of 1or more persons. can be conveyed by operation of law or conveyance.

"the romantic estate"
Life estate pur autre vie
a life estate measured by the life other than the grantee's.

"to A for the life of B." A is known as a life tenant.
Doctrine of Waste**
life tenant is entitled to any ordinary uses and profits of the land, but cannot do anything that injures the future interest holders.

3 types:
1. affirmative (voluntary waste) = overt destruction of natural resources on the property, unless 1 of 4 exceptions apply = PURGE [Prior Use, Repairs, Grant, Exploitation]
2. permissive waste = neglect. land falls into disrepair.
3. ameliorative waste = change that benefits the property economically unless all future interest holders consent.
Future Interests - created by grantor
Three Future Interests Capable of Creation in the grantor:
1. possibility of reverter > accompanies only the fee simple determinable (FSDPOR)
2. Right of entry/power of termination > accompanies only the fee simple subject to a condition subsequent
3. Reversion > lesser duration of fee simple (but not one of the others listed above)
Future Interests in Transferees (other person)
1. vested remainder
2. contingent remainder (RAP)
3. executory interest (RAP)
Remainder
A future interest in a grantee (THIRD PERSON) that can become possessory on the natural expiration of the preceding estate.

caboose on a life estate.
Remainderman = sociable, patient and polite.
Remainders wait patiently for the present estate to NATURALLY END

It cannot divest a prior estate and it cannot follow a gap after the preceding estate. Must be expressly created n the instrument.

Either (1) vested or (2) contingent.
Vested Remainder
A remainder is vested if it is both created in an ascertained person and is NOT subject to any pre-requisite (condition precedent).
Contingent Remainder (RAP)
A remainder is contingent if it is created in an unascertained person or is subject to a pre-requisite (condition precedent), or both. BLACK CLOUD

Limiting doctrines:
1. rule of destructibility. At common law (historically), a contingent remainder was destroyed if it failed to vest before or upon the termination of the preceding estate. Abolished today.
2. Rule in Shelley's case. At common law, if the same instrument created a life estate in A, and gave the remainder only to A's heirs, the remainder was not recognized. A took the life estate AND the remainder. This rule is now abolished in most states.
3. Worthier Title. A remainder in the grantor's heirs is invalid and becomes a reversion in the grantor. (rule of construction. Grantor's intent applies).
3 ways for remainder to vest:

not subject to RAP.
1.indefeasibly vested remainder
created in an existing and ascertained person, and not subject to a condition precedent.

2, vested remainder subject to open
created in a class of persons (ex- children) that is certain to become possessory, but is subject for dimunition (by birth of additional persons) who will share in the remainder as a class. class is open if others can still join; closed if no others can join. Rule of conveniencce = class closes when any member can demand possession.

3. vested remainder subject to total divestment
vested remainder that is subject to a condition subsequent. [VERSUS contingent remainder = condition precedent = black cloud = also subject to RAP]
Executory Interest
Future interests in third parties that either divest a transferee's preceding freehold estate ("shifting interest") or follow a gap in possession or cut short a grantor's estate ("springing interests")

Shifting interest ALWAYS follows a defeasible fee and cuts short someone other than the grantor. SHIFTING = beneficiary of A's forfeiture. "To A and her heirs, but if B returns from Canada sometime next year, to B and his heirs."

SPRINGING = cuts short the grantor. "to A, if and when he becomes a lawyer."
Rule Against Perpetuities
Certain kinds of future interests are void if there is any possibility, however remote, that the given interest may vest more than 21 years after the death of a measuring life.
Four Step Technique to RAP:
1. determine which future interests have been created by the conveyance.
RAP only applies to contingent remainders, executory interests, and certain vested remainders subject to open.

2. Identify the conditions precedent to the vesting. What has to happen for the future interest holder to take?

3. find a measuring life. Look @ person alive at the date of tehe conveyance and ask whether the person's life or death is relevant to the condition's occurance.

4. Will we know, with certainty, within 21 years of the death of our measuring life, if our future interest holder(s) can or cannot take?
2 Bright Line Rules for RAP:
1. a gift to an open class that is conditioned on the members surviving to an age beyond 21 violates the common law RAP. "bad as to 1, bad as to all"

2. Many shifting executory interests violate the RAP. An executory interest with no limit on the time within which it must vest violates the RAP.

*a gift from 1 charity to another will never violate the RAP.
Reform of the common law RAP:
1. The "wait and see" or "second look" doctrine - under the majority reform effort, the validity of any suspect future interest is determined on the basis of the facts as they now exist at the end of the measuring life.

2. Uniform Statutory Rule Against Perpetuities (USRAP) - codifies the common law RAP and, in addition, provides for an alternative 90 year vesting period.

Both dotrines embrace the cy pres doctrine- court can reform an otherwise suspect interest in a way that most closely approximates grantor's intent that also complies with RAP. knocks down suspect age requirement to 21 to save the transfer.
Concurrent estates (3)
More than 1 person owns Blackacre.

1. joint tenancy
2. tenancy by the entirety (married)
2. tenancy in common
Joint Tenancy
2 or more own with the right of survivorship.

A joint tenant's interest is Alienable; NOT devisable or descendable (because of the right to survivorship).

to create, T-TIP:
1. at the same TIME
2. by the same TITLE (deed)
3. with IDENTICAL INTERESTS
4. rights to POSSESS the whole.

Grantor must clearly state the right to survivorship.

- to create, use of a straw
- to sever - SPAM (Sale, partition and mortgage)
a joint tenant can sell or transfer her interest during her lifetime, even in secret. But one joint tenant's sale severs the joint tenancy as to the seller's interest, and buyer is a tenant in common.
Doctrine of equitable conversion
"equity regards as done that which ought to be done"

once parties enter into a sale for land, the buyer is bound and bears the risk of loss.

In equity, a joint tenant's mere act of entering into a contract for the sale of her share will sever the joint tenancy, as to the contracting party's interest.

Joint tenancy is deemed severed on the date the contract is entered in to (NOT date of closing).
Tenancy by the Entirety
Between married partners ONLY, with the right of survivorship.

Created between married partners - engagement not allowed. 21 states recognized, and arises presumptively in any grant to married partners unless stated otherwise.

CAN'T TOUCH THIS!

Protected form of co-ownership: creditors of only 1 spouse can't touch this tenancy; and unilateral conveyance not allowed - neither tenant, acting alone, can defeat the right of survivorship by unilateral transfer to a TP.
Tenancy in Common
2 or more own with no right of survivorship.

Each co-tenant owns an individual part, and each has a right to possess the whole.

No right to survivorship rights - each interest is devisable, descendable, and alienable.

Court favors the TENANCY IN COMMON. Goes through probate.
Severance & Partition
3 variations:

1. Voluntary agreement - peaceful way to end the relationship

2. Partition in kind - court action for physical division of Blackacre (if in the best interest of ALL). Works best when Blackacre is sprawling acreage (vineyard, farm).

3. Forced sale - court action if in the best interests of all, where Blackacre is sold, and proceeds divided proportionately. If property doesn't lend itself to being divied up - physical building, etc.
Severance and Mortgages
Lien Theory: Majority of states follow. Joint tenant's execution of a mortgage on his or her interest will not sever the tenancy.

Title Theory of Mortgages: Minority. One joint tenant's execution of a mortgage or a lien on his or her share will sever the joint tenancy as to that now encumbered share only.
Rights and Duties of Co-Tenants
- each co-tenant is entitled to possess the whole. [wrongful exclusion is wrongful ouster]

- absent ouster, a co-tenant in exclusive possession is not liable to the others for rent.

- A co-tenant who leases all or part of the premises to a TP must ACCOUNT to his co-tenant giving their fair share of the rent income.

- unless the other co-tenants are oustered, one co-tenant in exclusive possession cannot acquire title by adverse possession at the exclusion of the others. missing hostility element (=ouster)

- a co-tenant making repairs enjoys a right to contribution for reasonable, necessary repairs, provided that she has told the other of the need. [proportional]

- there is no right to contribution for "improvements". However, at partition, the improving co-tenant is entitled to a credit entitled to any increase in value she caused [and vice versa - full liability for any decrease in value]

-
Leasehold
An estate in land, where the tenant has a present possessory interest in the leased premises and the landlord has a future interest (reversion)
Term of Years
Lease for a FIXED period (can be days)

- Termination date is known from the start.
- because termination date is known, no notice is needed to terminate.
- A term of years GREATER THAN 1 YEAR must be in WRITING (Sof)
Periodic Tenancy
Lease which continues for SUCCESSIVE intervals, until L or T give proper notice of termination.

- Must give proper notice to terminate, usually in writing, time @ least equal to the period itself (unless otherwise agreed).
*note - the periodic tenancy must end at the conclusion of a natural lease period.

- can be conveyed expressly or impliedly:
>lease is made with no mention of duration, but provision is made for the payment of RENT at set intervals.
>oral term of years that violates the statute of frauds.
> holdover: residential leases, if L elects to hold over a T who has wrongfully stayed on past the conclusion of the original lease.
Tenancy at Will
Tenancy for no fixed duration.

**Unless the parties EXPRESSLY AGREE to a tenancy at will, a court will treat this as an IMPLIED, PERIODIC TENANCY

Tenancy at will may be terminated by either party, at any time. HOWEVER, a reasonable demand to vacate is usually needed.
Tenancy at Sufferance
Created when Tenant has wrongfully held over past the expiration of the lease.

Wrongdoer is given a leashold estate ("tenancy at sufferance") to permit the Landlord to recover rent.

Tenancy @ sufferance is always short-lived - until L either evicts T, or elects to hold T to a new tenancy.
Tenant's Duties (3)
1) T's liability to TPs
> T is responsible for keeping premises in good repair.
> T is liable for injuries sustained by TPs invited, even where L promised to make repairs. T is liable in tort for ANY TPs invited.

2) T's duty to repair
> When lease is SILENT: T must maintain the premises and make routine repairs - ordinary wear and tear.
> T must not commit waste (volutnary, permissive, ameliorative)
> FIXTURES PASS WITH OWNERSHIP OF THE LAND. When a tenant removes a fixture, she commits voluntary waste. T MUST NOT REMOVE A FIXTURE, even if she installed it.

3) T's duty to pay rent
> If T breaches this duty and is in possession of the premises, landlord can evict or continue the relationship and sue for rent due.
> If L evicts, she is nonetheless entitled to rent from T (who is now a T in sufferance) until vacates.
> Landlord must not engage in self-help. Liable civilly and criminally.
> If T breaches and is out of possession, SIR
SIR (if T doesn't pay rent but is not possession of the premises)
1. Surrender
L chooses to treat T's abandonment as an implcit offer of surrendor. T shows by actions or words that she wants to give up the lease.
*if the unexpired term is greater than 1 year, the surrender must be in writing to satisfy the statute of frauds.

2. Ignore
minority view. ignore the abandonment and hold T responsible for the unpaid rent, just as if T were still there.

3. Re-let
Re-lease the premises on the wrongdoer tenant's behalf, and hold her liable for any deficiency.
Majority view: L must at least try to re-let (mitigation principle)
Fixtures
A once movable chattel that, by virtue of its annexation to realty, OBJECTIVELY shows the intent to permanently improve the realty.

Common examples:
-heating systems
-custom storm windows
-furnace
-certain lighting installations

**FIXTURES PASS WITH OWNERSHIP OF THE LAND. They stay put.

How to tell if a tenant installation qualifies as a fixture:
-express agreement controls
-if no agreement, T may remove a chattel she has installed so long as removal won't cause substantial harm to the premises.
-If removal will cause substantial damage, then in objective judgment T has shown the intent to install a fixture. The fixture stays put.
Landlord's Duties
1. Duty to deliver possession
> English/Majority view: L put T in actual possession of the premises [if @ the start of T's lease, a prior holdover is still in possession, L has breached and the new T gets damages].
> Tiny minority/American view: L need only give T legal possession, not ACTUAL possession.

**2. Implied covenant of quiet enjoyment
>applies across the board.
> breach by wrongful eviction (L wrongfully evicts T or excludes T from premises)
>breach by constructive eviction (SING)

3. Implied warranty of inhabitability
> applies only to residential leases. Non-waivable.
> The premises must be fit for basic dwelling. Basic living requirements must be met (heat, plumbing).
Elements of Constructive Eviction
Tenant must SING:

1. Substantial Interference:
Due to L's actions or failures permanent or chronic problem (ex-every time it rains, it floods in the apartment)

3. Notice:
T must notify L of the problem, and L must fail to fix it.

4. Goodbye / Get Out:
T must vacate with a reasonable amount of time after L fails to correct the problem.
Tenant's entitlements when Implied Warranty of Habitability is Breached
MR3

1. Move out and end the lease. (BUT NOT REQ) *difference with constructive eviction

2. Repair and Deduct (cost from future rent)

3. Reduce Rent (or withhold all rent until the court determines fair rental value - must be placed in an escrow account)

4. Remain (pay rent and seek money damages)
Retaliatory Eviction
If T lawfully reports L for housing code violations, L is barred from penalizing T

(ex- raising rent, ending the lease, harassing T, etc.)
Assignment
A complete transfer of the ENTIRE REMAINING TERM

T2 and L have privity of estate. L and T2 are liable to reach other for all of the covenants in the original lease that RUN WITH THE LAND. (ex - promises to pay rent, paint, repair, etc.). They are not in privity of K, unless T2 assumes all promises in the original lease.

T1 remains in privity of K only. (original promissory words). T1 is secondarily liable.
Sublease
Transfer where Tenant retains any part of the remaining term (other than a right to reenter upon breach)

L and sublessee are in neither privity of estate nor privity of K. They share no nexus. The relationship between L and T1 is fully intact.

T2 is liable to T1, and vice versa.
Landlord's Tort Liability
1. Common Law of Caveat Lessee
"tenant beware": In tort, L was under no duty to make the premises safe. But Tenant CLAPS:

EXCEPTIONS:
> Common Areas - even in tort, Lmust maintain all common areas (hallways and stairs)
> Latent Defects Rule - L must warn T of hidden defects that L knows about or should know about (merely a duty to warn, not repair)
> Assumption of Repairs - but if a landlord makes repairs negligently, L is liable
> Public Use Rule - L who leases public space (convention hall), and who should know, because of the nature of the defect and not repair, is liable for any defects on the premises.
> Short term lease of furnished dwelling - L is liable for any defect on site.
Servitudes
...
Easements (IPE)
nonpossessory property interest that entitles its holder to some form of use or enjoyment of another's land, called the SERVIENT tenement.

Can be affirmatifvfe or negative.

Appurtenant- passes with the benefited land. Must be dominant (benefited by easement) and service the tenement (subject to easement right). Burden will also pass with serving estate unless new owner is BFP with no notice of easement.

In gross- holder acquires right to use the servient tenement independent of another tract of land
Negative easements (4-5)
entitles its holder to prevent the servient landowner from doing something that would otherwise be permissible. Generally recognized in only 4 categories:
LASS
1.Light
2. Air
3. Support
4. Stream water from an artificial flow
5.* scenic view

NEGATIVE EASEMENTS CAN ONLY BE CREATED EXPRESSLY IN WRITING, SIGNED BY THE GRANTOR. There is no natural or automatic right to a negative easement.

- urban land use planning
Affirmative Easement
The right to do something on servient land.

ways to create: PING

1. Prescription
An easement acquired by satisfying the elements of adverse possession (COAH). acquire use - not title. (continuous use for statutory period, open and notorious, actual use [not exlusive reqd], hostile without servient owner's consent). ex - cutting across grass. permiss

2. Implication
(w/o writing). Implied from existing use. 1. previous use was apparent, 2. the parties expected it would continue because it is reasonably necessary to the dominant land's use and enjoyment.

3. Necessity
landlocked setting. An easement of right of way will be implied by necessity if grantor conveys a portion of his land with no way out, except over part of his remaining land.

4. Grant.
An easement to endure for more than 1 year must be in writing that complies with the formal elements of a deed. (called deed of easement)
Appurtenant Easement
APPURTENANT = relevant to.

The easement is appurtenant when it benefits its holder in his physical use or enjoyment of his property.

It takes 2 - parcels of land are involved. The dominant tenement gets the benefit; the servient tenement bears the burden.

(ex - B has an easement relevant to B's dominant tenement. B derives benefit/advantage)
Easement in Gross
1 parcel.

The easement is in gross if it confers upon its holder only some personal or pecuniary advantage that is not related to his use or enjoyment of his land.

* Servient land is burdened, but there is no dominant tenement.

Common examples - right to place billboard, lay power lines on another's land; swim in another's pond.
Transfers of Easements***
Appurtenant easement passes automatically with the dominant tenement, regardless of whether it is even mentioned in the conveyance.
>the burden of the easement appurtenant also passes automatically with the servient estate, unless the new owner is a BONA FIDE PURCHASER without notice.

An easement in gross is not transferrable unless it is for commercial purposes.
Terminating an Easement
END CRAMP

1. Estoppel.
Servient owner materially changes his or her position in reasonable reliance on the easement holder's assurances that the easement will not be enforced.

2. Necessity.
easements created by necessity expire as soon as the need ends.
However, if the easement is attributable to necessity and was created by an express grant, it persists, even when the need ends.

3. Destruction.
destruction of the servient land, other than through the willful conduct of the servient owner, ends the easement.

4. Condemnation of the servient estate.
Condemnation by eminent domain ends the easement.

5. Release** most common
Written release, given by the easement holder to the servient owner

6. Abandonment *
Easement holder must demonstrate by physical action the intent to never use the easement again. (nonuse is not sufficient to terminate abandonment)

7. Merger Doctrine
The easement is extinguished when title to the easement and title to servient land become bested in the same person. If complete unity of title is achieved, the easemement

8. Prescription
Servient owner may extinguish the easement by interfering with it in accordance with the elements of adverse possession (COAH - hostile to the easement owner)
License
A mere privilege to enter another's land for a dilieated / proscribed purpose.

informal; not subject to SOF. However they are freely revocable at the will of the licensor, unless estoppel applies.

Classic: tickets and neighbors talking by the fence

**An oral easement is unenforceable because it violates the statute of frauds. An oral easement creates instead a license that is freely revocable.

- estoppel will apply to bar revocation only when the licensee has invested substantial time, money, or both, in reasonable reliance on the license's continuation.
Profit
- the profit entitles the holder to enter the servient land and take from it the soil or some substance from the soil (timber, minerals, oil)

- shares all the easement rules.
Covenant
a promise to do or not do something related to the land.

It is UNLIKE an easement because it is not the grant of a property interest, but rather a K or promise regarding the land.

Negative (restrictive) covenants - a promise to refrain from doing something related to the land. ("I promise not to build for commercial purposes.")

Affirmative covenant - a promise to do something related to land.

Covenants run with the land when they are capable of binding successors. 1 tract of land is burdened by the promise and another is benefited.
Negative Covenant versus Equitable Servitude
-common overlap. How to know how to construe:

Based on remedy PL seeks.

$ damages = covenant (legal device with legal relief)
injunction = equitable servitude (
When Covenants Run with the land - & bind successors:
Analysis:

1. Do the burden side first. WITHN

Elements necessary for the burden side to run:
a) Writing
b) Intent (for covenant to run w/ land)
c) Touch and concerns the land
>the promise must affect the parties' legal relations as landowners and not simply members of the community @ large.
>covenants to pay money in connection with the land (such as homeowner's association), and covenants not to complete DO touch and concern the land.
d) Horizontal and Vertical privity (see below)
e) Notice
A1 had notice of the promise when she took (successor of the original burdern party A)

--> If burden runs from A to A-1, go to step 2:

2. Does the Benefit of A's promise to B run from B to B1? WITV

a) Writing
> original promise between A and B was in writing.
b)Intent
> The original parties A and B intended that the benefit would run.
c) Touch and Concern
> The promise affects the parties as landowners.
d) Vertical Privity
> a non-hostile nexus between B and B1.

--> Horizontal privity is not required for the benefit to run. That's why it's easier!

*if only one side is tested, just have to do 1.
Privity
Any non-hostile nexus between possessors
Horizontal Privity
Nexus between A and B - the original parties.

It requires that they be in succession of estate meaning that they were in a grantor-ee relationship; or landlord-tenant; or mortgagor-ee relationship.

When this promise was made, A was conveying B's parcel to B; debtor/creditor, etc.

Horizontal privity is the likely sticking point. It's absence is the reason many burdens won't run.
Vertical privity
The nexus between A and A1.

The only time vertical privity will be absent is if A1acquired her interest though adverse possession.

It simply requires some non-hostile nexus, such as blood, contract, devise or descent.
Equitable Servitude that binds successors:
Analysis:

The equitable servitude is a promise that equity will enforce against successors. It is accompanied by injuncitive relief.

WITNES

1) writing
2) Intent (parties intended the promise would bind successors)
3) touch and concern
>promise affects the parties as landowners
4) notice
>successors of the burdened land had notice of the promise

*Privity is not required to bind successors.
Implied equitable servitude
- subdivision example - scheme of residential development.

Elements of Common Scheme Doctrine
Under the common scheme doctrine, the court will imply a reciprocal negative servitude (aka the implied equitable servitude) to hold the unrestricted lot holder to the restrictive covenant (contained in the predecessor deed).

There are three forms of NOTICE potentially imputed to DEF (imputed to DEF irrespective of DEF's actual notice): AIR
1. Actual notice = DEF knew of the coming restriction
2. Inquiry notice = lay of the land should have given notice (i.e. residential area)
3. Record notice = form of notice imputed to buyers on the basis of the publicly recorded documents.

Courts are split on record notice. some take view that subsequent buyer is on record notice of the contents of prior deeds transferred to others by a common grantor. Better view is that buyer is not on notice of contents of prior deeds - less burdensome and more efficient for DEF's title searcher.
Equitable Defenses to Enforcement of an Equitable Servitude
changed conditions doctrine

> changed circumstances alleged by the party seeking release from the terms of an equitable servitude must be so pervasive that the entire area has changed. (limited $ not good enough)
Elements of Adverse Possesion
Possession for a statutorily prescribed period of time can ripen into title if elements are met.

COAH

1. continuous for the statutory period
2. Open and Notorious (sort of possession usual owner would make under the circumstances)
3. Actual entry giving exclusive possession
4. Hostile (no consent from owner to be there)

Possessor's subjective state of mind is irrelevant.
Tacking
1 adverse possessor can tack on to his time with the land to his predecessor's time, as long as there is privity (non-hostile nexus between possessors, like blood, K, deed, or will).

Tacking is not allowed when there has been an ouster. Ouster defeats privity.
Disabilities and Adverse Possession
- Statute of limitations will not run against a true owner who is afflicted by a disability at THE START of adverse possession.

disabilities include insanity, infancy, and imprisonment.
Ways to create an easement - IPE
Implication (quasi, subdivision, necessity)
Prescription (adverse possession)
Express (in writing and signed by servient)
Difference between real covenant and equitable servitude
Relief.

Real covenant = damages

Equitable servitude = injunction
Real covenants - burden to run (PINT)
Writing
Privity (horizontal and vertical)
Intent
Notice (actual, record, inquiry)
Touches and concerns the land
Real covenants - benefit to run (VIT)
Writing
Vertical privity
Intent
Touches and concerns the land
Equitable servitude - burden to run (INT)
Writing
Intent
Notice
Touches and concerns the land)
Equitable servitude - benefit to run (IT)
Writing
Intent
Touches and concerns the land
Notice statute (at the time of taking) (ma and ri)
Subsequent BFP wins.

A subsequent BFP (pays value and without notice of prior instrument) prevails over a prior grantee who failed to record. Because BFP had no notice when she took.

Subsequent BFP protected whether she records at all. She wins and will have priority over any later recordings.

Typical language: "purchaser for value without notice thereof, unless it is recorded."
Race-notice statute
Subsequent BFP who records first wins.

Subsequent BFP is protected only if she takes without notice AND records before the prior grantee.

Typical language: "purchaser for value without notice thereof whose conveyance is FIRST recorded."
Race statute
First to record wins.

Notice is completely irrelevant. The first to record wins. Rare.

Typical language: " purchaser whose conveyance is first recorded."
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