Real property

partial actual eviction

Partial actual eviction by the landlord relieves the tenant of the obligation to pay rent for the entire premises. Every lease contains an implied covenant that neither the landlord nor someone with paramount title will interfere with the tenant's quiet enjoyment and possession of the premises. This covenant is breached by the tenant's total or partial actual eviction from the leased premises. Partial actual eviction occurs when the tenant is excluded from only part of the leased premises. Even though the tenant continues in possession of the remainder of the premises, partial eviction by the landlord relieves the tenant of the obligation to pay rent for the entire premises rather than for only the portion of the premises from which he was evicted.

Paramount title holder takes possession of part of premises

If a paramount title holder takes possession of an unused barn on the leased premises and stores farm equipment in it, the tenant must continue to pay a portion of the rent. Every lease contains an implied covenant that neither the landlord nor someone with paramount title will interfere with the tenant's quiet enjoyment and possession of the premises. This covenant is breached by the tenant's total or partial actual eviction from the leased premises. Total actual eviction occurs when the landlord or a paramount title holder excludes the tenant from the entire leased premises. This terminates the tenant's obligation to pay rent. Partial actual eviction occurs when the tenant is excluded from only part of the leased premises. Partial eviction by the landlord relieves the tenant of the obligation to pay rent for the entire premises, even though the tenant continues in possession of the remainder of the premises. Partial eviction by a paramount title holder results in an apportionment of rent; i.e., the tenant is liable for the reasonable rental value of the portion that he continues to possess. A paramount title holder's taking possession of an unused barn constitutes partial actual eviction. Thus, rent will be apportioned.

Implied warranty of habitability

a tenant may not waive the implied warranty of habitability, because such a waiver is against public policy. Under the implied warranty of habitability, a landlord assures that the premises are suitable for human residence. The standard usually applied is the local housing code. One of the reasons for implying a covenant of habitability is to encourage enforcement of the housing code by tenants. Thus, even if the tenant accepts the premises "as is" or covenants to repair, the landlord's obligations under the implied warranty of habitability are usually held to be nonwaivable.

Fair housing act

The Fair Housing Act bars discrimination based on race, ethnicity, religion, national origin, gender, and disability in the sale or rental of a dwelling.

Disclosure of a latent defect

If, at the time the lease is entered into, the landlord knows of a dangerous condition that the tenant could not discover upon reasonable inspection, the landlord has a duty to disclose the dangerous condition. Failure to disclose the information about the condition results in liability for any injury resulting from the condition. Because the landlord knew of the dangerous electrical problem at the time he leased the premises to the artist and did not disclose it to either the artist or the sculptor, he is liable for any injuries resulting from that condition.

Sub lease

Rather, a complete transfer of a tenant's entire remaining lease term is an assignment, and a transfer retaining any part thereof is a sublease. Here, although T "assigned" his interest to T2, he transferred only one of the remaining two years of the lease. Thus, the transfer is a sublease rather than an assignment.

Covenants against assignment and lease

If a landlord consents to one transfer that violates a covenant against assignment or sublease, he waives his right to avoid future transfers. This is the Rule in Dumpor's Case. The landlord may reserve the right to avoid future transfers, but such reservation must take place at the time of granting consent.

Tenancy at will

A tenancy at will is a leasehold estate that is terminable at the will of either the landlord or the tenant. Such a tenancy terminates by operation of law if: 1. Either party dies; 2. The tenant commits waste; 3. The tenant attempts to assign his tenancy; 4. The landlord transfers her interest in the property; or 5. The landlord executes a term lease to a third person.

Assignment

A complete transfer of the entire remaining lease term constitutes an assignment of the lease. If the tenant retains any part of the remaining lease term, other than a right of reentry for breach of the original lease terms, the transfer is a sublease. Here, T transferred the remaining four years of the lease to T2. By the slight majority view, T's reservation of a right of reentry does not result in a sublease, but rather is still an assignment.

Cost of repair covenant after landlord sold the property

A landlord's promise in a lease to maintain the property does not terminate because the property is sold. Although no longer in privity of estate, the original landlord and tenant remain in privity of contract, and the original landlord remains liable on the covenant unless there is a novation. A novation substitutes a new party for an original party to the contract. It requires the assent of all parties and completely releases the original party. Because neither the auctioneer nor the buyer has agreed to a novation, the landlord remains liable for the covenant because he and the auctioneer remain in privity of contract even after the sale. Thus, the promise to repair can be enforced against the landlord. When leased property is sold, the purchaser may be liable for his predecessor's promises if the promise runs with the land. A covenant in a lease runs with the land if the parties to the lease so intend and the covenant touches and concerns the land. Generally, promises to do a physical act, such as maintain or repair the property, are considered to run with the land. Thus, the buyer is liable because he is in privity of estate with the auctioneer and the covenant to repair runs with the land.

Prescriptive easement

Exclusive use is not required in order to acquire a prescriptive easement. Acquiring a prescriptive easement is analogous to acquiring property by adverse possession, except that the use need not be exclusive (i.e., the user may share the use with the owner or other easement claimants). The use must be: 1. Open and notorious; 2. Adverse; and 3. Continuous and uninterrupted for the statutory period.

Easement surcharged

If an easement is said to be surcharged, this means the easement's legal scope was exceeded. The holder of an easement has the right to use another's land (i.e., the servient tenement), but has no right to possess the land. The scope of an easement is determined by the reasonable intent of the original parties, and when the scope has been specified, these specifics will govern. However, when an easement's scope has been set out only in general language, courts will interpret it to accommodate the holder's present and future reasonable needs. In either event, if the easement holder uses the easement in a way that exceeds its legal scope, the easement is surcharged. The servient landowner may enjoin the excess use and possibly sue for damages if the land has been harmed. However, the easement does NOT terminate by operation of law, nor does such use give the servient owner a power of termination.

Termination of easement

Condemnation of the servient estate will terminate an easement. The easement holder may be entitled to compensation for the value lost.

non use of easement

Yes, a long period of nonuse is sufficient to terminate an easement if it is accompanied by other evidence of intent to abandon the easement (e.g., the easement holder erects a permanent structure blocking off the easement). However, a long period of nonuse on its own, even if it continues for the statutory period, is insufficient to constitute abandonment.

Transfer of easement with property

An easement may be implied if, prior to the time the tract is divided, a use exists on the "servient part" that is reasonably necessary for the enjoyment of the "dominant part," and a court determines that the parties intended the use to continue after division of the property. To give rise to an easement, a use must be apparent and continuous at the time the tract is divided. In this case, the landowner used the servient part of his property (the southern parcel) to run an overhead power line to the dominant part of his property (the northern parcel). Overhead wires are clearly visible and would be readily discoverable on reasonable inspection. The lines are, therefore, apparent. The use must also be reasonably necessary. Whether a use is reasonably necessary depends on many factors, including the cost and difficulty of the alternatives. This use was reasonably necessary to the enjoyment of the dominant parcel because electricity is important to the enjoyment of the property, and the cost (100 times as much) and difficulty of the alternatives are excessive. Thus, the fact that the use of the southern parcel is reasonably necessary would bolster the brother's case.

License v. easement

Because an easement is an interest in land, the Statute of Frauds applies. Here, the agreement between the landowner and the neighbor was not in writing; thus, the Statute of Frauds requirements for the creation of an express easement were not met. Therefore, (A) is incorrect. (B) is incorrect because an easement by necessity is created when the owner of land sells a part of it and deprives the part sold of access to the public road. Here, the facts do not indicate that the landowner's and the neighbor's parcels were once part of a common tract, and the landowner has an alternate, albeit inconvenient, way to access the highway-the one-lane road. Thus, the landowner does not have an easement by necessity. (C) is incorrect because the landowner's use of the land was permissive. To acquire a prescriptive easement, the use must be open and notorious, adverse, and continuous and uninterrupted for the statutory period. Although the landowner used the strip for the requisite 10-year period, she does not meet the adverse requirement necessary to obtain a prescriptive easement.

Equitable servitude

Where a promise regarding land use is a negative one — i.e., one forbidding certain uses — the promise is called an “equitable servitude.” An equitable servitude is not enforceable by the owner of a particular parcel unless the original parties intended to benefit that particular parcel.

An equitable servitude is a covenant (i.e., a promise to do or not do something on the land) that, regardless of whether it runs with the land at law, can be enforced in equity against assignees of the burdened land who have notice of it. Generally, equitable servitudes are created by covenants contained in a writing that satisfies the Statute of Frauds. However, in the absence of a writing, reciprocal negative servitudes may be implied if:

1. There is a common scheme for development (i.e., a plan existing at the time sales of the subdivision parcels began that all parcels be developed within the terms of the negative covenant); and 2. The grantee had actual, record, or inquiry notice of the covenant.

Vertical privity between the covenantor and their successor in interest is not required for the burden of an equitable servitude to run to successors in interest.

The burden of an equitable servitude will run to successors in interest if: 1. The covenanting parties intended that successors in interest be bound by the covenant; 2. The successor in interest has notice of the covenant (if they've given value); and 3. The covenant touches and concerns the land (that is, it benefits the covenantor and their successor in their use and enjoyment of the burdened land).

Reciprocal negative servitudes

When a developer subdivides land into several parcels and some of the deeds contain negative covenants but some do not, negative covenants or equitable servitudes binding all the parcels in the subdivision may be implied under the doctrine of "reciprocal negative servitudes." Two requirements must be met before reciprocal negative servitudes will be implied: (i) a common scheme for development, and (ii) notice of the covenants. The second requirement may be satisfied by actual notice, record notice, or inquiry notice. Here, the buyer has not been given actual notice, and the antenna restriction is not so obvious that the appearance of the neighborhood would provide the buyer with inquiry notice. Finally, the buyer has no record of the restriction in his chain of title to establish record notice. If the buyer had been the first purchaser of the lot, some courts might require him to read all deeds given by a common grantor, but the better view does not require such a search. In any case, the buyer's grantor here is the homeowner, and the restriction was not contained in her deed; the buyer thus does not have record notice of it and is not bound.

adverse possession - tacking

For purposes of determining title by adverse possession, tacking is not available when one adverse claimant ousts the other or the first claimant abandons and the next claimant goes into possession. Periods of adverse possession between two successive claimants may be tacked together to make up the full statutory period if there is privity of possession between the claimants. Privity is satisfied if the first adverse claimant purports to transfer the land to the next; i.e., the subsequent possessor takes by descent, by devise, or by deed purporting to convey title.

Adverse possession and remainder

If during A's lifetime, X enters into actual, exclusive possession that is open and notorious and hostile for the statutory period, X will not obtain title to the land, but X will acquire A's life estate. If a landowner does not commence an action to eject a would-be adverse possessor before the statute of limitations expires, she is barred from suing for ejectment, and title vests in the possessor. However, the statute of limitations does not run against the holder of a future interest (e.g., remainder, reversion) until her interest becomes possessory. The future interest holder has no right to possession until the prior present estate terminates, and thus no cause of action for ejectment accrues until that time. Here, X will acquire A's life estate by adverse possession (i.e., a life estate pur autre vie, measured by A's life), but not B's remainder, which remains nonpossessory while A is living. Thus, upon A's death, X's interest will terminate.

Adverse possession and real covenant

If an adverse possessor uses land in violation of a recorded real covenant for the limitations period, she takes title free of the real covenant. The nature of the title obtained through adverse possession depends on the occupier's activities on the land. If an adverse possessor uses the land in violation of a real covenant (i.e., a written promise to do or refrain from doing something on the land), she takes title free of the covenant EVEN IF she had knowledge of it. However, if she complies with the covenant for the statutory period, she takes title subject to the real covenant. In either case, if an adverse possessor uses land for the limitations period, she DOES take title to the land.

Whether title unmarketable

(1) Right of way easement - the right-of-way easement would have been visible at the time of the contract;

there are some types of easements whose existence so materially reduces the value of the fee simple that the easement does make the title unmarketable. But most “right of way” easements merely give an adjacent landowner the ability to get to the public road, and in this situation the easement’s existence will generally be visible to anyone who inspects the property when the contract is signed (since there will almost always be some visible indication — like a pathway, and/or the otherwise land-locked nature of the dominant parcel — of the easement’s existence). Virtually all courts hold that in this situation of a visible pathway to the public road, the buyer will be treated as having agreed in the contract to accept the property subject to that easement

and

(2) the unsatisfied mortgage can be paid off by the seller at the closing out of the sale proceeds.

(3) restrictive covenant - a third party’s right to enforce a restrictive covenant on the land renders the title unmarketable. Unless the contract provides to the contrary, the law will imply that the seller will provide the buyer with a marketable title on the date of closing. A marketable title is not a perfect title, but rather, a title a court will force an unwilling buyer to purchase. A right in the land held by a third party, such as the right to enforce a restrictive covenant, renders the title unmarketable; consequently, the buyer here need not purchase the land.

(4) no access to public right of way - The warranty of marketable title was likely breached in this situation because the lot lacked access to a public right-of-way. However, the time for a buyer to raise an objection based on failure to convey marketable title is before accepting the deed. In this fact pattern, the colleague did not challenge the conveyance until after the deed was delivered. At this stage, any challenge by the buyer must be based on the title covenant contained in the deed. Since the niece had title to the land she conveyed and there are no encumbrances on the land, the title covenants (which include superiority of title, seisin, right to convey, quiet enjoyment, and the general warranty) have not been breached. Because access to a public right-of-way is not required under any of the title covenants, the colleague has no claim against the niece that can be raised at this point

Vested remainder (A’s for life and when A died, land was to go to B and her heirs. B has a vested remainder)

vested remainders are capable of being left by will (devised)

Step 1: Life estate - it can either be followed by a ‘reversion’ or ‘remainder’

Step 2: vested remainder - fee simple. ‘and her heirs’ adds nothing - the property will go to B’s heirs if B doesn’t transfer the property to someone else or devise it to someone else.

Vested remainder - A remainder is vested if it “belong[s] to an ascertainable person and there are no conditions precedent that must be satisfied before the remainder is certain to become possessory.” (no condition precedent)

termination of easement by merger

A servitude is terminated when all the benefits and burdens come into a single ownership. eg, owner of servient estate bought the dominant estate.

once an easement is extinguished, it can be “revived” only by an affirmative act that would have sufficed to create that easement “from scratch” had it never existed

Modification of mortgage and priority

when a senior mortgage is modified in a way that is not detrimental to the junior mortgage, the senior mortgage’s priority is not changed. the senior mortgage maintains its priority as long as the modification was not “materially prejudicial to the holders of [the junior] interests.”

There is a strong presumption under this section that a time extension on a senior mortgage or obligation, standing alone, is not materially prejudicial to intervening interests.”

Adverse possession and tenants in common

adverse possessors who co-occupy a property typically take as tenants in common

Adverse possession - i) open, notorious and visible ii) actual iii) continuous iv) hostile and v) for the statutory period

pre-payment prohibition and pre-payment fee

There is no common-law rule against either contractual prepayment prohibitions or contractual prepayment fee provisions. Nor do practically any states have statutes making either type of provision unenforceable, at least in the area of commercial mortgages (as opposed to single-family residential mortgages).

Doctrine of ademption

“Ademption” refers to the failure (or extinction) of a specific bequest by reason of the fact that the specific property bequeathed is no longer in the testator’s estate at the time of death. The modern trend (and that of the Third Restatement) is to apply the “intent” theory of ademption, under which a specific devise will fail if the specifically-devised property is not in the testator’s estate at death, “unless the evidence establishes that failure would be inconsistent with the testator’s intent[.] ”

Doctrine of lapse

The doctrine of “lapse” deals with the situation in which a will makes a bequest to a person (the devisee) who is living at the time the will is executed, but dies before the testator. If the lapse doctrine applies, the bequest is extinguished. In most states, an “antilapse statute” provides that where a bequest is made to a descendant of the grandparent of the testator, if that descendant/devisee dies before the testator, the gift does not lapse, and goes to the devisee’s descendants who do survive the testator.

Oral rescission of land sale contracts

“Notwithstanding the Statute of Frauds, all unperformed duties under an enforceable contract may be discharged by an oral agreement of rescission.”

Extinguishment of easement

Once an easement has been created, the easement is an interest in land, and can only be extinguished by one of a relatively small number of events (e.g., a written release signed by the owner of the benefited parcel, abandonment, merger of the benefited and burdened parcels, extinguishment by adverse possession, etc.).

Once an easement comes into existence, both the benefit and the burden of that easement pass with the benefited or burdened parcel, even if the conveyance of the parcel doesn’t mention the easement’s existence.

Specific performance for land sale contracts

(1) vendees in land contracts have a right of assignment unless the contract provides otherwise; and (2) a buyer of land is generally entitled to specific performance, on the theory that each parcel of land is unique.

Contract can be assigned except -

(a) the substitution of a right of the assignee for the right of the assignor would materially change the duty of the obligor, or materially increase the burden or risk imposed on him by his contract, or materially impair his chance of obtaining return performance, or materially reduce its value to him, or

(b) the assignment is forbidden by statute or is otherwise inoperative on grounds of public policy, or

(c) assignment is validly precluded by contract.

Deed in lieu of foreclosure

transferring a deed back to the mortgagee in lieu of foreclosure is a valid way to resolve a mortgage default, assuming there is no respect in which either the transfer or the overall transaction is unconscionable or otherwise unfair.

DILs are generally enforceable — and not against public policy — since they save both parties the time and expense of foreclosure. However, a DIL by a homeowner/occupant is like any other consumer transaction — if a court later concludes that the transaction was tainted by undue pressure, fraud, unconscionability, duress, or grossly inadequate consideration, the court is likely to exercise its power to set aside the transaction.

Doctrine of equitable redemption

In mortgage law, the doctrine of equitable redemption allows a junior mortgagee or lienholder to pay off the (senior) mortgage, and thereby succeed to the senior mortgagee’s rights. This gives the holder of the junior interest the right to protect his own position.

The equitable right of redemption allows a landowner to prevent a foreclosure sale by paying the amount due on the mortgage. However, the landowner can only exercise this right after foreclosure, but before the foreclosure sale. Since we are told that the foreclosure sale has already occurred, the man will no longer have the option of exercising his right to equitable redemption

Warranty deed and subsequent buyer

The relevant case law establishes that in those instances where the subsequent buyer may recover for breach of the warranty, direct economic loss from the breach is indeed the type of loss for which recovery is most likely to be available.

Responsibility of life tenant

a life tenant has the obligation to pay all current charges, including property taxes, mortgage interest, and the cost of maintenance.

However, a life tenant is liable to the holder of the future interest for property taxes only to the extent of the rents received, or the fair rental value if the life tenant occupies it.

Deed poll

According to the terms of the deed, the developer was assuming the mortgage obligation as part of his consideration for the property. The deed was a “deed poll,” i.e., a deed signed only by the grantor (here, the landowner). When a grantee accepts a deed poll with knowledge of its contents, he is deemed to have agreed to all conditions in it. So the developer will be deemed to have made the promise of assumption recited in the deed

Death escrow

A death escrow is an arrangement in which the grantor hands a deed to a custodian for delivery on the grantor’s death. But for a gratuitous death escrow to be valid as a form of delivery, the grantor must place the deed beyond his control, by giving up all power to undo the arrangement in the future. This explicit power to recall the deed was enough to prevent the man from having placed the deed beyond his control.

Equitable servitude - covenant

Statute of frauds - First, the deed creating the servitude had to satisfy the Statute of Frauds. A servitude that is contained in a “deed poll” (i.e., a deed signed by the grantor and accepted by the grantee, but not signed by the latter) is deemed to satisfy the Statute of Frauds as against the grantee.

Touches and concern the land and runs with the land - Next, the requirements for creating a servitude (i.e., a restriction whose burden and benefit would both run with the land) were satisfied, because: (1) the building restriction “touches and concerns” both the burdened property and the benefited property (as to the latter, what’s being protected is expressly stated to be the river view from the building on the lot retained by the businesswoman); and (2) the fact that the deed placed the no-development obligation on the grantee and “his heirs [and] assigns” makes it clear that both parties to that deed intended that the obligation would be binding on anyone who took from the grantee

Actual or constructive notice - An equitable servitude is binding on the burden side only on someone who had, at the time he took, either actual or constructive notice of the servitude. Since the restriction was contained in the deed to the grantee, and that deed was properly recorded by the grantee, the cousin is deemed to have had constructive notice, of the “record notice” variety, at the moment he took.

constructive notice is adequate for equitable servitudes.

Enforced only by a class on who original parties intended to confer enforcement rights - An equitable servitude may be enforced only by a member of a class on whom the original parties who created the servitude intended to confer enforcement rights. Where the plaintiff is the present owner of a parcel that was originally intended to be benefitted by the restriction, this requirement is met.

Variance

A variance is essentially a waiver of some restriction that the applicable zoning act would otherwise impose. To get a variance, the owner must convince the zoning appeals board that without the variance, the owner would suffer an unnecessary hardship in the use of his land

an owner is especially likely to be granted a use variance when her property is at the edge of one zoning district, and the proposed use would be allowed in the immediately adjacent district.

Equitable conversion

The equitable conversion doctrine, when it applies, supplies special rules for dealing with unexpected events that occur during the “executory period” of a contract for the sale of real estate, that is, the time between when the contract is signed and when the actual conveyance is made. In general, the doctrine holds that “once the parties have entered into a contract that equity would specifically enforce, the buyer’s interest in the contract is converted into real estate and the seller’s interest to personal property.”

Where the seller dies during the gap between contract and closing, application of equitable conversion means that at the moment of death the seller’s estate is no longer deemed to hold the real estate, but instead to hold an interest in the eventual sale proceeds, an interest that constitutes personal property.

Life estate holder and fixtures

When the holder of a life estate (or a tenant for years) annexes a chattel (commonly called a “fixture”) to the real estate, and does not intend to make a permanent annexation, the holder or her representative is permitted to remove the fixture before or soon after the end of the estate, if removal can be done without causing substantial injury to the real estate or substantial destruction of the fixture itself

Tickets to a public function

ticket to a sporting event or other public function is virtually always considered a license rather than an easement. A license is a right to use the licensor’s land that is revocable at the will of the licensor. Because she held only a license, that interest was revocable at the will of the licensor.

Notice of easement to subsequent purchaser

Under a recording statute like the one here, a subsequent BFP prevails over a prior grantee who failed to record by the time of the subsequent grant. But the statute gives a subsequent purchaser protection only if she had no actual or constructive notice at the time of the conveyance.

The subsequent grantee will be deemed to have notice not only of matters of which he has “actual” notice, and of matters that are shown by the public records (“record notice”), but also of any matter as to which the grantee is (or should be) in possession of facts that would lead the grantee to make an investigation. This is called “inquiry notice.” One source of inquiry notice is that if the property is in possession of one other than the record owner, the prospective grantee is under a duty to inquire about the facts that put that person into possession (since the reason may be that the possessor has an unrecorded interest).

Rule against perpetuities

right to purchase might not vest or fail until more than 21 years after any measuring life.

Oral contract for land sale

The Statute of Frauds requires that a promise to transfer or buy any interest in land be in writing. However, even if an oral contract for the transfer of an interest in land is not enforceable at the time it is made due to the lack of a writing, subsequent acts by the parties may render it enforceable. Under the “part performance” exception to the Statute of Frauds, a party who takes action in reliance on the oral agreement will be permitted to gain enforcement of it, provided that the acts taken in part performance are “unequivocally referable” to the alleged oral agreement, i.e., are not adequately explained by some other facet of the parties’ relationship.

if all that had happened was that after the oral agreement, the tenant had kept making approximately the same monthly payment to the landlord that she had always made, the tenant would have been out of luck — the court would likely have ruled that these payments could simply have been continued rents, and were therefore not “unequivocally referable” to the purchase agreement. But here, the tenant paid the $25,000 in original cash, the taxes, the insurance premiums, and the maintenance costs — all things that she hadn’t paid before thef

Transfer of Future interest

The owner of a future interest in land may convey that interest, either in their will or inter vivos.

Easement by express grant

There are various ways of creating an easement. One of those ways is by express grant. That is what happened here. Although the investor might argue that the grant of a “right of way” was the grant of a revocable license rather than of an easement, this argument would fail. The reference in the document to the farmer “and her heirs” would convince a court that a permanent interest in land (i.e., an easement), not a revocable personal license, was intended. The easement by express grant did not, of course, fix the location in the document. However, when the original owner of the vacant lot acquiesced in the farmer’s building of the driveway over a particular strip of his property, this acquiescence acted to fix the location of the easement as being the driveway. Once that location was definitively fixed, neither the owner of the vacant lot nor his successor had the right to compel the easement holder (whether the holder was the farmer or her daughter) to move the location, no matter how non-burdensome moving that location would have been for the easement holder.

Fee simple determinable v. restrictive covenant

The quoted provision created a fee simple determinable title in the church (because the title in this case will be automatically forfeited to the grantor if the land is not used for church purposes), not a restrictive covenant. A restrictive covenant involves a promise regarding the use of the land and does not affect the title itself (though the existence of a restrictive covenant barring non-church uses would, like the determinable fee here, be enough to render title unmarketable).

Partition in co-tenancy

Either co-tenant has the right, at any time, to demand partition. (Courts will try to physically divide the property where this is feasible; if not, they will order the property sold and the proceeds divided. But in either event, the proceeding is referred to as “partition.”) During the course of partition, the court will order an accounting, to determine whether either party owes the other money for rents collected, taxes paid, etc.

Equitable mortgage

Where a deed is delivered to secure a loan to buy land, the deed is treated as a mortgage if doing so would accomplish the parties’ intent. Since there is no actual legal mortgage document, the court deems the transaction to constitute an “equitable mortgage,” i.e., something that equity (fairness) dictates should have the effect of a mortgage.

Tenant may not remove fixtures at the end of the lease term

A tenant may not remove “fixtures” at the end of the lease term. A fixture is a chattel attached to real property so that it ceases being personal property and becomes part of the real property. So the question is which, if any, of the items here is a fixture. The following factors, if present, argue in favor of a finding that the item is a chattel:

(1) it is firmly embedded in the real estate;

(2) it is peculiarly adapted or fitted to the real estate;

(3) removal would destroy the chattel or significantly damage the real estate; and

(4) the person who did the annexing (in this case, the tenant) had a substantial and permanent interest in the real estate (with a tenancy of years being the shortest, and a fee simple being the longest).

Liquidated damages - land sale contract

the liquidated damages clause was not a measure of either the landowner’s anticipated or actual losses, and was therefore an unenforceable penalty. Liquidated damages are agreed to by both parties at the time of the contract. Such liquidated damages clauses, where enforced by the court, determine the measure of damages that the court will award. In order for such a clause to be enforceable, however, it must meet this requirement: The amount fixed must be reasonable relative to either the anticipated loss (viewed as of the time the contract was signed) or to the actual loss (as determined by the passage of time).

The clause here does not meet this standard. It was not a reasonable forecast viewed as of the time the contract was made, because a loss of $50,000 in value during the contractclosing gap is highly unlikely given that the market value at the outset was $100,000 (i.e., a 50 percent loss of value during a relatively short — two- or three-month — period). Nor was the amount set in the clause reasonable compared with the actual damages, since we’re told that the value of the property had actually increased between the signing and the time for closing. So the clause was not reasonable relative to either the anticipated or actual loss, making it an unenforceable penalty