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Hoyos Property Cheat Sheet (DRAFT) by

This is a draft cheat sheet. It is a work in progress and is not finished yet.

Aqu­iring Proper­ty

State Acquis­ition


1. OIT: License occupancy, nonpos­sesory, revocable at any time
2. Recognized Rights by Congress (statu­te/­treaty) treats as sacred as Fee
3. US FEE: relati­onship is pupilage, duty to protect from 3rd parties and St. Gov't
If recognized by congress (statu­te/­tre­aty), then gov't interf­erence is subject to takings claim
THT: Mere assertion of JX is conquest. Domini­on/­Con­quer? Physical v. legal. Battle or Legal (force of law): "­threat of force" is suffiicent to be under US dominion

Eminent Domain

1. Taking of
2. Private Property
State Protec­tions for Reside­ntial Property
3. For Public Use
Kelo Public purpose, Economic Develo­pment, Police power, Compre­hensive Plan v. A ->B (literal view), Nuisance

Acquiring Property

Individual Acquis­ition

First Posession

1. First in time
2. Actual Possession
3. Intent to Possess
Depends on Policy: Contro­lling or holding of personal property with or without claim of ownership
Rule of Capture v. Pre-po­ssesory rights = Equitable Division
Rule of Capture (Pierson): First with vested rights and power to exclude
Pre-Po­sse­ssory Rights (Popov): Equitable division for peace, fight for exclusion may reward bad actors


The finder of property is typically entitled to the property against all others except the true owner unless trespa­ssing.
Distin­ction w/ Lost/M­isl­aid­/Ab­andoned
1. TO 2. Finder
1. TO 2. OLQ 3. Finder
1. FInder 2. OLQ
Treasure Trove

Adverse Posession

Grants a non-owner full ownership rights
1. Actual Possession
Physical use or occupation of the land
2. Hostile
Objective- Whether or not the AP had the TO's permission to go on the property. No permission = hostile.
Good Faith (AP mistakenly uses another's property thinking it was hers)
(ex. Color of Title)
Bad Faith- AP knew property was not her own, and took possession anyway
(ex. Claim of Right: rewards wrongd­oers)
3. Open and Continuous
Actual Notice- requires that the TO have actual knowledge that someone is on her property
Constr­uctive Knowledge- acts that a RDO would be expected to be put on notice. Visible to an onlooker (neigh­bors) that the AP is the TO
4. Exclusive
AP must have dominion and control and not share ownership rights with TO or 3rd party
5. Continous for
Tolling: (SP time is paused)
If TO is under disabi­lity, time will not run agasint her the disability is removed. SOL is tolled (mental illness, minor, jail)
AP Tolling:
Ousted by 3d party? Time is paused until AP's return.
Ousted by TO? Clock is restarted
Tackin­g:A­dding the time period of successive possessors to meet the SP (must have privity of title and conveyed by previous AP)
6. Statutory Period
# of years
1. Clarif­ication of Title/­Eco­nomic Efficiency
2. Promotion of socially beneficial use of land
3. Protection of expect­ati­on/­psy­cho­logical consid­eration
4. Moral/­Per­sonhood




1. Makes a False Statement Concerning a Material Fact
2. Seller Knows is False
3. With Intent to Induce Reliance by the buyer
4. Injures the Buyer

Disclosure (Duty to disclose)

1. Known Facts
2. Material to Sale
3. Not within reach of a diligent buyer
Policy: Caveat Emptor

Title Protection

1. General Warranty Deed
Good against all defects of title
2. Special Warranty Deed
Only the action of the grantor are guaran­teed.
3. QuitClaim Deed
No kinds of warranty, no assurances that grantor has right to convey, sell "as is"
Warranties of Title
Present Covenant
Breached, if at all, at conveyance
1. Convenant of Seisin
Guarantee that grantor owns the property
2. Covenant of the Right to Convey Land
Overlaps w/ previous covenant
3. Convenant Against Encumb­erance
If there are encumb­era­nces, they must be disclosed.
Future Covenant
Breached, if at all, after conveyance
1. Covenant of Warranty
Compen­sation for losses caused
2. Covenant of Quiet Enjoyment
Damages awarded if disturbed w/ cliams of superior title
3. Covenant of Further Assurance
The grantor will execute any documents to perfect title.
Recording System
Designed to proect the subsequent Bona Fide Purchaser (BFP, actually pays interest for value)
1. Race
Language of Time: First in time nad the first person who records gets the property.
2. Notice
Language of Notice: Whether the BFP had notice of the prior convey­ance. The last bonafide purchaser wins if she had no notice of prior interest..
3. Race-N­otice
Subsequent purchaser can prevail agaisnt prior purchasers only if 1) they didn't know of prior purcha­sers, and 2) if they are the first to record the interest

Types of Notice

Record­ation system
Granto­r-G­rantee Index
Notice involves knowing that there is a competing claim. Wild deeds do not count as record ntoice (outside the chain of title). Grantee shoudl check if the grantor has the property to convey.
1. Actual Notice
Conscious of a competing claim
2. Record Notice
Constr­uctive knowledge with anything that has been recorded (does not include wild deeds)
3. Inquiry Notice
Person should've known if facts warrant an invest­iga­tion. Inquiry notice does not include anything that is not discov­erable.

Ownership and Posses­sion: Sequential Ownership

Ownership Accross Time

Present Estates and Future Interest

Present Estate
Future Interst
For life
For another's life
For time
FSD or FSSCS: Modern Trend is FSSCS
Precatory Language
FS or LE in R: Presum­ption of aliena­bility


Policy: Certainty of vesting

Waste Doctrine:
Affirm­ative Waste
Permissive Waste
Amelio­rative Waste

FI has no rights until property posses­sory. However, if LE allows AP, FI can sue for Permissive Waste and sue LE for injunction

Remainder Rules

1. Worthier Title
Remainder O's Heirs
2. Rule in Shelley's Case
LE in A, R in A's heirs: A has LE and VRA (B's Intent to protect FI)
3. RSC applies Merger
LE in A + heirs: A has FSA (alien­abi­lity)
4. RSC not applied?
LE in A, R in A's heirs: A has LE, A's heirs have CR
4. Class Gifts
All or Nothing
5. Destru­cti­bility Doctrine
Destroys CRs if they did not vest whent he preceding LE ended

Rule Against Perpet­uities (RAP)

Grays Rule
Future Interests are valid only if they must vest or fail by the end of a life in being, plus 21 years
FIs subject to RAP? CR, EI, or VRS2O
Identify the Measuring life (causal)
Kill ML + 1 day after convey­ance. Will it fail to vest within the perpetuity period? Yes, RAP is satisfied
If not vested by 21 years, FI is void. Strike out violating language.
Reconstrue the conveyance with the remaining language
Class Gifts
1. Termin­ated: All or Nothing
2. Modified: Rule of Conven­ience (closes the class when the remainder becomes posses­sory; the members of the class who are vested at the time of the closing take their share without threat of furhter partial divest­ment. Contingent remainders are invalid)
Modern Trend: Courts will wait until condition occurs or perpet­uities period has ended, which ever comes first
Cy Pres:
Appoach where courts may reduce theh age contin­gency to 21 to validate the future interest (25 to 21)
Policy: Promotes Aliena­bility

Ownership and Posses­sion: Simult­aneous Ownership


The Tenancies

Tenancy In Common
*Each tenant, no matter how small the fractional interest, has the right to possess the whole unless all parties agree.
*Presu­mption in TIC over JT
Joint Tenancy
*Each tenant has the right to possess the whole. JTs req to possess equal fractional interests.
*Right of Surviv­orship- When a JT dies, her property interest is immedi­ately transf­erred the to the remaining JT's in equal shares.
*Created by 4 Unities: time, title, interest, posses­sion. Severance destroys unity(s).
Tenancy by the Entirety
*Created by Unities: 1. Time, 2. Title, 3. Interest, 4. Posses­sion, 5. Marriage.
*Right of Surviv­orship- Unlike JT, tenant cannot unilat­erally sever TE.
*Per Tout et non per My- Both husband and wife must convey to sever or destroy the JT.
*Lien Theory: Know creditor issue (1 tenant not respon­sible for debts of the other, mortgage has no effect).


1. Physical: parcel is divided phsycially
2. Sale: Property be sold with proceeds divided as fractional interest
Ouster v. Abando­nment
1. Explicit Act by which 1 co-owener wrongfully excludes other from jointly owned property
2. Constr­uctive Ouster- character of the property must be such as to make joint occupancy impossible or imprac­tiable (requires that ousted tenant make demand for rent as an affirm­ative act)
Adverse Possession
Requires an affirm­ative act by which the non-po­sessory tenant is put on notice that her co-owner is claiming adversely to the non-po­sse­ssory interest because each co-owner has the right to possess the whole.
Rights to share rents paid by 3d parties
Right to lease her proeprty witho

Separating Posession from Ownership



Reside­ntial and Commercial
1. Term of Years
Specified period of time determined by the parties. FI in reversion or remainder in 3rd party.
2. Periodic Tenancy
Renewed automa­tically at specified periods unless either the landlord or the tenant chooses to end the relati­onship. Ex) month to month. Requires notice be given to end relati­onship.
3. Tenancy at Will
Similar to PT, however can be ended with no notice. Death of either party ends the tenancy. Still required to give notice, but has an absolute right to evict without being subject to defenses.
4. Tenancy at sufferance (holdover tenant)
Tenant who is in rightful possession but wrongfully statys after leasehold has termin­ated.
Lease or Licence:
Lease: Owner transfers exclusive possession of a defined space with intent to create tenancy
License: Non-po­sse­ssory right to enter another’s land for some delineated purpose, freely revocable at any time by the grantor
Important- Lease requires notice to evict

Tenant's Right to Assign­/Su­blease

Conveys all tenant's remaing property interest without retaining any future rights of entry
Tenant retains some future interest or in the right to control the property in the future
LL can arbitarily refuse to assign­/su­blease
LL cannot arbitarily refuse to assign­/su­blease but must be reasonable

Tenants Right to Habitable Premise

Rent Abatement or Injunction
Implied Warranty of Habita­bility
1. Must be referenced to housin­g/b­uilding code
2. Landlord must have notice
3. Defects by general community standards of suitab­ility for occupancy
4. Landlord has reasonable time to fix it
** Tenant may move out before the end of hte lease or stay and either stop paying rent or receive reduced rent until conditions are fixed
Breach of Covenant of Quiet Enjoyment
1. Actual Eviction (changing the locks),
2. Contru­ctive Eviction,
3. Partial Constr­uctive Eviction (inter­ference leads to abandon a portion),
Constr­uctive Eviction
1. Substa­ntial Interf­erence w/ cov't of QE (use/e­njo­yment),
2. That make it Uninha­bitable
3. Actual abando­nment
QE applicable for other tenants
Generally no, unless landlord can control the action causing the nuisance (conte­xtual analysis)
Retali­atory Eviction
There is a presum­ption that eviction is retali­atory if it is within 6 mo. of the complaint of housing violations
RE Rest. Factors not retali­atory:
1. Legitimate business judgement
2. Good faith to dispose entire leased property or for different use
3. LL lacks financial ability to repair
4. LL did not act at first opport­uniyt
5. LL was unaware of the T's activities protected by statute
6. LL's act was not discri­min­atory

Fair Housing Act (FHA)

Can't discri­minate because of race, color, religion, national origin, sex, disabi­lity, and familial status.
Defines dwelling (roommate not dwelling)
Can't make, print, publish any notice statement or ad indicating preference or limitation
To refuse to sell/r­ent­/ne­gotiate after the making of a bona fide offer because of race, color, religion, sex, familial status, or national origin.
Prohibits false dissem­min­ation of false inform­ation regarding availa­biilty of housing because of race

Sex Discri­min­ation (FHA)

Sex Discri­min­ation
Hostile Enviro­nme­nt/­Unc­omf­ortable advances to tenant affects the lease
Quid Pro Quo (Sex for reduced payment)
Prima Facie Case Met
1. Member of protected class
2. Subject to unwelcome sexual conduct
3. Terms/­­co­n­d­itions of situation adversely change (use/e­njo­yment)
4. Change causally connected to rejection
5. Hostile Enviro­nment
FHA Sect. 3613: Entitled to Rescission of lease. May award actual and punitive damages, and if approp­riate, any permanent or temporary injunc­tion, temporary restra­ining order, or other order.

Race Discri­min­ation (similar to above)

1. Protected class
2. Apply and qualify to rent
3. Denied the opport­unity to rent/i­nsp­ect­/ne­gotiate for the rental
4. The housing opport­unity remained available


1. Unpriv­ileged
2. Intent­ional
3. Physical Intrusion
Except­ions: Necessary by Emergency, Prior consent, and Public Policy
Policy: Protects Possessory Interest


Five Factors to determine Nuisance
1. Location
2. Time
3. Surrou­ndings
4. Situation
5. Manner in which business is performed
1. Intent­ional
(1) Whether the person knows or should have known the results of her conduct
(2) Whether the person was reckless or negligent
2. Unreas­onable
Balance Utility & Gravity of Harm
(1) Social value that the law attaches to the conduct
(2) Suitab­ility of the conduct to the character of the locality
(3) THe imprac­tic­ability of preventing or avoid the invasion
Gravity of Harm:
(1) Nature of the harm
(2) Social value of the Plaint­iff's use and enjoyment of the property
(3) Suitab­ility of use to the character and the locality
(4) Burden on the Plaintiff to avoid the harm
3. Substa­ntial
Affects normal sensit­ivity [Dobbs v. Wiggin­s-o­utr­agous number of dogs barking]
4. Non-tr­esp­assory
The interf­erence with the use and enjoyment of the land of others
5. Interf­erence with the Use and Enjoyment of Another's land

Nuisance Remedies

Balance the Equities:
1. The character of the harm
1. Cost and Benefit of allowing or preventing the harm
2. Who Bears the Cost?
2. Lowest cost avoider
3. Who is at fault?
Coase theorem: All Coase is saying is that legal rules can effect economic effici­ency, and that courts should thus increase efficiency by assigning entitl­ements to the parties who would purchase them in the absence of transa­ction costs. The feed lot would not buy out the developer, but the developer would buy out the feed lot. So the court makes the developer do that.

Remedies to Nuisance

P may obtain injunction against D's conduct when:
-D's conduct is unreas­onable and causes substa­ntial harm to P
P may obtain damages, but no injunction if:
-D's conduct is reasonable (causes more social good than harm) but the harm is P is substa­ntial so that it is unfair to burden P with the cost of D's conduct
P is entitled to no remedy if:
-If the harm to P is not substa­ntial
-D's conduct is reasonable and it isn't unfair to impose the costs of D's activity on P
Because of the social good of D's conduct, it is more important to avoid putting D out of business than preventing P's harm
P is entitled to purchased injunction if:
-D's conduct is unreas­onable, but it is fair to impose the cost of shutting down D's conduct on P
Boomer: D is first in time is a good defense
Public Interest and Market Value
Cost Abatement- Business costs of reducing nuisance
Instit­utional Compet­ence- Judges are not equipped with coming up with best solution (better to make parties make private deal)

Servit­udes: Affirm­ative Easement

Express Easement
Created by will or deed
Easement Appurt­enant
-Benefit RWL: exercise limited use or control of the SE and benefits the OWNER of the DE
Easement in Gross
-Benefit of the easement runs to a specific person
Burden Requires:
(1) Writing
(2) Intent
(3) Notice
Benefit Requires:
(1) Writing
(2) Intent

Scope of Easements
1. The use is of the kind contem­plated by the grantor
2. The scope of an easement must be able to reasonably accomm­odate the legitimate uses of the dominant estate and not unduly burden the servient estate
-Techn­olo­gical change
-Normal Develo­pment
3. Easement can be subdivided

Servitude: Non-Ex­press Easements

Prescr­iptive Easements
-Presu­mption is permissive
1. Use
2. Hostile
3. Open and Notorious
4. Continuous
5. Stautory Period
6. Some JX: Exclusive
Estoppel (irrev­ocable Licenses)
1. License + Reasonably forese­eable reliance on License
2. Substa­ntially changed position because of reliance
3. Injustice avoided only by creation of servitude.
1. Permission can be implied (acquiesence)
2. Fraudulent to allow detrim­ental reliance and revoke
3. Should a license be irrevo­cable?
Implied by Prior Use
1. Unity of ownership: two parcels owned by common grantor
2. One part of parcel previously used for benefit of other
3. Severance
1. Appare­nt/­visible
2. Continuous or Permanent
3. Strict or reasonable necessity: whether a reasonable person would expect to continue use no matter who owned property
Rest. Prop. Factors:
1. Claimant is the conveyor or the conveyee
2. Terms of the conveyance
3. Consid­eration given for it
4. Claim is made against simult­aneous conveyee
5. extent of necessity of the easement to the claimant
6. Reciprocal benefits result to the conveyor and the convee
7. Manner in which the land was used prior to its conveyance
8. Extent to which the manner of prior use was or might have been known ot the parties
Implied by Necessity
1. Unity of ownership
2. Severance creates a landlock parcel
3. Necessity for egress and ingress existed at time of serverance [strict necessity]


Real Covenants
1. Writing
2. Intent
3. T/C
4. Vertical Privity
1. Writing
2. Intent
3. Notice
4. VP + HP
5. T/C
Equitable Servitudes
1. Writing
2. Intent
3. T/C
1. Writing
2. Intent
3. T/C
4. Notice
Touch and Concern
1. Benefit: must Increase value of property
2. Burden: Involves physical use of the property (narrow),
3. Burden: Still T/C if it affects legal interests (broad),
4. Burden: Restat­ement for T/C: Is it reason­able?
Strict Privity: FSA to FSA
Relaxed Privity: Anything less than FSA
Modern Trend (Rest): No privity required.

Real Covenant Remedy? Damages and Injunction
Why Equitable Servitude doesn't require privity? Remedy limited to Injunc­tion.