REAL PROPERTY

1. IMPORTANT RULES:
a. Mick Jagger: You can convey less than what you started with, but you cannot convey
more.
2. PRESENT POSSESSORY ESTATES:
a. Fee Simple Absolute: Absolute ownership of potentially infinite duration.
i. Granted: “To A” “To A and his heirs”
ii. Transferability: Devisable [will], descendible [intestacy], alienable [transferable
inter-vivos i.e. during holder’s lifetime.]
iii. Future Interests: NONE. Only A has absolute ownership. A living person has
no heirs, he only has prospective heirs that are powerless.
b. Fee Tail: [abolished] Devise used to lock the property into grantee’s family & preserve
lineage. Language will instead create an FSA.
i. Granted: “To A and the heirs of his body”
ii. Future Interests: [historically] Reversion in O and Remainder in 3P.
c. Defeasible Fees: (1) FS Determinable [CP] (2) FS subject to condition subsequent (3)
FS subject to an executory interest.
i. Fee Simple Determinable: Property automatically reverts [forfeiture] back to O
upon the happening of a given event.
1. Granted: uses durational language like a CP – To A… so long as, during,
while, until.
2. Future Interest: Possibility of reverter to O.
3. Transferability: Devisable, descendible, alienable  BUT always subject
to the condition.
ii. Fee Simple Subject to Condition Subsequent: Grantor retains power to
terminate grantee’s estate. He must use clear conditional language and carve out
the right to re-enter. Once the CS occurs, the right of reentry/termination vests
with grantor, who must then take action to terminate; forfeiture is not automatic.
1. Granted: To A… provided that, but if, on the condition that
2. Transferability: Devisable, descendible, NOT alienable.
3. Future Interest: Right of reentry retained by grantor.
iii. Fee simple subject to executory interest: Property automatically transfers to a
third party [someone other than grantor] upon the happening of a given event.
1. Granted: To A… CP/CS… then to B – to A, but if X occurs, then to B.
2. Future Interest: Shifting exec interest [grantee – grantee] Springing exec
interest [Grantor – grantee]
iv. Important Notes Re Defeasible fees:
1. Words of desire, hope, intention are insufficient to create a defeasible fee.
a. Courts disfavor restrictions on free land use. Use of such
language creates an FSA.
2. Clear durational language – Courts do not want to weigh down
alienability or marketability. So, courts will not find a defeasible fee
unless clear durational language is used.
3. Absolute restraints – bans on power to sell or transfer – on alienation
that are not linked to any reasonable time limit or purpose are void.
 a. E.g. To A so long as she never attempts to sell. A has an FSA O
has nothing, the condition is unreasonable absolute restraint.
d. Life Estate: Measured by lifetime terms or term of years.
i. By Implication: “to A after the death of B”
ii. Pur Autre Vie: LE measured by a life other than the grantee’s
iii. Effect of LT’s death prior to death of measuring life: Under CL, Seisin is
vacant and anyone can take. Modernly, passes to the estate of the deceased LT.
iv. Transferability: complete restraints on alienation of a life estate are valid.
v. Future Interests: Reversion in grantor// Remainder in 3rd party.
vi. Doctrine of Waste: Concerns the rights/duties of the LT. LT is entitled to all
ordinary uses and profits from the land. The LT cannot injure the interests of the
FI holders [remainder/reversion holder]; thus, she must maintain the property
and not do anything to hurt the FI holder’s entitlement.
1. Voluntary Waste: Overt conduct that causes a drop in the value of the
property [willful destruction]. LT cannot consume or exploit natural
resources, except:
a. Necessary for reasonable repairs/maintenance of the land
b. When grant expressly gives the right to exploit
c. If land was used for exploitation prior to grant.
i. Open mines doctrine: If extraction of materials was
done on the land before LE began, LT may only extract
from mines already open.
d. If land is suitable only for exploitation [granite quarry, coal mine]
2. Permissive Waste: When land is allowed to fall into disrepair. LT has a
duty to repair/maintain the property up to the extent of income and
profits derived from the land or rental value of land. Failure to do so is
permissive waste.
a. LT does not have to insure property
b. LT not liable for damages caused by 3P tortfeasor
c. LT must
i. Repair: Maintain premises in reasonably good repair –
i.e. make reasonable repairs but not replacements [patch
up leaky roof; not replace].
1. If not done & something worse results bc not
repaired, LT liable for permissive waste.
ii. Tax: Pay all ordinary taxes on land to extent of income
and profits from the land. If no income/profits, LT only
has to pay ordinary taxes to the extent of the fair rental
value.
1. FI holder must make sure taxes are paid; if put to
foreclosure sale, FI will be eliminated.
iii. Mortgage: Pay interests [but not the principal] on the
mortgage
iv. Pay special assessments for public improvements of a
short duration
v. If LT is not using the land, then LT has no repair, tax, or
mortgage obligations.
 3. Ameliorative Waste: Substantial change that increases the value of the
property.
a. LT may commit ameliorative waste if: (1) The Market value of FI
is not diminished and either (2) All FI holders are known and
consent or (3) changed conditions have made the property
relatively worthless.
b. Leasehold tenant cannot commit ameliorative waste.
3. FUTURE INTERESTS:
a. In Grantor:
i. Possibility of reverter [FS Determinable]
ii. Right of reentry/termination [FSSCS]
iii. Reversion – Grantor conveys less than full durational estate that he had i.e. LE
or term of years, whatever is left over is a reversion.
b. In Transferee:
i. Remainder: FI in favor of 3rd party that takes effect immediately upon the
termination of the prior freehold estate [follows LE or term of years; never a
defeasible fee]
1. Vested remainder: A remainder is vested if both (1) created in an
ascertained person and (2) Not subject to any condition precedent.
a. Indefeasibly vested remainder: Holder is certain to acquire interest in
the future, with no conditions attached. All transferees are known
i. E.g. To A for life… then to B.
ii. Waste – IVR have standing to sue for waste
iii. If B predeceases A, at common law, B’s future interest
passes by will or intestacy
iv. Not subject to RAP.
b. Vested remainder subject to complete divestment: Remainderman exists
but his right to possession could be cut short due to a condition
subsequent.
i. E.g. To A for life, then to B unless he uses it as a bar.
ii. Distinguish Condition Precedent vs Condition
subsequent: CP creates a contingent remainder. CS
creates VRSCD.
1. Comma rule Conditional language follows
language that, taken alone and set off by commas,
would create a vested remainder.
2. If conditional language appears before the
language creating the remainder, it is a CP =
contingent remainder.
iii. Not subject to RAP
c. Vested Remainder Subject to Open: Remainder is vested in a group of
takers, at least 1 of whom is qualified to take, but each class
member’s share is subject to partial divestment because additional
takers can still join the class. [uncertain potential for more
beneficiaries/increase in membership]
i. E.g. To A for life, then to B’s heirs. A is alive. B alive and
has # of kids, can still have more.
 ii. Open vs Closed: Class is open if others can join. Class is
closed when no others can join. [i.e. B dies so can’t have
any more kids]
1. CL rule of convenience: Class closes whenever
any member can demand possession. i.e. LT, A,
dies, even if B is still alive. When prior freehold is
up, the class can demand possession; closes off to
the rest, unless womb rule applies [children in
the womb at the time the class closes, join the
class].
iii. Survivorship of class members:
1. If class predeceases LT, at CL, absent a statute on
point, their share goes to their devisees or heirs.
2. Survivorship usually unnecessary at the time of
closing, unless it was made as an express
condition.
iv. Subject to RAP as long as class is open.
2. Contingent Remainder: Remainder is contingent if (1) created in an
unascertained person or (2) is subject to a condition precedent or (3)
both.  Subject to RAP
a. (1) Yet Unborn or unascertained person: Possibility of reversion to O;
Contingent remainder in B’s children/later ascertained taker.
i. E.g. To A for life, then to B’s first child. A alive. B~kids.
ii. E.g. To A for life, then to B’s heirs. A alive. B alive. A
living person has no heirs so while B is alive, heirs are
unknown.
iii. E.g. To A for life, then to B’s children who survive A. A
alive. We do not know which, if any, of B’s children
survive A.
b. (2) Subject to condition precedent that has not been met: To A for life,
then to B… CP [if, so long as, until].
i. If condition is met during the previous freehold estate
[LE], it becomes an indefeasibly vested remainder.
c. Transferability: freely devisable, alienable, and descendible
[provided that survival is not a condition to the interest’s taking]
d. Rule of Destructibility: @CL, contingent remainders are
destroyed if still contingent at the time the preceding estate
ended.
i. Modern: Rule is abolished. Interest will revert back to
grantor & contingent taker will get a springing executory
interest that will vest when the CP is met.
e. Rule of Merger: [Shelly’s case] To A for life, then, on A’s death,
to A’s heirs. A is alive. @CL, when grant is created, the present
and future interests would merge giving A a FSA.
i. Rule of law, not construction Applies even in the face
of contrary grantor intent
 ii. Modernly: Rule abolished. A will have a LE. A’s yet
unborn/unknown heirs have a contingent remainder, O
has a reversion since A could die without heirs.
f. Doctrine of worthier title: Grantor is alive and tries to create a
future interest in his own heirs. The contingent remainder in O’s
heirs is void. A will have a LE and O will have a reversion.
[Majority]
i. Rule of construction – If O clearly states intent to create a
contingent remainder, that intent is binding.
ii. IL: Abolished rule. O is still alive, and a living person has
no heirs. A has a LE, O’s prospective heirs have a
contingent remainder.
ii. Executory Interests: FI created in a 3P that is not a remainder and which takes
effect by cutting short an interest in another person [A]. Always follows a
defeasible fee [not a LE or term of years].
1. To A CP/CS, then to B Shifting executory interest. [from grantee to
grantee]
2. To A… CP.  Springing executory interest [from grantor to grantee]
3. Transferability: freely alienable/transferable. Freely devisable and
descendible provided that survival is not a condition to the interest’s
taking.
4. Waste: EI holders do not have standing to sue for waste – bc not
guaranteed that they will ever have a possessory interest.
c. RULE AGAINST PERPETUITIES: No property interest is valid unless it must vest,
if at all, no later than 21 years after the death of a life in being at the time the interest was
created.
i. Rule Restated: A FI is void if there is any possibility, no matter how remote,
that it will vest more than 21 years after the death of the measuring life [life in
being at the time the interest was created].
ii. Applicable to: Contingent remainders, executory interests, vested remainders
subject to open, options to purchase, the right of first refusal.
iii. Not Applicable to: Grantor’s interests, any interest that is already vested
[indefeasibly vested remainders, vested remainders subject to complete
defeasance]
iv. Presume anything is possible: RAP is bleak; it presumes anything is possible,
no matter how remote. Any parade of horribles [death, infertility etc.] that could
invalidate future interest is presumed by the RAP.
v. Analysis:
1. First: determine the interest being granted. Must be contingent
remainder, EI, vested remainder subject to open, option to purchase,
right of first refusal.
2. Second: Identify conditions precedent to vesting of suspect future
interest. [what must happen for FI to take]
3. Third: Find all measuring lives – people alive at the date of the grant
whose lives/deaths are relevant to condition’s occurrence.
4. Fourth: Ask, will we know for sure within 21 years of the death of ANY
of the relevant measuring lives if the FI holders can take? If yes,
 conveyance is good. If no, the FI is void. Strike only the violating portion
of the grant. What remains is a new conveyance.
a. Must be grammatically sound: If striking the offensive FI makes
the grant a fragment, then all of the conditional clause should be
stricken.
i. E.g. To A and heirs, but if the land ceases to be used for
farm purposes, to B and his heirs. Strike offensive FI.
ii. Not grammatically sound  strike all conditional
language. To A and heirs, but if the land ceases to be used
for farm purposes, to B and his heirs. A has FSA.
b. Fertile Octogenarian rule: Presumes that a person is fertile no
matter their age.
i. Illinois: Modifies rule. A person over 65 is incapable of
having a child. Statutorily, adoption is disregarded.
vi. Perpetuities Period begins to run: (1) Will – testator’s death (2) Deed – from
date of delivery (3) Irrevocable trust – date of creation. (4) revocable trust – from
the date it became revocable.
vii. Void Interests: if the interest is void, you strike out the language that violates
the rule.
1. A gift to an open class that is conditioned on members surviving
beyond 21 years, violates the RAP.
a. Bad as to one, bad as to all: To be valid, it must be shown that
CP to every class member’s taking will occur with certainty within
perpetuities period. If it’s possible that disposition might vest too
remotely with respect to a member of the class, the entire class
gift is void.
2. An executory interest with no time limit on the time within which it
must vest violates RAP. [many shifting EIs]
viii. Charity Exception: A gift from one charity to another charity does not violate
RAP because of public policy. [Also doesn’t apply to charitable trusts]
ix. RAP Reform:
1. Wait & See / Second Look Doctrine: [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. [rather than at
time of grant/conveyance].
a. This eliminates the what if/ anything is possible line of inquiry.
Instead of invalidating, we just wait and see at the time the
measuring life actually ends.
2. Uniform Statutory Rule Against Perpetuities: [USRAP] Alternative
90-year vesting period.
3. Both reforms embrace:
a. Cy Pres doctrine [as near as possible] – if a conveyance violates
RAP, a court may reform it in a way that most closely resembles
grantor’s intent while still complying with RAP
b. Reduction of offensive age contingency to 21 years: i.e. ct will
automatically reduce the age contingency down to 21 to make it
 permissible under RAP and allow transfer to survive. IL Does
this
4. CONCURRENT ESTATES:
a. Joint Tenancy: 2 or more owners, JTs, with the right of survivorship. Each JT owns an
equally divided share in the JT as well as the right to possess the whole.
i. Characteristics:
1. Transferability: Interests are alienable – can sell or transfer while alive,
but not devisable [will] or descendible [intestacy] because of right of
survivorship.
2. Right of survivorship: When one JT dies, his share goes to the surviving
JTs.
ii. Creation: (1) 4 Unities [T-TIP] (2) Grantor’s express intent of right of
survivorship [can use straw man].
1. 4 Unities: JTs must take their interests:
a. At the same Time
b. By the same title
c. With identical interests
d. And each with the rights to possess the whole.
2. Intent of survivorship: grantor must clearly express right of survivorship
because there is a presumption of a TIC under the law. JTs are
disfavored because they avoid probate.
a. Straw man: If G, owning in FSA, wants to create a JT, to satisfy 4
unities, he must use a straw man. G conveys title to straw man.
Straw man conveys back to G and 3P as JTs with a right of
survivorship.
i. IL: Straw man not needed. Lets FSA holder convey,
more efficiently, to himself and 3P, as JTs with right of
survivorship.
iii. Severance: Whenever one of the 4 unities is destroyed. SPAM: sale, partition
and Mortgage.
1. Conveyance: JT can transfer her interest during her life – even secretly
w/o others knowing. Sale severs the JT as to the seller’s interest because
it disrupts 4 unities. Buyer becomes TIC, a JT will remain intact between
remaining JTs.
a. Heirs of JTs after conveyance does not take if all JTs still alive.
Deceased JTs share just shifts to living JTs.
b. Contract of sale: A JTs mere entering into a K for sale severs the as
to the contracting party’s interest, despite a closing never
occurring.
i. This is due to the doctrine of equitable conversion which
provides that equity regards as done that which ought to
be done.
2. Partition: breakup of the relationship. Voluntary or involuntary.
a. Voluntary partition: Peaceful end to JT. Parties can always agree to
dissolve relationship amicably.
b. Partition in kind: A court action whereby the land is physically
divided on its face amongst the JTs. Court must find that it is in
the best interests of all parties.
 i. Works best when used for sprawling acreage/agricultural
land [e.g. farm or vineyard].
c. Forced Sale: Court action whereby property is sold and the
proceeds are divided proportionately. Court must find that it is in
best interest of all parties and partition in kind is impracticable.
i. Tends to work best when property is a single building
that is not susceptible to physical division – particularly
when there is bad blood between JTs.
3. Mortgage:
a. Title Theory: [minority] One JT taking out a Mortgage result in
severance of his [now encumbered] share of the JT. Treated as
the functional equivalent of transferring title to the creditor.
i. Bad for expectations.
b. Lien Theory: [Majority; IL] Execution of a mortgage/lien will not
sever the JT. The lien attaches to title, but title is not transferred.
i. More in accord with parties’ reasonable expectations.
b. Tenancy by the entirety: Marital interest between married [not engaged] partners with
the right of survivorship. [4 unities of T-Tip+ Marriage]
i. Creation: married partners + right of survivorship
1. Common law: arises presumptively in a grant to married persons.
2. IL: Grantor must explicitly say so, otherwise, TIC. “To A and B as
tenants by the entirety”
ii. Severance/Termination: Highly protected form of co-ownership bc it exists
within the bounds of sanctity of marriage.
1. Creditors: of only 1 spouse, can NOT touch this tenancy.
2. Unilateral conveyance: Neither tenant, acting alone, can defeat the right
of survivorship by unilateral transfer to 3P. NO secret conveyances.
a. i.e. conveyance and mortgage by one party is ineffective.
3. No right of partition.
4. Can be terminated by death, divorce, mutual agreement. Divorce causes
the tenants to take ½ TIC each.
c. Tenancy in Common: 2 or more owners with no right of survivorship. Each co-tenant
owns an undivided part [can be unequal] and each has the right to possess the whole.
Presumption in favor of a TIC because it goes through probate.
i. Partition: TICs have a right to partition voluntarily or involuntarily.
d. Rights & duties of co tenants: these apply across all three co-tenancies.
i. Possession: Each co-tenant has the right to possess the whole.
1. Ouster: forcibly removing a co-tenant – actionable wrong. Without an
ouster, a co-tenant in exclusive possession is not liable to the others.
Also, without ouster, court cannot claim adverse possession.
ii. Rent from tenant with exclusive possession: A co-tenant in exclusive
possession is not liable to co-tenants for rent.
iii. Rent from 3Ps: A co-tenant who leases all or part of the premises to 3P must
account to co-tenants and give them their fair share of rent in common. This is
equal to CT’s undivided interest in the whole.
iv. Adverse possession: Unless ousted by CTs, one CT in exclusive possession for
statutory adverse possession period cannot acquire exclusive title.
 v. Carrying costs: Each CT is responsible for his fair share of carrying costs, such
as taxes and mortgage interest payments, based on his undivided share.
vi. Repairs: repairing CT enjoys an affirmative right to contribution for reasonable,
necessary repairs, provided that she has told the others of the need for repairs.
Each must contribute according to their fair share of ownership.
vii. Improvements: During life of CT, there is no right of contribution for any
unilateral “improvements” [very subjective; one CT’s improvement is another’s
nightmare]
1. At partition: [breaking up] the improving CT is entitled to a credit equal
to any increase in value she caused. That CT also bears full liability for a
debit – or drop in value she caused.
viii. Waste: A CT will be liable for any waste she commits.
1. Voluntary: destruction
2. Permissive: neglect
3. Ameliorative: changes that increase value.
ix. Partition: a JT or TIC has the right to bring an action for partition, or seek a
forced sale and apportion the proceeds.
5. LANDLORD TENANT LAW:
a. Leasehold: A leasehold is an estate in land, under which the tenant has a present
possessory interest in the leased premises and landlord has a future interest [reversion].
i. Covenants in the lease are generally independent – if one party breaches a
covenant, the other party can recover damages but must still perform his
promises under the lease and cannot terminate the L-T relationship.
b. 4 types of leaseholds:
i. Tenancy for Years: (1) lease is for fixed period of time – definitive beginning
and end required (2) if duration longer than 1 year, must be in writing under SOF
(3) terminates automatically at end of fixed period, notice is not required.
1. When you have termination date from the start, you have a tenancy for
years.
2. Landlord maintains right of reentry, which allows him to terminate the
lease if the tenant breaches any of the lease covenants. [failure to pay
rent]
ii. Periodic tenancy: tenancy estate that repeats until terminated. Continues for
successive intervals, until L or T give proper notice to terminate.
1. Creation:
a. Expressly: L conveys to T month to month, year to year, week to
week.  successive or continuous nature
b. Implication: 3 ways:
i. Land is leased with no mention of duration, but provision
is made for the payment of rent at set intervals.
ii. Oral term of years in violation of the SOF creates an
implied periodic tenancy, period is measured by the way
rent is tendered.
iii. The holdover: in a residential lease, if L elects to holdover
a tenant who wrongfully stayed on past the conclusion of
the original lease, an implied periodic tenancy arises,
measured by how rent is now tendered.
 2. Termination: (1) usually written notice must be given [doesn’t tell us at
the start when it closes] (2) proper notice, at CL, at least equal to the
length of an interval itself, unless otherwise agreed
a. month to month = 1 month
b. week to week = 1 week
c. year to year or greater = 6 months  in IL by statute= 60
days.
d. By private agreement, parties may lengthen or shorten these CL
proscribed notice provisions.
e. Periodic tenancy must end at the conclusion of a natural lease
period – i.e. the end of the following month/week/year.
i. E.g. L leased blackacre to T on 1/1 for periodic tenancy
month-to-month. On 5/15, T sends written notice of
termination. T is bound until 6/30.
iii. Tenancy at will: tenancy for no fixed duration. E.g. to T for as long as L or T
desires.
1. Creation: Unless they explicitly agree to a tenancy at will, the payment of
regular rent will cause a court to treat it as an implied periodic tenancy.
2. Termination: Theoretically, may be terminated without notice by any
party who has the power to do so. BUT a reasonable demand to vacate is
typically needed. May also be terminated by operation of law [death,
assignment, commission of waste by T, transfer of title by L, lease by L
to 3P]
a. Note: if only the T has the right to terminate, the L cannot
terminate. If only the L has the right to terminate, either the L or
the T may terminate.
iv. Tenancy at sufferance: Arises when T wrongfully remains in possession after
the expiration of lawful tenancy. [wrongful holdover] we call this T a tenant at
sufferance to permit L to collect rent. It is temporary.
1. LL has 2 options:
a. Evict: sue in trespass and recover damages.
b. Impose new periodic tenancy:
i. If old tenancy was for < 1 yr tenancy will be measured by
period covered by rent payments
ii. If old tenancy was for > 1yr in a commercial setting, the
L may impose a new year to year lease
iii. If L gives T notice of the rent increase before the
expiration of the old lease, the L may demand the higher
rent amount.
c. Tenant’s Duties:
i. Liability to 3Ps: [tort law] In tort, T is responsible to keep premises in
reasonably good repair. Meaning, T is liable for any personal tortious based
injuries sustained by 3Ps that T invited, even where L promises to make repairs.
1. T may seek indemnity from L
ii. Duty to repair: when lease is silent as to repair duties, T must maintain the
premises and make routine repairs, other than those due to ordinary wear and
tear or those due to passage of time.
1. Wear & tear vs routine repairs: shoving hair down the drain [routine
repairs] vs shower tiles turning yellow after the passage of time.
2. T must not commit waste:
a. Voluntary waste: intentionally or negligently damages the
property or exploits minerals from the property.
b. Permissive waste: fails to take reasonable steps to protect the
premises from damage from the elements. T is liable for all
ordinary repairs excluding ordinary wear and tear and has a duty
to report deficiencies promptly.
c. Ameliorative waste: T may not alter the property to increase its
value. T will be liable for restoration.
i.  except where T is long term tenant who makes
changes consistent with the changes in the neighborhood.
d. Fixtures: associated w waste. When a T removes a fixture, he
commits voluntary waste.
i. A fixture is a once moveable chattel that, by virtue of its
annexation to realty, objectively shows the intent to
permanently improve the realty.
1. E.g. furnace, custom storm windows, certain
lighting installations, heating systems.
2. Factors in determining fixtures:
a. Degree of attachment – brick wall vs fan
in room
b. General custom – T takes hung pictures
c. Degree of harm to premises on removal
d. Adaptation of the item to the realty
[custom shower rod]
ii. T must not remove a fixture, no matter that she installed
it*** Fixtures pass with ownership of the land.***
iii. How to tell when a T installation qualifies as a fixture 
1. Express agreement controls: any agreement on
point is binding.
2. In the absence of an agreement, T may remove a
chattel that she has installed so long as removal
will not cause substantial harm to the premises.
3. If removal will cause substantial damage, then in
objective judgment T has shown the intent to
install a fixture.  the fixture stays put. Removal
will cause voluntary waste.
3. T’s duty to repair when T expressly covenanted [promised] in the lease to
maintain property in good condition for the duration of the lease.
a. At CL, historically, T was liable for any loss to the property,
including loss due to force of nature. T liable for restoration and
reconstruction of the premises. [sitting duck for acts of god]
b. Today, the majority view, T may terminate the lease if the
premises are destroyed without T’s fault.
 c. In the commercial setting, the covenant is enforceable against the
T, including repair of ordinary wear and tear.
d. In the residential setting, the L remains obligated to repair [except
damages caused by the T] under the IWOH.
iii. Duty not to use property for illegal purposes: If the T uses premises for illegal
purpose, the L may terminate the lease. [distinguish occasional illegal conduct].
iv. L’s Remedies For T’s Breach:
1. T breaches the duty to pay rent, and is still in possession of the premises:
The L’s only options are to (1) evict through the courts or (2) continue
the relationship and sue for rent. If the L moves to evict, she is
nonetheless entitled to rent from T until that T, who is now a T at
sufferance, vacates.
2. T breaches duty to pay rent but is out of possession/abandons premises:
[e.g. wrongful vacate with time left on lease] SIR
a. Surrender: L can choose to treat T’s abandonment as an implicit
offer of surrender, which means, T shows she wants to give up
the lease. Duty to pay rent ends here.
i. If unexpired term is greater than 1 year, it must be in
writing under SOF  L sends letter of surrender at last
known address – “I will treat your vacating as implicit
offer of surrender, which I hereby accept”
b. Ignore: abandonment and hold T responsible for unpaid rent just
as if T were still there. Proceed against T for entire sum due. This
option is only available in a minority of states.
c. Re-let premises: on the wrongdoer T’s behalf, and hold her liable
for any deficiency. Majority & IL rule. L must at least try to re-
let. Success is not required. Must make reasonable good-faith
attempt at it, because this is a mitigation principle – so L can cut
his losses. T is liable for deficiencies.
3. No Self Help: L must not engage in self-help, such as changing the
locks, forcibly removing T, removing T’s possessions, self-help is flatly
outlawed, it is punishable civilly and criminally.
4. Rent Security Deposit: L is not permitted to retain a security deposit
beyond the damages actually suffered.
d. Landlord’s Implied duties:
i. Duty to deliver possession:
1. Majority: L must deliver legal and actual physical possession to new T.
Must give keys to premises & lawful lease
a. Thus, If the holdover T is still in possession at commencement
of a new lease, the L is in breach and the new T may sue for
money damages.
2. Minority: [IL] Legal possession [i.e. right to possess] New T is
responsible for any holdovers on property – must bring eviction
proceedings against the holdover.
ii. Implied covenant of quiet enjoyment: T has an implied right to quiet use and
enjoyment of the premises, without interference from L. Implied in all leases,
 residential and commercial. In IL, L has no duty to repair in commercial leases.
Breach may occur by actual or constructive eviction.
1. Actual wrongful eviction: L wrongfully evicts or excludes T from
property. This terminates T’s obligation to pay rent.
2. Partial eviction: By the L, which relieves T from paying rent for the entire
premises. Partial eviction by a 3P with paramount title results in an
apportionment of rent – liable for the portion she continues to possess.
3. Constructive eviction: L’s actions or inactions render the property
uninhabitable. 3 elements:
a. Substantial interference: If L does or fails to do something that
renders the property uninhabitable. Major and/or chronic
problems [e.g. leaky roof]. Must be L’s act/failure to act, not a 3P
b. Notice: T must tell L of the problem and give L a reasonable
opportunity to repair, and L must fail to act meaningfully.
c. Vacate: T must vacate within a reasonable period of time after
the L fails to repair.
4. Liability for acts of 3P/other tenants: L generally not liable for acts of
3Ps or other tenants except (1) L must not permit nuisance on site (2) L
must control/maintain common areas.
iii. Implied warranty of habitability: Implied, non-waivable warranty in residential
leases that states that the premises are fit for basic human habitation [bare
necessities]
1. Characteristics:
a. Not applicable to commercial leases
b. Absolute duty – cannot be modified/waived by lease terms
c. Local housing codes or case law specifies the standard for a
breach
d. E.g. no heat in winter, no plumbing, no water, etc.
2. Duty & breach: L’s duty is tied to standards of local housing codes or
case law
3. T remedies when IWOH is breached:
a. Move: vacate the premises and terminate the lease
b. Repair: make reasonable repairs and deduct the cost from future
rent.
c. Reduce or withhold rent: T can reduce rent or stop payment
until a court determines the Fair rental value given the breach. T
must place withheld rent in escrow.
d. Remain: T can remain in possession, pay rent, and seek money
damages.
iv. Retaliatory eviction: If T lawfully reports L for housing code violations the L is
barred from penalizing T [i.e. raising rent, terminating lease, harassing T].
Retaliatory motive is presumed if evicted within 90-180 days after reporting.
v. Discrimination: the federal fair housing act bars discrimination in the sale or
rental of property. Cant deny sell or rent dwelling because of race, color, national
origin, religion, gender, against persons with children [except senior only
housing] and disability. Act also makes it unlawful to make discriminatory
statements in advertisements related to sale or rental of dwellings.
 1. Does not apply to: (1) religious organizations, (2) private clubs and (3)
owner-occupied buildings with no more than 4 units (4) Persons leasing
or selling single-family dwelling if person owns 3 or fewer dwellings, does
not use a broker, does not advertise to show intent to discriminate.
2. Disabilities: When the fair housing act applies, L’s must allow disabled
tenants to make reasonable modifications to existing premises at the T’s
own expense. L must make reasonable accommodations in rules, policies,
and available services to give disabled T’s an equal opportunity to use and
enjoy the dwelling. E.g. Access to an egress to and from the building.
e. L tort duties: Under CL norm of Caveat Lessee – tenant beware - holds that L is
under no duty to make the premises safe. 5 exceptions where L may be liable for injuries
occurring on lease property: [CLAPS]
i. Common areas: duty of reasonable care. L must exercise reasonable care in
maintaining and repairing common areas – i.e. where he exercises dominion and
control [hallways, stairs].
ii. Latent defects: duty to disclose. L has a duty to disclose any hidden defects he
should reasonably know of. [duty to disclose not repair]
iii. Assumption of repairs: negligence standard. L is liable for harm caused by
negligent repairs he chooses to undertake or those repairs that give a deceptive
appearance of safety.
iv. Public use: L who leases a public space is liable to injuries to members of the
public if (1) he knows or should reasonably know of a dangerous condition (2)
has reason to believe that T may admit the public before repairing the condition
and (3) he fails to repair the condition.
1. E.g. concert hall, museum, convention center.
v. Seasonal or short-term lease of furnished dwelling: L is liable for all defects
that cause harm to T, even if he neither knows nor has reason to know of such
defects. 3 Months. [this is the broadest liability L’s have]
vi. Modern trend: reasonable care- L held liable for injuries resulting from ordinary
negligence.
f. Assignments & Subleases: Absent restrictions in the lease, a T may transfer her
leasehold interest in whole [assignment] or in part [sublease]
i. Non-assignment or sublease clauses: Strictly construed against L. In the lease,
L can prohibit T from assigning or subletting without L’s prior written approval.
BUT once L consents [e.g. accepts rent from assignee] to one transfer by T, L
waives the right to object to future transfers by that T unless L expressly reserves
that right.
ii. Assignment: Entire remaining leasehold transfers from T to assignee.
1. Privity of estate: [Property-based nexus that comes from possession]
Assignee is in privity of estate with L – i.e. they are both ONLY bound
by all covenants that run with the land [most of the covenants in the
lease] and rent payments. They are not in privity of K, unless T2
explicitly assumed all original lease promises/covenants and
performances. [rare]
a. Covenants that run with the land: pay rent, to paint the
premises, to repair
2. Privity of K: Assignor remains in privity of K with L, but no longer in
privity of estate. L and T1 are now secondarily liable to each other.
 a. Secondary liability  if T3/2, wrongdoer, is unavailable or
judgment proof, T1 is the backup/secondarily liable. When T2
assigned to T3, T2’s privity of estate ended- no longer liable.
b. SO, Assignee owes rent directly to L, but assignor may be held
secondarily liable for unpaid rent.
iii. Successive L’s: L can transfer to a new L without consent of T. New L will be
in privity of estate with the T and the old L will be in privity of K. [original L
remains liable for all covenants in lease]
iv. Sublease: Partial leasehold transfers from sublessor to sublessee.
1. Sublessor: Privity of estate & privity of K with L – i.e. relationship
unchanged. Sublessee pays rent to sublessor as her T.
2. Sublessee: No privity between T2 and L. T2 not liable to L for rent and is
not bound by any covenants unless expressly assumed. T2 is liable to T1
and vice versa.
g. Leasehold taken by eminent Domain:
i. Entire: if entire leasehold is taken by ED, T is no longer liable to pay rent.
Lessee will share in condemnation award if the fair rental value exceeds the rent
due under the lease.
ii. Temporary or partial: If the taking is temporary or partial T is NOT discharged
from paying rent but is entitled to compensation for the taking. [share of
condemnation award].
6. SERVITUDES:
a. Easements: non-possessory interest that confers the right to use or enjoy another’s
land.
i. Servient tenement: the burdened land that is being used/enjoyed.
ii. Dominant estate: benefitted land [not always applicable]
iii. Either Affirmative or negative
1. Affirmative Easement: entitles holder to make affirmative use [right to
do something] of the servient estate. [most]
a. Creation: PING
i. Prescription: [like adverse possession]
ii. Implication:
iii. Necessity:
iv. Grant: writing signed by grantor
b. Remedy: Injunction or damages
2. Negative easement: entitles holder to restrict/prevent the servient
estate from otherwise permissible activities.
a. E.g. restrict neighbor from building so high to prevent light.
b. 5 types: light, air, lateral or subjacent support, flow of artificial
stream, & [minority] scenic view.
c. Can also be a restrictive covenant
d. Creation: can only be created expressly by writing signed by the
grantor. There is no natural or automatic right to a negative
easement.
iv. Either Appurtenant to the land or in gross
1. Easement Appurtenant: entitles dominant estate holder to use servient
estate’s land.
 a. Attaches to the dominant estate and passes automatically [even if
not mentioned in conveyance]
b. Servient tenement passes automatically unless the new owner is a
BFP without notice.
2. Easement in Gross: Entitles an individual or entity [not dominant
landowner] to use the servient estate. Easement only confers a personal
or pecuniary advantage that is not related to use or enjoyment of land.
a. E.g. right to place billboard on lot, right to run utility across land,
right to fish in another’s pond.
b. Similar to a license, but irrevocable; may be transferred/assigned
but only for commercial purposes.
c. Does not attach to the land – there is no dominant estate. It’s
only a servient tenement because the land is burdened not
benefitted.
v.
7. Notice statutes 3 diff types. Real trick is knowing which language goes with which
statute.