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Real Property (Rights in Real Property (Easements: an interest to use the…

- - - - Privity
        
        vertical privity: refers to the relationship b/w an original party to a running covenant and the successor in interest to the original party. In order for the burden to run, privity of estate will only exist when the holder of the servient estate transfers ALL of his interest in the servient estate to the new owner.
        
        horizontal privity refers to the relationship b/w the original covenantor and convenantee. Requires privity of K in connection w/ land (LL/T, grantor/grantee, mortgagor/mortgagee)
      - Notice: The current owner of the servient estate must take w/ notice of the restriction (req on servient side only)
        
        constructive notice: covenant is in a deed in the chain of title record, which buyers have a duty to inspect
        
        Inquiry notice: you learn just enough info that would lead a reas person to inquire further. (all the homes in the area are painted the same, etc.)
        
        actual notice
      - Intent that the covenant runs w/ the land: The writing (SOF APPLIES) must include language that shows the parties' intent for the covenant to bind successors in interest. If you can establish touch and concern, intent is presumed.
      - Touch and concern the use and enjoyment of the land
        
        Servient estate: restriction must reduce the use and enjoyment of the servient estate
        
        Dominant estate: increase the use and enjoyment of the dominant estate
    - - Restriction is a part of a common scheme or plan for development of the area. Factors: a large % of lots expressly burdened, oral reps to buyers, statements in advertisements to buyers, or recorded plat maps or other declarations. AND:
      - Current owner of the servient estate takes w/ some sort of notice of the restriction (usually inquiry)
  - - - An affirmative easement may also be created by prescription, which is similar to adverse possession, req'ing the use of the property that is open and notorious, continuous, exclusive, actual, and non-permissive (hostile).
      - Implied, By necessity: Reqs: 1) common ownership of dom and serv estates, then severance, and 2) strict necessity
      - By implication, from prior use: Reqs: 1) common ownership of dom and serv estates, then severance 2) continuous prior use (quasi-easement), 3) prior use was apparent or could be discovered upon a reas inspection, and 4) reas necessity for the easement to continue
      - Expressly: a writing that satisfies the SOF
    - - written release expressly terminating his rights in the easement (must satisfy the SOF)
      - Merger of title: When the dominant and servient estates come into common ownership
      - End of a time period, if easement is created for a specific term
      - Abandonment: 1) affirmative act (words or conduct) in furtherance of: 2) intent to abandon
      - Severance: owner of dominant estate tries to sever the easement from the dominant estate (only arises w/ easement appurtenant)
      - Rx: oner of the servient estate interferes w/ the use of the easement for the statutory period
      - When a gov body acquires the servient estate through an exercise of its eminent domain power
      - Servient estate is sold to a bona fide purchaser (pays value and takes w/o notice)
      - Estoppel: owner of the servient estate foreseeably and detrimentally relies on the holder's action/abandonment
      - End of necessity
      - Destruction of the servient estate unless the owner of the servient estate intentionally caused the destruction
    - - "surcharging" the easement = going beyond what is reasonable. Doesn't terminate the easement, but the servient estate can sue for an injunction or damages
        
        Easement owner has duty to maintain and repair the easement Servient estateholder is entitled to reas compensation for damage done by easement owner. However, servient estateholder is not entitled to have the land restored to its previous special condition if such restoration costs more.
  - - - If the land would have subsided anyway --> remains strictly liable
      - If the weight of the improvement caused the land to subside, the adjoining landowner is liable only if he was negligent in depriving the property of lateral support
- - - - Periodic: Set beginning and continues from period to period, such as month to month, w/o a set termination date until notice is given. Created expressly or impliedly, w/ a holdover tenant.
        
        Appropriate notice must be 1) in writing if lease/statute specifies (otherwise can be oral) and 2) equal to the rental period up to a max of 6 months (ex: year-to-year tenancy --> 6 mos. notice)
        
        Timing of notice: CL: had to be given at the start of a rental period (1st of month). ML: notice is good whenever given, but does not take effect until the start of the next period (and tenant must then remain for that whole period).
      - At will: No fixed duration. Generally created expressly. Terminates if either party dies; the tenant commits waste; the tenant attempts to assign his interest; the landlord transfers his interest; or the landlord transfers the premises to a 3d party for a term of years. Most states provide for 30 days' notice.
      - Term of years: Definite beginning and end. Created by express agreement b/w LL and T for a term specified in lease (not nec. the same as rent payment schedule). No notice req'd to terminate -- terminates automatically at the end of the term, and ONLY that way (not death or incapacity)
      - Tenancy at Sufferance/Holdover Tenancy: Tenant remains in possession of the leased premises after the end of the lease term. A holdover T creates either a periodic tenancy or a tenancy at sufferance.
        
        If LL accepts rent (wants tenant), periodic tenancy is created --> lease rent
        
        If LL does not accept rent (doesn't want tenant), a tenancy at sufferance is created --> The landlord can recover possession and receive the MARKET VALUE RENT for the holdover period.
  - - - If yes, the future interest is removed and the rest is interpreted accordingly. (If an e.i. to a FSD violates, it becomes an FSD w/ possibility of reverter by the grantor. If an e.i. to a FSSCS violates, it becomes an FSA b/c there's no specific right of re-entry language)
      - If no, the interest will stand
    - - Interests NOT subject to RAP:
        
        Charitable trusts
        
        Resulting trusts
        
        Present possessory estates
        
        Fully vested interest at creation, such as reversionary interests and completely vested remainders
      - Interests subject to RAP
        
        Powers of appointment
        
        Rights of first refusal
        
        Options to purchase land
        
        Interests not fully vested at creation, such as
        
        Contingent remainders
        
        Executory interests
        
        Vested remainders subject to open
  - - - Right of survivorship: at the death of one joint tenant, the interest of the surviving joint tenant absorbs the interest of the deceased joint tenant. Only the last surviving joint tenant has an interest that is devisable.
      - Severance: Joint tenancy severed if one joint tenant conveys his interest voluntarily or involuntarily (creditor forces sale). Tenancy in common then results. Severance can occur inter vivos 3 ways --> If one of the parties:
        
        joint T sells his interest in the property. If a joint T contracts to sell his part, then dies before title transfers, the severance completed but because the decedent held legal title still (and the buyer equitable), the decedent's share of the pass via intestacy or will rather than to the buyer, in TIC. But whoever inherits the legal title is obligated to complete the contract (giving the property to the buyer at the closing date).
        
        joint T mortgages his interest in the property
        
        Majority view (lien theory): mortgage is viewed as a lien and does not sever interest. Mortgagee receives a lien and the joint tenant retains legal and equitable title and possession of the property.
        
        Minority view (title theory): mortgage is viewed as a title, and severs the property
        
        seek a partition action. A forced sale and division of the proceeds is allowed where a fair and equitable physical division of the property is not possible.
      - Creation
        
        Traditionally, four unities req'd:
        
        Unity of interest--joint tenants must take equal shares of the same type
        
        Unity of time--joint tenants must take at the same time
        
        Unity of possession--each joint tenant has the right to possess the whole
        
        Unity of title--joint tenants must take by the same instrument
        
        Today, most jxs require only Interest and Possession
    - - Severance occurs when: 1) they jointly convey the property to another, 2) one spouse conveys property to the other, or 3) divorce
    - - Transfer: co-tenant may transfer his interest inter vivos
      - Divisibility: Co-tenant may devise his interest and the interest can descend by intestacy
      - Creation requires: Possession: Unity of possession--each joint tenant has the right to possess the whole
    - - Profits
        
        A profit produced by one of the co-tenant's efforts: other co-tenants have no right to share in those profits (unless they've been ousted from the property)
        
        A profit generated by a 3rd party (rent): all co-tenants are entitled to a proportionate share of the profit
      - Expenses:
        
        Repairs: a co-tenant may be permitted to reimbursement from rents collected
        
        Improvements: Generally, a co-tenant is not entitled to reimbursement. Exception: if property is sold (or rent is collected), amt attributable to the improvement goes to tenant who made the improvement
        
        Taxes/mortgage payments: each co-tenant must pay proportionate share. Can seek contribution through partition, but if he is in sole possession of the property, he will receive reimbursement only to the extent that his payment exceeds the market value of the property.
      - Possession: each co-tenant is entitled to possess the whole property
  - - - Fee Simple Subject to a Condition Subsequent: "To A ... provided; however; however if; but if; on condition that; or in the event that..." (conditional language)
        
        Possible Future Interests: Right of Reentry or Power of Termination
        
        Characteristics of Future Interest: Does not automatically terminate the estate; "O may reenter and terminate/retake 's estate" --> MUST have this language. If ambiguous, cts treat it as an FSA (failed FSSCS) and a breach of K (if the condition is broken, they keep the property but pay damages for breach).
        
        RAP: depends
      - Fee Tail: "To A and the heirs of his/her body"
        
        Possible Future Interests: Same as Life Estate
        
        RAP: Reversion: No. Remainder: Yes
        
        Modern Law: fee tails are disfavored and are treated as a FSA
        
        Common Law: an estate that descended to grantee's children only (usually only males)
      - Fee Simple Subject to Executory Interest (conditional or durational language)
        
        Possible Future Interests: Shifting/Springing executory interest (Power of Termination)
        
        Characteristics of Future Interest: Automatically terminates the estate on the happening of an event, and passes to 3rd party
        
        RAP: Yes
      - Fee Simple Absolute (CL): "To A and his/her heirs
        
        RAP: N/A
        
        Possible Future Interests: None
      - Fee Simple Absolute (ML): "To A"
        
        Possible Future Interests: None
        
        RAP: N/A
        
        "best estate": A has all possible rights a person may have in land
      - Fee Simple Determinable: "To A for ... so long as; during; while; until..." (durational language)
        
        Characteristics of Future Interest: Created in grantor
        
        RAP: No
        
        AUTOMATICALLY terminates on the happening of the named event, and estate returns to grantor (possibility of reverter)
        
        Possible Future Interests: Possibility of Reverter
    - - L.E. pur autre vie: "To A for life of B"
        
        Characteristics of Future Interest
        
        RAP: Reversion: No Remainder: Yes.
        
        Possible Future Interests: Reversion/Remainder (contingent or vested)
      - Life Estate: "To A for life"
        
        Characteristics of Future Interest:
        
        RAP: Reversion: No. Remainder: Yes
        
        Possible Future Interests: Reversion/Remainder (Contingent or Vested) -- if L.E. is made to be defeasible
      - Life Estate can be made defeasible if the life estate holder breaches certain duties. LE holder must maintain the property:
        
        Duty to not adversely affect the future interest (waste): --> does NOT apply to freehold estates
        
        Duty to pay mortgage interest
        
        Duty to pay all ordinary taxes
        
        Duty to repair and maintian
        
        Duty to pay the full cost of special assessments if the life of the public improvement is less than the duration of the life tenant's estate. Equitable apportionment is applied to improvements likely to last longer.
      - Life tenants CAN convey their property b/c its alienable (unless there is a restriction in place) but they can't convey less than what they have (so only until they die --> it becomes a LE pur autre vie)
    - - Term Estate = estate that is limited in duration
      - Leasehold: conveys the right to exclusive possession, rather than title to the property
  - - - Transferability: CL: could descend through intestacy or will, but could not be devised or transferred inter vivos. ML: freely transferable, devisable, and descendible
    - - Contingent Remainder: any remainder that isn't vested
      - Vested Remainder: a remainder that is 1) created in an ascertainable person and 2) not subject to any condition precedent other than termination of preceding estate
        
        Vested remainder subject to total divestment: vested presently, but may be terminated on happening of a future event
        
        "A to B for life, remainder to C, so long as liquor is never served on premises" --> C has vested remainder but could lose it
        
        Vested remainder subject to open: a remainder to a class w/ at least one ascertainable member who has satisfied any conditions precedent to vesting, but other members may join the class later.
        
        Class opening
        
        Testamentary: class opens at death of testator
        
        Inter vivos conveyance: opens at time of conveyance.
        
        Class Closing:
        
        RAP can void a future interest: if any member of a class could potentially claim in a way that violates the RAP, it will knock out the entire class gift
        
        Rule of Convenience: class closes as soon as one member of the class becomes entitled to immediate possession of property
    - - Creation: NOT automatic. MUST be spelled out in conveyance.
      - Transferability: CL: could descend through intestacy or will but not inter vivos. ML: freely descendible and devisable but many jxs still limit inter vivos transfers
    - - Shifting EI: passes from grantee to grantee (most common)
      - Springing EI: transfers property from grantor to grantee or grantee to grantor
      - Subject to RAP
    - - Creation: a FSD automatically creates POR, no special language needed. Upon happening of the specified event, the land automatically reverts back to grantor
      - Transferability: CL: could not be devised or transferred inter vivos -- only intestacy ML: freely transferable, devisable, and descendible
    - - Waste: owner of less than a fee estate (LE, TE) cannot commit waste
        
        Permissive Waste: must take reas steps to avoid damage
        
        Ameliorative Waste: tenant makes improvements to the land
        
        Common Law: tenant was not allowed to make substantial alterations unless authorized to do so. T could be liable for cost of restoring land to its previous condition
        
        Modern Law: a tenant is now allowed to commit ameliorative waste if: 1) market value of remainderman's interest is not impaired, 2) permitted by remainderman, or 3) substantial and permanent change in neighborhood that justifies improvement.
        
        Voluntary Waste: cannot intentionally or negligently damage property
        
        Open Mines Doctrine: A LT has the right to continue operation of EXISTING mines on the property (w/o accounting to remainderman), but a remainderman can enjoin the opening of new mines --> voluntary waste.
      - A remainderman has standing to sue for past or future waste
        
        Vested remainderman: can sue for damages or an injunction to stop waste from occurring
        
        Contingent remainderman: can sue for an injunction to stop waste from occurring (no damages)
  - - - On a fee: generally not valid
      - On less than a fee: will be upheld if reas.
  - - - T's obligations: Not to commit any kind of waste. CL: no obligation to make improvements and LL could hold T liable. ML: T can improve if expressly authorized or a change in circs warrant the improvements to be made
      - Fight over possession: LL can retake the property if the T has committed a material breach of the lease. CL: LLs were entitled to use reas force to retake possession form the T. ML: majority of jxs no longer allow use of any force and LL must use legal process. Retaliatory evictions (for the tenant asserting their legal rights) are not allowed.
      - LL's obligations. CL: LL has no obligation to maintain or repair leased premises. ML: warranty of habitability (see T's defenses under rent fight)
      - Dispute over improvements. CL: anything (except a trade fixture) affixed to the land became part of the land and had to stay, but a trade fixture (item used in the course of the T's trade or bus) could be removed unless removal would cause substantial damage to the property. ML: if the fixture can be removed w/o effecting the premises, the T is entitled to remove the fixture (no distinction w/ trade fixtures). Must be removed before lease expires except for tenancy at-will, they then have a reas time
    - - Tenant's transfer of interest
        
        Assignment: T transfers all of the remainder of the rental obligation
        
        Sublease: T transfers only a portion of the time left on the rental obligation
        
        Liability of the parties
        
        Assignment: assignee comes into privity of estate w/ LL and is liable to LL for rent unless he re-assigns to a new assignee who takes over privity of estate. LL can sue both assignee and T for rent, unless there is an express novation w/ the LL that releases the T from liability.
        
        sublease: sublessee comes into privity of estate and privity of K with the tenant only, owing the T rent. T continues to owe rent to LL.
      - Transfer of interest in leases: Unless overrode by K, interests in leases are fully transferable. To prohibit both an assignment and a sublease, the lease must specifically state that both are prohibited.
      - LL's transfer of interest: Whoever is the LL of record on the date rent is due is entitled to that rent
      - Dumper's Rule: a condition against assignment is "entire and indivisible" and having once been waived cannot be enforced again (BUT if landlord says "one time only" when allowing an assignment, the anti-assignment clause WILL reset after the one approved assignment)
    - - How much rent the LL can sue for
        
        Periodic Tenancy: T liable for rental obligation until notice is given to terminate the lease
        
        Tenancy-at-will: T liable for amt of rent stated in the agreement that is already owed
        
        Tenancy for years: T is responsible for all unpaid rent in the lease. CL: LL could only sue for rent as it accrued. ML: anticipatory repudiation, but LL has a duty to mitigate (make reas efforts to rent the property)
        
        Tenancy at sufferance: T liable for the reas rental value of the property
      - T's defenses
        
        Failure to deliver possession. Majority (English/Anglo-Saxon) rule: LL has obligation to deliver possession. Minority ("American") rule: LL has no obligation to deliver possession of the premises; T must take it
        
        T has been evicted
        
        Actual eviction: T is physically removed from all OR PART of the property (T is excused from paying rent)
        
        Constructive eviction: the property is in such bad condition that T is essentially being forced out (T must actually move out w/in a reas time). If action of 3rd party that is CE-ing, LL should have reason to know of the interference
        
        Total CE: defense to the payment of ANY rent
        
        Partial CE: pro rata REDUCTION in rent only
        
        T surrenders premises to LL: LL must accept the surrender and retake possession of the premises (retaking for the duty to mitigate is not enough for acceptance of surrender)
        
        Destruction: CL: generally did not excuse payment of rent. ML: destruction is a defense to payment of rent (unless T intentionally or negligently causes the destruction)
        
        Warranty of Habitability: Requires LL to maintain the premises in a habitable condition. Majority rule: applies to residential leases only. Minority rule: applies to residential and commercial leases. Rule: to claim breach of implied warranty of habitability, the T must:
        
        provide LL w/ notice AND
        
        allow LL reas time to repair it
- - - - Price
      - Description of the property
      - Any conditions of price or payment agreed upon
      - Description of the parties
    - - Doctrine of Part Performance: The acts of part performance unequivocally prove the existence of the Ks, and a showing of some combination or all 3 of:
        
        payment of all or part of the purchase price
        
        taking of possession (moving in)
        
        making substantial improvements
      - Equitable and promissory estoppel to prove an oral K for the sale of land:
        
        equitable estoppel is based on an act or a representation
        
        promissory estoppel is based on a promise
  - - - Covenant or easement that restricts use of land (not ones that benefit the land)
      - Defects in the chain of title, such as adverse possession, defective execution of a deed, or significant variation of the description of the land.
      - Existing condition on the land that violates a zoning ordinance (but not a zoning ordinance itself)
      - Encumbrances such as mortgages, liens, easements, leases, and covenants
        
        Be careful: seller may satisfy a mortgage or lien at closing w/ the proceeds
  - - - General warranty deed: the grantor warrants that no title defects exist in the chain of title -- contains all 6 covenants of title, covering the entire period prior to the sale. Buyer can sue through the covenants of title.
      - Special warranty deed: the grantor warrants that no title defects occurred during ONLY his ownership of the property, but does not warrant against title defects that occurred prior to his ownership. May contain some or all of the 6 covenants, and buyer can sue through them.
      - Quitclaim deed: the grantor provides no warrants. The grantee takes whatever interest the grantor had. Buyer can't sue
    - - Seisin: grantor promises he owns the property. Existence of an encumbrance does not breach this
      - Right to convey: grantor promises he has the power to convey the property. (A trustee may be seized of the fee but not able to convey it according to the trust document)
      - Covenant against encumbrances: grantor promises there are no encumbrances on the property (no 3rd person has a right that diminishes the value or limits the use of the land, including:
        
        mortgage and judgment liens
        
        taxes
        
        leases
        
        water rights
        
        easements
        
        restrictions on use
    - - Warranty: grantor promises he will defend the grantee against any 3rd-party claims and will compensate the grantee for losses sustained by the assertion of superior title.
      - Further assurances: grantor promises he will do everything reas necessary to perfect grantee's title
      - Quiet enjoyment: grantor promises that grantee won't be disturbed by a 3rd party asserting a valid claim to the land
- - - - Sue grantee on the debt as the grantee is primarily liable; or
      - Sue mortgagor/grantor on the debt as secondarily liable
        
        Mortgagor/grantor could then seek reimbursement from the grantee personally.
        
        Or, grantor can, via exoneration, get a court order compelling the grantee to pay the debt
      - Foreclose on the real property
    - - Sue the mortgagor/grantor on the debt.
        
        Could then foreclose on the property, but may not successfully pursue a personal action against the grantee.
      - Foreclose on the real property now owned by the grantee; or
  - - - note (represents the personal obligation of debtor to repay the debt)
      - creditor's remedies: choice to sue in personam (on the note) or in rem (foreclosing on the land)
      - mortgage (doc that represents an interest in land)
  - - - Private sale/power of sale
      - Judicial Foreclosure
    - - A mortgagee is not allowed to "clog" (prevent or shorten) a mortgagor's EQUITABLE (pre-foreclosure) right to redemption via contract. Pre-foreclosure: equitable right to redeem. Post-foreclosure: MAY have a statutory right in some states.
- - - - Physical: Occupies land in a manner suff. to put the true owner on reas notice of the AP. Minority rule: reqs APer to also pay taxes on the property
        
        Open and notorious: visible if owner had visited and inspected the property
        
        Exclusive (exclusion of true owner)
        
        Actual: using the land similar to how a reas owner of the land would have
      - TIme
        
        Continuous possession for the statutory period. Common law: 20 years
        
        If the adverse possessor has not been in possession for the full statutory period, he may still meet the time period by tacking his period of possession onto that period of possession of another possessor if the possessors are in privity of estate, which occurs when there has been a voluntary transfer of possession from the first adverse possessor to the second adverse possessor, such as by deed. The statutory period may also be tolled if the owner has a disability at the time the adverse possessor enters, but NOT AFTER
        
        SOL can't START if 1) non-age, 2) incompetence, 3) imprisonment. But if the period has validly STARTED, any of those three beginning will NOT TOLL the SOL.
      - Mental
        
        Non-permissive (hostile) -- claiming land as your own
        
        Claim of Right: claiming land as your own
        
        Color of title: falsely believe you have good title to the property under a deed
        
        Permission by owner for APer to be on land destroys hostile intent. But if owner is just "allowing" it and saying nothing (no permission, no "get off my land"), it can still be hostile
        
        Split of authority on whether encroachment is hostile intent: Majority rule: a mistaken encroachment is suff hostile intent. Minority rule: hostile intent exists only if the person who was doing the encroaching intended to encroach
    - - Exception: when claiming under color of title, APer gets all the land described in the flawed deed
      - APer gets whatever the true owner has (if owner sold sub-surface rights, APer gets surfacer rights only)
    - - True Owner: can eject the APer and collect damages up to the point the statutory period has run
      - APer: 1) when the AP begins, the APer is considered to be the owner against the entire world except the true owner. 2) once the SOL runs, the APer is the true owner as of the date he entered the land
    - - Requirements: 1) parties uncertain/unaware of true boundary line, 2) express or implied agreement as to the location, 3) possession that conforms to the agreement
      - Remedy: possession awarded as to the "agreed" line (not the "true" line). Will bind future parties, and can only sue the person you bought it from under a covenant, not the neighbor.
  - - - 2) Delivery exists if grantor has the mental intent to transfer the property to the grantee. Delivery is usually accomplished by the physical act of handing the deed over to someone else. Mere words including a declaration of intent and relinquishment of control can accomplish delivery.
        
        A presumption of delivery arises if:
        
        The deed is later found in the grantee's possession
        
        the deed contains an attestation clause that attests to delivery
        
        the deed is property executed and recorded; or
        
        Handling the deed to an agent/escrow does not constitute delivery until the agent delivers the deed to the grantee or grantee's agent. That triggers the doctrine of relation-back as long as the grantor relinquishes all control over the deed. When delivery is accomplished through the agent, delivery relates back to the date the grantor handed the deed to the agent. If grantor expressly retains right to reclaim deed from 3rd party, there is no transfer of title
        
        Presumption of NO delivery arises if:
        
        Grantor makes out a deed but retains it
      - 1) Deed Suff to Satisfy SOF: 4 written reqs of a valid deed:
        
        Suff. identification of the parties
        
        Words indicating an intent to make a present transfer of the property
        
        Suff description of the property, AND
        
        Grantor's signature (grantee doesn't need to sign deed)
      - 3) Acceptance of the deed by the buyer: Acceptance is presumed if the transfer is beneficial to grantee. If grantee refuses to accept, there's no transfer of property.
    - - Courses and angles
      - Distances
      - Artificial monuments
      - Name and quantity
      - Natural monuments
    - - Ademption
        
        Ademption by extinction: property is described in a will but isn't in testator's estate at time of death
        
        Ademption by satisfaction: property was gifted during testator's lifetime but the property is still mentioned in the will
        
        If a gift of property was made during testator's lifetime, but a general devise is in the will (1/3 of my estate), then the property already received will not be adeemed by satisfaction unless:
        
        will provides for deducting the gift
        
        testator, in writing, declared that the gift was part of the general devise, or
        
        devisee, in writing, acknowledged that the gift was part of the general devise
      - Exoneration: Majority rule: inherited property is taken subject to all outstanding liens and mortgages (estate does not pay them off)
      - If seller dies after executing a sales K but before closing, decedent's personal representative must complete the sale. Money received goes to the beneficiary who inherits personal (not real) property
      - Lapse: CL: if a beneficiary predeceases a decedent, any gift to the beneficiary fails. ML: many states now have anti-lapse statutes (beneficiary's heirs "stand in his shoes" and get the bequest)
  - - - Three types of recording statutes. Recording statutes apply to the recording of MORTGAGES as well as deeds (in priority fights).
        
        Race-notice statute: an unrecorded conveyance is invalid against a subsequent BFP who takes for value and w/o notice and who records first.
        
        TO prevail, the claimant must prove:
        
        The claimant took the property w/o actual, constructive, or inquiry notice, and
        
        The claimant took subsequent in time to another person claiming ownership
        
        The claimant recorded first.
        
        The claimant was a BFP for value
        
        Shelter rule: provides protection for a subsequent purchaser who does not satisfy the applicable recording statute. Under the shelter rule, a person who is a successor in interest to a person protected by the recording statute is also protected.
        
        Race statute: the person who records first prevails
        
        Notice statute: an unrecorded conveyance is invalid against a subsequent BFP who takes for value and w/o notice.
        
        To prevail, claimant must prove:
        
        The claimant took subsequent in time to another person claiming ownership
        
        The claimant was a BFP for value -- more than a nominal amt (purchase price or reas amt)
        
        The claimant took the property w/o actual, constructive, or inquiry notice
        
        BFP claimaint took in good faith
        
        Constructive notice exists if the other party's deed is recorded in teh proper chain of title in the record books. Inquiry notice exists if the appearance of the property is such that the claimant should have asked more questions about the property's title. A quitclaim deed gives rise to inquiry notice.
      - Indexes
        
        Grantor-Grantee Index (Majority): Two sets of books where the conveyance is recorded: one arranged by name of grantor, and the other by name of grantee.
        
        Tract Index (Minority): A legal description of the tract of land followed by a chronological listing of all conveyances involving that piece of land. You would immediately see any recorded conveyance and will always have constructive notice of a claim to property.
    - - Majority rule: if grantor transfers title to property before he has title to property and then attempts the transfer to another person, the first grantee may go to court and estop the grantor from denying title to him
      - Minority rule: title automatically passes by operation of law to grantee (operation-of-law theory)