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 CALIFORNIA 
 
 ®I|p i£um of 
 
 WHAT IS REAL PROPERTY. 
 
 OWNERSHIP AND CONTROL OF REAL 
 PROPERTY. 
 
 CONTRACTS OF SALE OF REAL 
 PROPERTY. 
 
 TRANSFER OF REAL PROPERTY. 
 
 LANDLORD AND TENANT. 
 
 REAL ESTATE AGENTS. 
 
 Compiled for the Publishers from the codes 
 and decisions of the Courts by 
 
 \A/AI_TER GOULD LFNCOL-N 
 
 1913 
 
 Published by 
 
 GILLESPIE'S BOOK STORE, 
 
 Los Ang-eles, Cal.
 
 T 
 
 \913 
 
 NOTE 
 
 The statements of law and the forms as set 
 forth herein are intended for the state of Cali- 
 fornia only, and do not pretend to conform to 
 the law of any other state. It is hoped the 
 book will be found of much practical value, and 
 that it will meet the popular demand for a 
 work of this character. 
 
 THE PUBLISHERS. 
 
 Copyright, 1913, 
 by R. L. Gillespie
 
 c 
 
 u. 
 
 h 
 
 CHAPTER I. 
 
 WHAT IS REAL PROPERTY. 
 
 All property is divided into two 
 classes: 
 
 1. Real. 
 
 2. Personal. 
 
 Just when property is to be classed as 
 real, and when as personal, is often a 
 very vexatious question. If it always 
 maintained exactly the same form and 
 characteristics there would not be much 
 difficulty; but unfortunately it doesn't. 
 
 Personal property may undergo a sud- 
 den transformation into real property as 
 the result of the mode of affixing it to 
 land, while in other cases it may still re- 
 tain its character as personal property. 
 
 Likewise real property is readily con- 
 verted into personal property because of 
 some change in form by the operation of 
 nature, the act of God, or the desire and 
 contrivance of man. 
 
 This may be illustrated with the case 
 of a house, barn, or shed. When affixed 
 to the land of the owner it is in the eyes 
 of the law just as much a portion of the 
 land as the soil itself, and passes with 

 
 4 THE LAW OF REAL ESTATE 
 
 the land as a matter of course, even if 
 not in any way mentioned in the deed or 
 contract of sale; but sever the house, or 
 barn, or shed from the land, or tear it 
 down and pile it up on the land, and it 
 immediately becomes personal property. 
 In the one case it is governed by one 
 set of laws, and in the other by an en- 
 tirely different set. In the former, as 
 real property, every contract affecting it, 
 except a lease for one year or less, must 
 be in writing in order to have any stand- 
 ing in court as a legal transaction; in 
 the latter, as personal property, such 
 contracts need not necessarily be in 
 writing, but are governed by the laws af- 
 fecting personal property. 
 
 The troublesome law of fixtures and 
 improvements, their ownership and the 
 right to remove them, the matter of 
 crops, and growing things, and the right 
 to harvest them, as between vendor and 
 vendee, and again as between landlord 
 and tenant is involved in this vexatious 
 question as to when property is real and 
 when personal. 
 
 That it is a vexatious question and 
 not a simple one is shown by the vast 
 amount of litigation over it, as evidenced 
 by the court records, the many contra-
 
 THE LAW OF REAL ESTATE 5 
 
 dictory decisions in the different states, 
 and the great amount of studious thought 
 and labor which has been expended in 
 the judicial adjustment of this subject 
 by the most learned jurists and brightest 
 intellects of the world. 
 
 In this article an endeavor will be 
 made to show as plainly, and with as 
 much certainty as possible, the estab- 
 lished practice in this state for distin- 
 guishing between property which is real 
 and that which is personal. 
 
 DEFINITION OF REAL PROPERTY 
 
 By the Civil Code of California. — 
 
 T\Iany definitions of real property may 
 l)e found in the law dictionaries, but the 
 civil code of this state furnishes its own 
 interpretation of the term. It declares 
 that real property consists of: 
 
 1. Land. 
 
 2. That which is affixed to land. 
 
 3. That which is incidental or ap- 
 purtenant to land. 
 
 4. That which is immovable by law. 
 
 WHAT IS LAND 
 
 Civil Code Definition. — Land is the 
 solid material of the earth, whatever may 
 be the ingredients of which it may be
 
 6 THE LAW OF REAL ESTATE 
 
 composed, whether soil, rock, or other 
 substance. 
 
 To What Ownership of Land Extends. 
 — The owner of land has the right to the 
 surface and to everything permanently 
 situated above or beneath it. 
 
 This right is supposed to extend down- 
 ward to the center of the earth, and an 
 indefinite distance upward toward 
 heaven. 
 
 It is likewise a doctrine of law that the 
 owner of land owns also the air over it, 
 and he is protected from all encroach- 
 ments on his property, even to the ex- 
 tent that no one may construct any- 
 thing in any w^ay overhanging the land 
 of another; not so much as an eavespipe, 
 cornice, or gutter. 
 
 On this theory all the atmosphere over 
 the land area of the earth is held in pub- 
 lic and private ownership. Therefore an 
 aviator passing through it in his airship 
 without permission is a trespasser, and 
 does so by sufferance of the owner of the 
 underlying realty. 
 
 But as there is in reality no such 
 thing as absolute ownership in land, the 
 degree or tenure of ownership being en- 
 tirely a matter of legislative will and 
 enactment, and as the law prescribes the
 
 THE LAW OF REAL ESTATE 7 
 
 conditions of man's entrance upon the 
 earth, rules for his actions while passing 
 through life, and administers his estate 
 when he has passed on, it will of neces- 
 sity modify its rules, as it has done many 
 times before, to suit changed conditions 
 as they occur. 
 
 Therefore it seems reasonable to in- 
 fer, that as man has heretofore given up 
 many of his supposed exclusively per- 
 sonal rights for the good of society in 
 general, that he will be called upon to 
 irrant free passage or right of way over 
 his real property to the airships of the 
 world, subject to proper restrictions, 
 without compensation therefor. 
 
 Wireless telegraphy and telephony 
 form another instance which will neces- 
 sitate legislative modification of the ac- 
 cepted theory of proprietorship of every- 
 thing above and below the surface by the 
 owner of the land. 
 
 Already the shadows of this coming 
 event are beginning to assume interna- 
 tional proportions; it is a serious matter 
 which must some day enlist the wisdom 
 and diplomacy of the world in its solv- 
 ing. 
 
 In all sal3S and conveyances of sur- 
 face land areas, all coal, metals and min-
 
 8 THE LAW OF REAL ESTATE 
 
 erals of every description below the sur- 
 face, while in place, are regarded as land, 
 and constitute part of the estate which 
 passes by the conveyance without special 
 mention thereof. But under the system 
 practiced in the United States, and in 
 this state, mineral deposits may be sold 
 or conveyed by deed entirely separate 
 from the surface rights, or may be re- 
 served to the seller when he parts with 
 the surface. 
 
 When the surface owner conveys the 
 coal or other minerals under the land, 
 the grantee takes the minerals, but noth- 
 ing else, save the right of access to the 
 property for the purpose of mining and 
 removing them. When the minerals are 
 all removed the grantee's interest ceases, 
 and the space the minerals occupied re- 
 verts back to the grantor. 
 
 Oils and gases occupy much the same 
 position as water. They are real prop- 
 erty only while in actual occupancy of 
 the OAvner of the surface. They are us- 
 ually classed as minerals, and, so long 
 as they remain in place, are included in 
 the term land. But they may escape, 
 and therefore a grant of oils and gases 
 amounts practically to only a license to 
 sink wells or shafts and extract what-
 
 THE LAW OF REAL ESTATE 9 
 
 ever quantities of either may be found. 
 
 Commonly, also, within the term land 
 are included all houses and buildings 
 standing thereon, as well as all natural 
 produce of the soil. Our code, however, 
 does not include them within its defini- 
 tion of land, but instead treats of them 
 as things affixed to land, under which 
 heading they are defined. 
 
 Alluvion. — Where, from natural caus- 
 es, land forms by imperceptible degrees 
 upon the bank of a river or stream, navi- 
 gable or not navigable, either by accum- 
 ulation of material or by the recession of 
 the stream, it is termed alluvion, and 
 such land belongs to the owner of the 
 bank, subject to any existing right of 
 way over the bank. 
 
 Avulsion. — If a river or stream, navi- 
 gable or not navigable, carries away, by 
 sudden violence, a considerable and dis- 
 tinguishable part of a* bank, and bears 
 it to the opposite bank, or to another 
 part of the same bank, it is termed avul- 
 sion, and the owner of the part carried 
 away may reclaim it v.dthin a year after 
 the owner of the land to which it has 
 been united takes possession thereof. 
 But an acquiescence on his part will in 
 time entitle the owner of the land to
 
 10 THE LAW OF REAL ESTATE 
 
 which it is attached to claim it as his 
 own. 
 
 Islands. — Islands and accumulations 
 of land, formed in the beds of streams 
 which are navigable, belong to the state, 
 if there is no title or prescription to the 
 contrary. 
 
 An island, or an accumulation of land, 
 formed in a stream which is not navi- 
 gable, belongs to the owner of the shore 
 on that side where the island accumula- 
 tion is formed ; or, if not formed on one 
 side only, to the owners of the shore on 
 the two sides, divided by an imaginary 
 line drawn through the middle of the 
 river. 
 
 If a stream, navigable or not navi- 
 gable, in forming itself a new arm, di- 
 vides itself and surrounds land belong- 
 ing to the owner of the shore, and there- 
 by forms an island, the island belongs to 
 such owner. 
 
 Ownership of Overhanging and Line 
 Trees. — Trees whose trunks stand wholly 
 upon the land of one owner belong ex- 
 clusively to him, although their roots 
 grow into the land of another. 
 
 If it be a fruit tree, the fruit belongs 
 to the owner of the trunk. If his arms 
 be long enough he can reach over his
 
 THE LAW OF REAL ESTATE 11 
 
 neighbor's land and pluck the fruit, or 
 he can stand on the fence and do so. But 
 he cannot go upon the land of his neigh- 
 bor for this purpose without his permis- 
 sion. If he did so he would be a tres- 
 passer. 
 
 On the other hand, the adjacent owner 
 has the right tu lop off the roots and 
 branches of a tree which grow into or 
 overhang his land to the dividing line, or 
 to pick up the fruit which falls upon his 
 ground. 
 
 A tree whose trunk happens to stand 
 on the dividing line of two or more own- 
 ers belongs to them in common. Neither 
 can cut it down without the other's con- 
 sent, nor in any wise mutilate even the 
 portion on his own ground if the tree 
 is injured thereby. 
 
 The Right of Eminent Domain. — The 
 right to control the surface of his land, 
 as well as everything permanently sit- 
 uated above or below it, while inviolable 
 as between the owner and his fellow 
 man, is qualified by the superior right of 
 the state to re-assert, either temporarily 
 or permanently, its dominion over any 
 portion of the soil of the state, by reason 
 of public necessity, or for the public 
 good.
 
 12 THE LAW OF REAL ESTATE 
 
 Thus, in time of war or insurrection, 
 the proper authorities may possess and 
 hold any part of the territory of the 
 state for the common safety; and in time 
 of peace, appropriation of the same may 
 be made for public purposes, such as the 
 opening of roads, for railroads, or other 
 channels of trade or travel, parks and 
 public improvements. 
 
 It is the right Vv'hich government re- 
 tains over the estates of individuals to 
 appropriate or resume them for public 
 use whenever the public interest requires 
 it; for which, of course, adequate com- 
 pensation or payment must be made. 
 
 THINGS AFFIXED TO LAND 
 
 Civil Code Definition. — A thing is 
 deemed to be affixed to land when it is 
 attached to it by roots, as in the case 
 of trees, vines, or shrubs. 
 
 Or embedded in it, as in the case of 
 walls ; 
 
 Or permanently resting upon it, as in 
 the case of buildings; 
 
 Or permanently attached to what is 
 thus permanent, as by means of cement, 
 plaster, nails, bolts, or screws. 
 
 Growing Trees, Vines, and Shrubs. — 
 Under the above definition there can be
 
 THE LAW OF REAL ESTATE 13 
 
 no doubt that trees, both native to the 
 soil or planted, vines (including alfalfa 
 roots), shrubs, and all natural products 
 growing upon or out of the soil, are, 
 while in place, part of the real property. 
 Instantly they are severed from the land, 
 however, their character is changed from 
 real to personal, and must be treated as 
 such. 
 
 Likewise, when, upon sale of the land, 
 certain growing trees, vines or shrubs 
 are reserved to the seller in the convey- 
 ance the things thus reserved are there- 
 by converted into personal property, and 
 are no longer part of the real estate, al- 
 though still affixed or attached to the 
 land. They belong to the seller of the 
 land, who may enter for the purpose of 
 caring for or removing them, according 
 to the terms of his contract. 
 
 Trees and shrubbery grown upon 
 premises leased for nursery purposes are 
 generally held to be the personal prop- 
 erty of the lessee, subject to his removal 
 according to the terms of his lease. 
 
 Growing Crops. — In the law diction- 
 aries ''growing crops" are defined to be 
 those annual products of the earth which 
 owe their existence to the industry of 
 man by cultivation of the soil, including
 
 14 THE LAW OF REAL ESTATE 
 
 all forms of grain, roots, tubers, etc. In 
 this definition all fruits, berries, nuts, 
 etc., are excluded, they being classed as 
 natural products of the earth. To main- 
 tain such a distinction could but lead to 
 endless difficulties, so the legislature of 
 California declared that the term grow- 
 ing crops should include not only those 
 things which are the products of annual 
 plantings, but also those things which 
 are the subjects of annual harvesting; 
 and our courts, after much dalliance and 
 vacillation, have estabished as the set- 
 tled policy of this state that the term 
 embraces in its scope also the products 
 of our fruit and nut trees, vines, shrubs, 
 roots (such as alfalfa), etc., which are 
 customarily harvested and sold as an- 
 nual crops. 
 
 The present day practice is to treat 
 all growing crops as personal property 
 or chattels, even while still annexed to 
 the soil ; that is, they may be bought and 
 sold, mortgaged, or attached for debt, 
 the same as chattels, at all times subject 
 to the rules which govern personal prop- 
 erty, and not those which govern real 
 property. 
 
 But, again, although crops while at- 
 tached to land are usually regarded as
 
 THE LAW OF REAL ESTATE 15 
 
 personal property, yet under some cir- 
 cumstances they are held to be realt}', 
 and undoubtedly justly so. A distinc- 
 tion is made between GROWING crops 
 and RIPENED crops. 
 
 Where the crop is still green and im- 
 mature, unless reserved, it will pass un- 
 der a grant to the purchaser of the land, 
 since, being unfitted at this stage of its 
 growth for severance from the soil from 
 wdiich it derives its sustenance it must 
 be regarded as inseparably affixed to it, 
 thus losing its character as personal 
 property or chattels. 
 
 But in the case of ripened crops it is 
 different. It is held that wdien the crop 
 has ceased to draw nutriment from the 
 soil, and is ready for the harvester, it 
 can no longer be classed as realty so as 
 to pass with the land, but it assumes the 
 character of personalty, the fact that it 
 rests upon the land or upon the trees 
 unsevered being of no consequence. 
 
 Therefore, it may be said that crops 
 may be sold, mortgaged, attached for 
 debt, or otherwise regarded for all pur- 
 poses as personal property, with the ex- 
 ception that when immature they will 
 pass with a sale of the land as part of 
 the land, unless reserved in the convey-
 
 16 THE LAW OF REAL ESTATE 
 
 ance; but that when mature they are to 
 be regarded strictly as personal property 
 which does not pass with the grant, un- 
 less so intended, but on the contrary 
 may be garnered by the seller; for which 
 purpose he has the implied right to en- 
 ter upon the premises, even though they 
 have passed from his possession and con- 
 trol. 
 
 This question as to whether crops are 
 real or personal property has given and 
 continues to give much trouble; there is 
 one safe way to avoid all argument and 
 dissension, and only one; and that is, to 
 distinctly set forth in the contract of sale 
 or instrument of conveyance the real 
 intentions of the parties. 
 
 Houses, Bams, Sheds, and Other 
 Structures. — It is an inviolable rule of 
 law that everything which is essential 
 and necessary to the BENEFICIAL 
 USE AND ENJOYMENT of land is to 
 be regarded as part of it, and passes with 
 the conveyance, in the absence of any 
 contrary reservation by the grantor, even 
 though the thing may be by its own na- 
 ture removable. 
 
 As between vendor and vendee this 
 rule is strictly enforced, and where the 
 matter is not otherwise affected by the
 
 THE LAW OF REAL ESTATE 17 
 
 terms of the contract of sale, a grant of 
 land, without any qualifications, conveys 
 not only the soil, but everything at- 
 tached to it (except, possibly, the 
 ripened crops), including all the build- 
 ings, mines, trees, growing crops, uten- 
 sils and machinery appertaining to a 
 building for manufacturing purposes, gas 
 pipes, fittings, water pipes, ranges and 
 boilers, tanks, furnaces, heaters and 
 ovens when permanently attached, win- 
 dow and door screens, storm doors, keys, 
 hop and bean poles, bee hives, fruit 
 trays, dryers, etc. ; in general, as before 
 stated, whatever the vendor has annexed 
 to a building or placed upon the land for 
 the more convenient use thereof and im- 
 provement of the premises. 
 
 It may therefore be said that the gen- 
 eral rule would seem to be, that where 
 the annexation of personal property to 
 realty is permanent in its character, and 
 essential to the purpose for which the 
 property is used or occupied, it should 
 be regarded as realty, and passes with a 
 grant of the freehold, notwithstanding 
 the annexation may be such that the 
 chattels might be severed from the real- 
 ty without injury to either. 
 
 Grants are sometimes made conveying
 
 18 THE LAW OF REAL ESTATE 
 
 a certain building, or a house, without 
 mentioning the land. This may be con- 
 demned as bad practice; for while it is 
 true that the courts have several times 
 decided that the land upon which the 
 building stood, including as much more as 
 was necessary for its beneficial enjoy- 
 ment, also passed by the conveyance of 
 the building, still it leaves opportunity 
 for controversy. The better practice is al- 
 ways to convey the land, and then there 
 can be no question about the buildings 
 or improvements; they will pass with 
 the title as a matter of right, if there is 
 nothing in the contract to the contrary. 
 
 Entirely Different Rule Applies Be- 
 tween Landlord and Tenant. — For a long 
 time it was very generally held that 
 whatever was once affixed to realty be- 
 came a part thereof, and could not be re- 
 moved, no matter by whom placed there. 
 As seen above, this is still strictly true 
 as BETWEEN VENDOR AND 
 VENDEE, upon sale of the land, but 
 the rule has been greatly modified as be- 
 tween LANDLORD AND TENANT, 
 the statutes now providing for the re- 
 moval by the tenant of such things as he 
 has brought upon the land for the pur-
 
 THE LAW OF REAL ESTATE 19 
 
 pose of trade, manufacture, or domestic 
 use. 
 
 Thus the law has come to recognize a 
 species of property which is said to con- 
 stitute the borderland between realty 
 and personalty, partaking sometimes so 
 much of the characteristics of both as to 
 make lhe line between them hardly dis- 
 tinguishable. To this species of prop- 
 erty has been given the name ''Fixtures," 
 under which heading it is considered, im- 
 mediately following. 
 
 FIXTURES 
 
 Provisions of the Code. — The Civil 
 Code says : 
 
 "When a person affixes his property 
 to the land of another, without an agree- 
 ment permitting him to remove it, the 
 thing affixed belongs to the owner of the 
 land, unless he chooses to require the 
 former to remove it." 
 
 But the exigencies of modern business 
 have forced the relaxation of this rule to 
 a marked extent; so much so that a sub- 
 sequently added section of the Code de- 
 clares: 
 
 "A tenant may remove from the leased 
 premises, at any time DURING THE 
 CONTINUANCE OF HIS TERM, any-
 
 20 THE LAW OF REAL ESTATE 
 
 thing affixed thereto for purposes of 
 trade, manufacture, ornament, or do- 
 mestic use, unless the thing has, by the 
 manner in which it is affixed, become an 
 integral part of the premises." 
 
 Just what shall be regarded as a fix- 
 ture, so as to bring it within the rule 
 permitting its removal, is not always an 
 easy matter to determine, but as a gen- 
 eral rule it may be stated that most of 
 the things which would pass with a deed 
 of the land, if placed on the land by the 
 vendor, may be removed by the tenant 
 as his personal property when placed on, 
 or attached to, the realty by him; the 
 principal exception being in cases where 
 they have been so attached to the prop- 
 erty as to have become practically a part 
 of it. 
 
 The language of the statute does not 
 include agricultural fixtures, but the rule 
 of the American courts is to include 
 them also in the classification of trade 
 fixtures; thus widening the list to include 
 pretty nearly everything in the way of 
 buildings or structures, machinery, tools 
 and utensils, store fixtures, etc., which 
 the tenant may remove when lawfully 
 entitled to. 
 
 Intention of the Parties Principal
 
 THE LAW OF REAL ESTATE 21 
 
 Thing in Deciding Whether Fixtures 
 Are Removable or Not. — The intention 
 of the parties in affixing things to land 
 or buildings is the chief element to be 
 considered in determining their char- 
 acter; the intention being- inferred from' 
 the nature of the article affixed, the rela- 
 tion and interest of the party making 
 the annexation, the structure and mode 
 of annexation, and the purpose and use 
 for which it has been made. 
 
 If the intention is that the chattels 
 shall not, by annexation, become a part 
 of the realty, as a general rule they will 
 not. The exception is where the thing 
 annexed, or the mode of annexation, is 
 such that it could not be removed with- 
 out practically destroying it, or where it, 
 or part of it, is essential to the support 
 of that to which it is attached. 
 
 It a tenant build an addition to the 
 house of his landlord, he probably could 
 not remove it ; but if the addition be a 
 complete structure in itself, simply set 
 up close to the house, without being im- 
 bedded in the ground, or otherwise per- 
 manently attached, he would have the 
 right to remove it. 
 
 Mode and Degree of Attachment. — 
 The manner in which a thing is affixed
 
 22 THE LAW OF REAL ESTATE 
 
 to land is also an important factor in 
 determining whether it is real or per- 
 sonal property. If so attached that it be- 
 comes a permanent and integral part of 
 the realty by being imbedded in it, or 
 fastened to it so that it cannot be re- 
 moved without MATERIAL INJURY 
 to the realty, it is then usually to be 
 deemed part of the realty. 
 
 The mode of attachment is of partic- 
 ular moment in controversies between 
 landlord and tenant, but of much less 
 importance as between vendor and 
 vendee ; for at best the only real value 
 to be attached to the manner of physical 
 attachment is in determining the purpose 
 for which the attachment was made, and 
 the interest of the party in making it. 
 
 As before stated, the rule for deter- 
 mining what is a fixture is construed 
 stronglv AGAINST THE SELLER and 
 IN FAVOR OF THE BUYER. When 
 an owner puts improvements on his land 
 it is presumed he intends them to be per- 
 manent, for the benefit of the land; and 
 unless he mentions specifically in the 
 contract of sale, or in the instrument of 
 conveyance, his intention to reserve any 
 or all of such improvements, as a general 
 thing they will pass with the land, and
 
 THE LAW OF REAL ESTATE 23 
 
 he is likely to have a very considerable 
 trouble in proving otherwise. 
 
 But as between landlord and tenant an 
 entirely different rule prevails. Here the 
 benefit of the doubt is all IN FAVOR 
 OF THE TENANT as AGAINST THE 
 LANDLORD. It is not to be presumed 
 that the -.lenant intends the improve- 
 ments which he makes to be for the ben- 
 efit of his landlord ; on the contrary, it is 
 to be presumed he makes them strictly 
 for his own benefit. 
 
 Still, there is no unvarying test; and 
 neither the mode of annexation, nor the 
 purpose of the improvements, can ever 
 be said to be entirely conclusive, the ex- 
 press or implied understanding of the 
 parties being more usually the pivot on 
 which the decision hinges. But as a 
 general principle, in the absence of any 
 contract or agreement to the contrary, it 
 may be said that what a tenant affixes to 
 leased premises may be removed by him 
 at any time DURING HIS TERM, if he 
 can do so without material injury to the 
 realty. 
 
 Only One Safe Way to Be Sure.— 
 Where there is such an open field for 
 controversy as there is on this subject 
 of what constitutes fixtures, or things af-
 
 24 THE LAW OF REAL ESTATE 
 
 fixed to land; when they are to be 
 classed as real and when as personal 
 property; when they are removable and 
 when irremovable; and where there 
 might be much difficulty in proving the 
 real intentions of the parties, the only 
 sane thing to do is to have a thorough 
 understanding beforehand. 
 
 In case of a sale of the land, enumer- 
 ate everything which goes with it, and 
 likewise everything which is to be re- 
 served. 
 
 In case of a lease, put in the instru- 
 ment how all fixtures and improvements 
 belonging to or erected by the tenant are 
 to be attached to the land, and when and 
 how removed. 
 
 Always remembering that parties to 
 an agreement may fix upon chattels at- 
 tached to realty whatever character may 
 be agreed upon, either real or personal, 
 and whatever may be their agreement 
 the courts will enforce, it having been 
 decided many times that fixtures or 
 structures of any sort when placed on 
 leased premises, under an agreement for 
 removal, in such manner as not to be- 
 come permanently attached thereto, do 
 not pass to a subsequent purchaser of 
 the land.
 
 THE LAW OF REAL ESTATE 25 
 
 THINGS APPURTENANT TO LAND 
 
 Civil Code Definition. — A thing is 
 deemed to be incidental or appurtenant 
 to land when it is by right used with the 
 land for its benefit, as in the case of a 
 way, or watercourse, or of a passage for 
 light, air, or heat from or across the land 
 of another. 
 
 Other' 'examples of ap:)urtenances are 
 building restrictions, to l)uild or not to 
 build fences, to set buildings back cer- 
 tain distance from front line, restricting 
 use of premises, water rights, rights of 
 way, franchises, right to cut timber, to 
 fish or hunt, etc. 
 
 Such incidentals may be either tem- 
 porary or permanent in their nature. 
 When permanently attached to land, as 
 by right, they are called easements, or 
 covenants which run with the land. Thus 
 they become burdens affecting lands, by 
 which the proprietor is restrained from 
 the full use of his property, or is obliged 
 to suffer others to do acts upon it. 
 
 How Easements Are Acquired. — An 
 easement, when created by a writing, 
 can be acquired only by means of a for- 
 mal deed or grant. There must be ex- 
 press words creating and establishing
 
 26 THE LAW OF REAL, ESTATE 
 
 the right sought to be conveyed. At- 
 tempts are sometimes made to create an 
 easement by means of a consent in writ- 
 ing, other than a formal conveyance, but 
 such an instrument is of no more avail 
 than a verbal agreement would be. 
 
 Easements are also sometimes ac- 
 quired by custom. Thus, the inhabitants 
 of a certain locality may acquire a right 
 of way over a parcel of land by custom, 
 and when such right is undisputed for a 
 sufficient length of time it becomes a 
 prescriptive right, similar to the right 
 popularly known as "squatter sovereign- 
 ty," which the proprietor of the land 
 would probably find considerable trouble 
 in annulling, if he so desired, if, indeed, 
 he could succeed in doing so at all. 
 
 Easements, therefore, being an interest 
 in land, come within the code definition 
 of what constitutes real property, and 
 when the title is transferred pass with it 
 without special mention.
 
 CHAPTER II. 
 
 OWNERSHIP AND CONTROL 
 OF REAL PROPERTY 
 
 The laws governing the ownership 
 and control of property in California are 
 not generally well understood. There 
 are probably two main reasons why this 
 is so. The first is, that there are so 
 many newcomers to the state; the sec- 
 ond is, that it is the custom to join both 
 husband and wife in real estate trans- 
 fers, whether so required by law or not. 
 This leads the public to the conclusion 
 that each has some lawful interest in the 
 property of the other. Such, however, 
 is not the case, which this article will at- 
 tempt to make clear, and show as well 
 their true relationship in this respect. 
 
 PROPERTY RIGHTS OF HUSBAND 
 AND WIFE 
 
 Language of the Law. — The five sec- 
 tions which immediately follow are in 
 the exact language of the civil code :
 
 28 THE LAW OF REAL ESTATE 
 
 What is Separate Property of the Hus- 
 band. — All property owned by the hus- 
 band before marriage, and that acquired 
 afterwards by gift, bequest, devise or 
 descent, with the rents, issues, and pro- 
 fits thereof, IS HIS SEPARATE PROP- 
 ERTY. 
 
 What is Separate Property of the 
 Wife. — All property of the wife, owned 
 by her before marriage, and that ac- 
 quired afterwards by gift, bequest, de- 
 vise, or descent, with the rents, issues, 
 and profits thereof, IS HER SEPAR- 
 ATE PROPERTY. 
 
 The wife may, WITHOUT THE 
 CONSENT OF HER HUSBAND, con- 
 vey her separate property. 
 
 Neither Has Interest in Property of 
 Other. — Neither husband nor wife has 
 ANY INTEREST in the property of the 
 other. 
 
 Husband and Wife May Contract with 
 Each Other, or with Others, Same as if 
 Unmarried. — Either husband or wife may 
 enter into any engagement or transac- 
 tion with the other, or with any other 
 person, respecting property, which either 
 might, if unmarried. 
 
 No Courtesy or Dower. — No estate is 
 allowed the husband as tenant by cour-
 
 THE LAW OP REAL ESTATE 29 
 
 tesy upon the death of his wife, nor is 
 any estate in dower allotted to the wife 
 upon the death of her husband. 
 
 Tells the Whole Story.— The five sec- 
 tions of the code quoted above tell prac- 
 tically the whole story of property rights 
 as between husband and wife, with the 
 exception of community rights, which 
 are shown under the next heading be- 
 low. 
 
 Further interpreted, they mean that 
 all the property possessed by either hus- 
 band or wife before marriage, and all 
 that acquired afterwards by either as the 
 profits thereof, or with their separate 
 funds, or by gift or inheritance, remains 
 and continues to be his or her sole pos- 
 session, the same as if they were un- 
 married. And neither while living, nor 
 after death, has either any claim, right, 
 or legal interest whatsoever in what be- 
 longs to the other; with the single pro- 
 viso that, after death, in the absence of a 
 will otherwise disposing of it, either is 
 entitled to a share in the property of the 
 other by right of succession. 
 
 Likewise, the husband or wife has each 
 ABSOLUTE CONTROL over his or 
 her separate property. Either may, with- 
 out the consent of the other, enter into
 
 30 THE LAW OF REAL ESTATE 
 
 a contract of sale, rent, mortgage, or con- 
 vey any or all of the same, or dispose of 
 it by will or gift, with the like effect as 
 if they were single persons. 
 
 They may buy from, or sell to, or con- 
 vey by gift to, each other, the same as 
 with other persons. 
 
 But neither can make any valid con- 
 tract respecting the property of the 
 other, or convey the same, without first 
 being duly authorized so to do in writ- 
 ing, or by power of attorney. 
 
 COMMUNITY PROPERTY 
 
 Definition. — Except the property de- 
 scribed above as the separate property 
 of husband or wife, all other property 
 acquired after marriage by either hus- 
 band or wife, or both, is community 
 property. 
 
 Management and Control of Com- 
 munity Property. — The husband has the 
 management and control of the com- 
 munity property, free from all restraint 
 of the wife, or necessity of obtaining 
 her consent to his acts. He is vested 
 with discretionary power in all matters 
 appertaining thereto, and can sell, con- 
 vey, or encumber the same without the 
 consent of the wife, regardless of her de-
 
 THE LAW OF REAL ESTATE 31 
 
 sires, or of such interest as she may 
 have. 
 
 But while the husband possesses the 
 right of absolute freedom of control and 
 alienation of the community property, 
 he is not allowed to commit FRAUD on 
 the wife, and all his acts must be in 
 good faith, and not for the purpose of 
 divesting or injuring her; therefore he 
 cannot will away other than his interest, 
 or make a gift of it, or convey it without 
 a valuable consideration, while she is liv- 
 ing, without her consent, in writing, 
 first obtained. 
 
 The wife has no right whatsoever to 
 sell, or to contract to sell, or otherwise 
 dispose of any species of community 
 property, and a purchaser from her takes 
 no title as against the husband. 
 
 CONVEYANCE OF SEPARATE AND 
 COMMUNITY PROPERTY 
 Why Purchasers Require Signatures 
 of Both Husband and Wife. — In view of 
 the fact that the husband and wife each 
 have absolute control over their separate 
 property, with power to convey the 
 same, and the husband has sole control 
 over the community property, with like 
 power to convey it, the question natur-
 
 32 THE LAW OF REAL ESTATE 
 
 ally arises: Why is it necessary, then, 
 to have the signatures of BOTH hus- 
 band and wife to a grant or deed? The 
 answer is: It is NOT necessary, in a 
 legal sense. Each may sell, convey, 
 lease, or encumber without the consent 
 of the other, and the signature of the 
 one in whose name the title stands is 
 sufficient in law. 
 
 But, the reader replies, the purchaser 
 always demands the signatures of both 
 husband and wife to the instrument. 
 That is practically true, and the reason 
 is that it is a matter of prudence and not 
 of law. The presumption is that prop- 
 erty standing in the name of the wife is 
 her separate property, but even this pre- 
 sumption may be attacked by creditors 
 or others on the ground that the title 
 was vested in her for fraudulent reasons; 
 but where the title stands in the name 
 of the husband it is not possible to tell 
 from that mere fact just what his inter- 
 est is, or whether his conveyance of it is 
 in good faith. 
 
 Nobody cares to purchase trouble or 
 possible law suits. Therefore, and for 
 the reasons given, the prudent purchaser 
 demands the signatures of both husband 
 and wife to a conveyance by either of
 
 THE LAW OF REAL ESTATE 33 
 
 them ; for when both signatures are at- 
 tached thereto there is no opportunity 
 for dispute or controversy as to the own- 
 ership, and the right and justice and ab- 
 sence of fraud in the encumbrance or 
 disposal, or the consent of both parties 
 to the same. 
 
 If. however, the purchaser is satisfied 
 that the property is the rightful pos- 
 session of the person seeking to dispose 
 of it, he is entirely justified in accepting 
 the sole signature of such person to the 
 conveyance. Then, if he chooses, he 
 may bring an action in the courts to 
 quiet his title, and, if judgment be ren- 
 dered in his favor, his right of possession 
 will be clear and complete. 
 
 HOLDING PROPERTY AS JOINT 
 TENANTS 
 
 Permissible by Law, but Not so Com- 
 monly Employed. — There is another 
 method by which property may be held 
 by husband and wife, or by two or more 
 other parties. This is known as a joint 
 tenancy, and the parties are known as 
 joint tenants. 
 
 In a joint tenancy, the conveyance is 
 made to and in the names of both the 
 husband and wife, or of all the parties
 
 34 THE LAW OF REAL ESTATE 
 
 who share therein, and each one holds 
 an equal share. Each tenant can con- 
 vey his interest separately, by his own 
 signature, but the whole can be conveyed 
 only with the consent and signatures of 
 all the tenants. For form of deed, and 
 further explanation of joint tenancies, 
 the reader is referred to the subject of 
 "Deeds." 
 
 Power of Attorney by Married Wom- 
 an. — A married woman may make, exe- 
 cute, and revoke powers of attorney for 
 the sale, conveyance, or encumbrance of 
 her real property, with the same effect 
 as if she were unmarried. 
 
 The husband may, by power of at- 
 torney, be constituted attorney in fact 
 for the wife, to transact business for her 
 and in her name.
 
 CHAPTER III. 
 
 CONTRACTS OF SALE OF 
 REAL PROPERTY 
 
 Having shown in the two previous 
 chapters what constitutes real property 
 according to the laws of California, and 
 also how it is owned and controlled, we 
 VvhU show in this article the legal formal- 
 ities necessary to be observed in the 
 making of valid contracts or agreements 
 of sale, and in the succeeding article the 
 manner and methods of alienation, or 
 voluntary transfer from one person to 
 another, for a consideration, in conform- 
 ity with the laws of the state for that 
 purpose provided. 
 
 AGREEMENTS OF SALE AND PUR- 
 CHASE 
 Definitions. — Where title to property 
 is acquired by purchase the transaction 
 is naturally the result of previous nego- 
 tiation or agreement on the part of the 
 purchaser to take the property upon the
 
 36 THE LAW OF REAL ESTATE 
 
 agreed terms, and of the owner to sell 
 and convey the same for the stated con- 
 sideration. 
 
 The civil code defines a sale to be a 
 contract by which, for a pecuniary con- 
 sideration called a price, one transfers 
 property, or an interest in property, to 
 another. 
 
 An agreement to sell is a contract by 
 which one engages, for a price, to trans- 
 fer the title to property to another. 
 
 The distinction between a sale and an 
 agreement for sale is this : In the for- 
 mer, the thing which is the subject of 
 contract becomes the property of the 
 buyer as soon as the contract is con- 
 cluded; in the latter, it remains the 
 property of the seller until the buyer has 
 completed the terms of the contract. In 
 the former case, one sells outright to 
 another; in the latter, he only promises 
 to sell when certain conditions are ful- 
 filled. 
 
 An agreement to buy is a contract by 
 which one engages to accept certain de- 
 scribed property from another, and pay 
 a price therefor. 
 
 An agreement to sell and buy is a 
 contract by which one person engages to 
 transfer the title to certain property to
 
 THE LAW OF REAL ESTATE 37 
 
 another, who engages to accept the same 
 and pay a price therefor. 
 
 Every Contract for the Sale or Pur- 
 chase of Land Must Be in Writing. — 
 
 Contracts for the purchase and sale of 
 land are in their nature executory; that 
 is, they do not vest any present title, or 
 convey any interest in the land, but are 
 simply agreements to convey at some 
 future time, upon the fulfillment of the 
 conditions contained in the contract. 
 
 Conveyance seldom immediately fol- 
 lows the making of the agreement. If it 
 did, contracts of sale and purchase would 
 seldom be necessary. But in the passing 
 of title to real property much care is re- 
 quired to ascertain that the claim of 
 OAvnership by the grantor, or seller, is 
 clear; that is, that no others have any 
 claim upon it. This makes it necessary 
 to search the public records, which is 
 a somewhat tedious process requiring 
 considerable time. For this reason it is 
 customary, when a purchaser has been 
 found for a piece of property, for the 
 seller and the buyer to sign an agree- 
 ment, binding the one to convey, and 
 the other to purchase, upon a satisfactory 
 certificate of title being furnished. Such 
 contract binds the parties firmly to the
 
 38 THE LAW OF REAL ESTATE 
 
 agreement in the interval, while the 
 search is being made, and also compels 
 them to consummate the deal, if the ex- 
 amination proves the title to be as rep- 
 resented. 
 
 Such contracts are, of course, not 
 compulsory or necessary, in a legal 
 sense, to the transfer of property, if the 
 parties are satisfied to rely on an oral 
 agreement. But AN ORAL AGREE- 
 MENT CANNOT BE ENFORCED. 
 There is a law of the state known as the 
 "Statute of Frauds," which says that no 
 agreement for the sale of real property, 
 or of any interest therein (including the 
 buildings, trees, timber, or any of the 
 things coming under the definition of 
 real property, as set forth in the first 
 chapter of this book), shall be valid un- 
 less the same, or some note or memo- 
 randum thereof, IS IN WRITING, and 
 subscribed by the party to be charged, 
 or by his agent. 
 
 There is no e\ading or getting around 
 this law. It is imperative. The agree- 
 ment of sale or purchase must positively 
 and unequivocally be in writing in order 
 to have any standing in court. The great 
 purpose of the statute of frauds is to af- 
 ford protection against frauds and per-
 
 THE LAW OF REAL ESTATE 39 
 
 juries, and this it effects by providing 
 that mere oral proof of such contracts 
 shall not be sufficient to establish them 
 in a court of justice. An oral contract 
 is all right so long as the parties carry 
 out its terms, and no one suffers or is 
 injured thereby; but if there were no 
 written memorandum of the bargain, it 
 would be possible for either party to 
 decline to fulfill his part of the agree- 
 ment, and the other party would be pow- 
 erless to enforce it. It is for this reason 
 that the law prescribes a weapon for the 
 enforcement of legitimate contracts, as 
 well as for the prevention of fraud, due 
 to frailties of the memory from lapse of 
 time, perjury, etc., by providing that no 
 relief can be obtained in a court of jus- 
 tice, by an action at law, if the other 
 party sets up the defense that the agree- 
 ment upon which the action was brought 
 was not in wTiting. 
 
 Exception to Above. — Notwithstanding 
 the fact that the law requires all con- 
 tracts for the sale of real property to be 
 in writing, there are cases in which an 
 oral bargain can be enforced. This 
 might seem to be an evasion or over- 
 throw of the statute itself; but In reality 
 it is not; it being, rather, a further pre-
 
 40 THE LAW OF REAL ESTATE 
 
 caution for the prevention of fraud. 
 It has long been the settled doctrine, 
 and is now incorporated in the statute 
 iiself, that an oral contract for the con- 
 veyance of lands will be enforced by the 
 courts in cases where the contract has 
 been PARTLY PERFORMED, to such 
 an extent that a refusal on the part of 
 the seller to fully carry out its provi- 
 sions would work a hardship or fraud 
 upon the buyer. As for instance: Jones 
 agrees verbally to sell his ranch to 
 Brown, who, while waiting for the ab- 
 stract, takes possession with Jones' per- 
 mission, and proceeds to make improve- 
 ments, or cultivate the soil. Before the 
 deed is ready for delivery Jones gets a 
 bigger offer for his land, which he would 
 like to accept. But he would not be per- 
 mitted to withdraw or cancel his agree- 
 ment of sale to Brown, on the ground 
 that the contract of sale was not in writ- 
 ing, for the reason that he has permitted 
 Brown to proceed in good faith to oc- 
 cupy the premises in execution of the 
 agreement ; and the very fact that he 
 transferred the possession to Brown 
 would be considered such evidence of 
 the agreement of purchase, and the in- 
 tended transfer, that the courts would
 
 THE LAW OF REAL ESTATE 41 
 
 recognize the transaction, and most 
 probably compel its full performance. To 
 do otherwise would be a manifest injus- 
 tice and fraud upon the purchaser, which 
 the statute is designed primarily to pre- 
 vent, and would also put him in the 
 anomalous position of a trespasser. 
 
 If, however. Brown took possession 
 v^'ithout Jones' consent, the case would 
 be entirely different ; he would have no 
 rights under the oral agreement which 
 the courts would be bound to enforce. 
 
 But part payment of the purchase 
 money is not in itself regarded as suffi- 
 cient evidence or reason for enforcing 
 the performance of a verbal contract. 
 Courts probably once did act on such 
 evidence, and compel the seller to per- 
 form his agreement. Experience proved 
 this to be a dangerous practice, how- 
 ever, and it has been abandoned. Now% 
 in case of a hitch in the negotiations, 
 where the contract is verbal, instead of 
 compelling the seller to fulfill his con- 
 tract by giving a deed, it is the custom 
 to require him to refund the monev 
 given as part payment, or as a deposit. 
 
 Like most other difficulties arising 
 from carelessness or negligence, troubles 
 of this kind are easily avoided by com-
 
 42 THE LAW OF REAL ESTATE 
 
 plying with the terms of the law : Put 
 the contract, with all its details, in writ- 
 ing. 
 
 Authority of Agent of Owner Must 
 Also Be in Writing. — Whenever the 
 owner of real property delegates author- 
 ity to an agent to make a contract for 
 the sale of such property, THE 
 AGENT'S AUTHORITY MUST ALSO 
 BE IX WRITING, signed by the own- 
 er. This is likewise one of the most im- 
 portant provisions of the Statute of 
 Frauds, and unless it be strictly ob- 
 served, any contract made by the agent 
 would have no binding effect upon either 
 the owner or the purchaser. This fea- 
 ture of the law is a very important one, 
 and its neglect is the cause of many 
 wrangles and much litigation. It is fur- 
 ther explained in detail in the chapter on 
 ''Real Estate Agents." 
 
 Contract of Sale by Corporation. — 
 The powers of a corporation, and the 
 control of its property, can be exercised 
 only by its board of directors. Its offi- 
 cers, as such, have no power to dispose 
 of its property, or of any interest there- 
 in. Therefore, everv contract for the 
 sale of real estate by a corporation must 
 first be authorized by its board of direct-
 
 THE LAW OF REAL ESTATE 43 
 
 ors, at a meeting thereof duly and legal- 
 ly convened. Some forms of such con- 
 tracts state in the agreement of sale that 
 it is made in pursuance of a resolution of 
 the board of directors, duly held at such 
 and such a date; and sometimes, also, 
 the words of the resolution itself are in- 
 serted. 
 
 It is not necessary, however, that 
 every individual contract by a corpora- 
 tion handling real estate shall be separ- 
 ately authorized by resolution. In such 
 cases, it is customary for the board of 
 directors to pass a blanket resolution, 
 authorizing the president and secretary, 
 or other officers, to make contracts of 
 sale and conveyances, for and in the 
 name of the corporation. This answers 
 ilie same purpose, and contracts made in 
 {Hirsuance thereof have legal force and 
 elYect. 
 
 Contract of Sale by Minor. — A minor 
 cannot, under the age of eighteen, make 
 any valid contract relating to any inter- 
 est in real property. 
 
 The contract of a minor over the age 
 of eighteen is not void, but is voidable ; 
 that is, he may disaffirm or repudiate it 
 at any time before majority, or within 
 a reasonable time thereafter.
 
 44 THE LAW OF REAL ESTATE 
 
 A minor cannot delegate authority to 
 another person to do what he is himself 
 forbidden to do. 
 
 Contract of Sale of Wife's Property by 
 Husband. — The husband seems pretty 
 often to take it for granted that he has 
 the right to make a contract of sale of 
 property which stands in his wife's 
 name, without further authority. He has 
 no such right, and if she refuses to carry 
 out the contract trouble is almost sure 
 to result over commissions, etc. A con- 
 tract of sale should always be signed by 
 the person in whose name the title 
 stands, or by an authorized agent. 
 
 Power of Attorney to Execute Con- 
 tract of Sale Not Necessary. — Authority 
 to execute a contract of sale of real prop- 
 erty may be delegated to an agent by 
 any form of simple writing authorizing 
 him to make such contract, and a power 
 of attorney is not necessary for the pur- 
 pose. But, as previously stated, such 
 contract does not convey the property, 
 or any interest therein, or authorize the 
 agent to convey it. The actual transfer 
 can be made only by a grant deed, and 
 authority from the owner to another per- 
 son to execute such deed in his behalf 
 can be given only by means of a formal
 
 THE LAW OF REAL ESTATE 45 
 
 power of attorney; for farther details of 
 Avhich, and necessary forms, see chapter 
 or: "Transfer of Real Property." 
 
 Construction of the Contract of Sale. — 
 The mere form or language of the con- 
 tract of sale is immaterial. It may be in 
 the shape of letters, or telegrams, or of 
 a formally drawn instrument ; or it may 
 be in the shape of just simply notes or 
 memorandum of the deal. What is very 
 important, however, is that there must 
 be a direct and positive offer to sell, and 
 not a mere negotiation ; also, that the 
 terms of the bargain can be definitely 
 ascertained from the writing, in what- 
 ever form it is, and that the property in- 
 volved in the deal be described accur- 
 ately enough to identify it without mis- 
 take. Above all, the one indispensal)le 
 requisite is that the oft'er or agreement 
 must be IN WRITING, and signed by 
 the vendor, or by his authorized agent, 
 whether it be drawn up with legal form- 
 ality, or in the form of letters, or simply 
 notes or memorandum of the transac- 
 tion. 
 
 If the property is located in a city or 
 town, it is a sufficient description of it 
 to refer to the street and number, or to
 
 46 THE LAW OF REAL ESTATE 
 
 the number of the lot and the name of 
 the tract. 
 
 Country property may be referred to 
 by its popular name, as the ''Higgins 
 ranch," or other appellation, if it has 
 one, instead of giving the description by 
 measurements. 
 
 Use of the Forms. — In making use (^f 
 tjie forms which follow, care should be 
 taken, where there is more than one 
 owner, or the owner is of the female 
 sex, or the contract is to be signed by 
 both husband and wife, to change the 
 nouns, pronouns, and verbs to corre- 
 spond, where necessary. The parenthe- 
 ses are used to indicate the portions 
 of the forms which should be changed to 
 meet the requirements of the transac- 
 tion in hand, such as description of the 
 property, terms of the sale, date lines, 
 county and state, names of seller and 
 buyer, etc. Otherwise the forms are in 
 everywise complete, and meet all the re- 
 quirements of the law. 
 
 Form of Contract of Sale and Pur- 
 chase. — The most popular form of con- 
 tract for the sale of real property now 
 in use is in the shape of an agreement 
 upon the part of the owner to sell, and 
 of the prospective customer to buy, in-
 
 THE LAW OF REAL ESTATE 47 
 
 corporated into one instrument, several 
 very good examples of which are given 
 below. If a separate offer to sell, or a 
 separate offer to buy, is wanted, it is a 
 simple matter to make it up by follow- 
 ing the general language of the forms as 
 given. 
 
 AGREEMENT FOR THE SALE OF REAL 
 ESTATE, FOR CASH 
 
 THIS AGREETVIENT, made this (first day of 
 May, in tlie year nineteen hundred and fifty), 
 bet-»veen (Harold Howard, of the county of 
 Orange, state of California), tlie party of the 
 first i>art, and (Henry Howson, of the county 
 of Riverside, state of California), the party of 
 the second part, T\itne»seth: That the said party 
 of the first part, for and in consideration of 
 the covenants and aj^reenients hereinafter con- 
 tained and made by and oii the part of the 
 party of the second part, agrees to sell and 
 convey unto the !«aid party of the second part, 
 and the said party of the second part agrees 
 to buy, all that certain lot, piece, or parcel of 
 land, situate, lying and being in the county of 
 (Orange, state of California), and bounded and 
 particularly described as follo'tvs, to-T»'!t: 
 
 (Here describe the property, same as in the 
 deed), for the sum of (t-wenty thousand dol- 
 lars) in gold coin of the United States; and the 
 said party of the second part, in consideration 
 of the premises, agrees to buy and to pay to 
 the said party of the first part the said sum of 
 (twenty thousand dollars), as follows, to-wit: 
 (One thousand dollars cash), receipt of which 
 is iiereby acknowledged, and (nineteen thousand 
 dollars, or so much cash and other property, as 
 the case may be), on delivery by the party of 
 the first part of a grant deed accompanied by 
 an unlimited certificate of title showing title as 
 hereinafter specified. 
 
 "^Vlthin (twenty) days from date the party of 
 the first part agrees to furnish an unlimited 
 certificate of title issued by (name of title or 
 abstract company), showing said premises to
 
 48 THE LAW OF REAL ESTATE 
 
 be free and elear of all encnmbrancea, except 
 (enumerate encumbrances, if any). If title is 
 as specified above, tbe balance of the purchase 
 price will be paid by the party of the second 
 part as agreed. If the balance of the purchase 
 price be not paid as agrreed, the amount de- 
 posited and receipted for as above is to be 
 relinquished and set over to the party of the 
 first part as a consideration for this option. 
 If title is not as specified above, said deposit 
 is to be returned to the party of the second 
 part. 
 
 (Or the last sentence in the clause above is 
 sometimes made to read like this: .'*If title is 
 not perfect, as specified above, but can be made 
 so, the party of the first part is to have (so 
 many) days in ^vhich to perfect the same, T»-hieh 
 he hereby agrrees to do; if title cannot be so 
 perfected, said deposit is to be returned to the 
 party of the second part"). 
 
 All taxes and assessments novr levied upon 
 the said premises are to be paid by (as agreed). 
 
 Taxes and assessments 
 
 Insurance 
 
 licases 
 
 Rents 
 
 The stipulations and agreements aforesaid 
 are to apply to and bind the heirs, executori*, 
 administrators, and assigns of the respective 
 parties hereto. 
 
 In >Tltness ^vhereof, the parties hereto have 
 affixed their hands the day and year first above 
 ivritten. 
 
 (Signature of seller ) 
 
 (Signature of buyer > 
 
 Signed and delivered In the presence of: 
 
 (Names of ^ritnesses). 
 
 In addition to the items contained in 
 the above form, any other conditions 
 may be added which the circumstances 
 would seem to require. Although every 
 prudent person would naturally inquire 
 into all the details surrounding, and in 
 any way bearing upon, his proposed pur-
 
 THE LAW OF REAL ESTATE 49 
 
 chase, and therefrom understand that he 
 takes the premises subject thereto, yet 
 lie might feel more secure if all the con- 
 ditions be reduced to writing and incor- 
 porated into the contract. If any reserv- 
 ations to the owner are to be made, they 
 may be enumerated; also any conditions 
 as to rights of way, for the seller, or for 
 the public, or for railroad, telegraph or 
 telephone purposes ; also building re- 
 strictions, use of property, color and 
 race of future grantees, sale of liquors, 
 etc. Or, if such onditions, commonly 
 called covenants, already exist in the 
 deed, or are on record, reference may 
 be made to such deed or record, stating 
 that the sale is made subject thereto, 
 and that will be sufficient, without enum- 
 erating them again in the contract. 
 
 Also, as is done in many cases, the 
 contract may provide that the deposit 
 shall be made with a third party, or with 
 some bank or trust company, instead of 
 with the seller, accompanied w4th in- 
 structions to deliver the same to the 
 seller when the conditions of the agree- 
 ment are complied with. The deed is 
 sometimes deposited at the same time, to 
 be delivered to the buyer when the title 
 is found sufficient, and the balance of the
 
 50 THE LAW OF REAL ESTATE 
 
 money is paid. This is called an es- 
 crow. 
 
 Form of Agreement of Sale Where All 
 Cash is Not to Be Paid. — Where only 
 part of the purchase price is to be paid 
 in cash, the following form of contract 
 is binding upon all the parties until the 
 terms of the agreement are fully com- 
 pleted. As in the preceding form, if 
 there are any other conditions or agree- 
 ments which it is desired to reduce to 
 writing they may be incorporated there- 
 in by stating that the sale is made sub- 
 ject thereto. Samples of such stipula- 
 tions will be found in the installment 
 contract further on. This form of con- 
 tract constitutes a conditional sale, the 
 condition being that if the payments are 
 not made at the times and in the manner 
 stipulated, the buyer relinquishes all his 
 rights under the contract, and it be- 
 comes null and void at the option of the 
 seller. He also loses whatever sums of 
 money he may have already paid in at 
 the time he becomes in default. It is, 
 in effect, the same as the regular install- 
 ment contract, explained in detail under 
 that heading. 
 
 AGREEMENT FOR THE SALE OF REAL 
 ESTATE 
 THIS AGREEMENT, made this (first day of
 
 THE LAW OF REAL ESTATE 51 
 
 June, in the year nineteen hundred and fifty), 
 bet>veen (Judson Jamison, of the county of 
 Kern, state of California), the party of the first 
 part, and (George Goodhue, of the county of 
 Ventura, state of California), the party of the 
 second part, witnesseth: .That the said party 
 of the first part, for and in consideration of 
 the covenants and agreements hereinafter con- 
 tained and made by and on tlie part of the said 
 party of the second part, agrees to sell and 
 convey unto the said party of the second part, 
 and the said party of the second part agrees 
 to buy, all that certain lot, piece, or parcel of 
 land, situate, lying and being In the county 
 of (Ventura, state of California)) and bounded 
 and particularly described as follows, to- wit: 
 
 (Here describe the property, same as In the 
 deed. Also It is well to refer to the number 
 of the book and the page In which the record 
 can be found In the county recorder's office), 
 for the sum of (ten thousand dollars) in gold 
 coin of the United States; and the said party 
 of the second part, in consideration of the 
 premises, agrees to buy and to pay to the said 
 party of the first part the said sum of (ten 
 thousand dollars), as follows, to-wlt: .(One 
 thousand dollars cash), receipt of which Is here- 
 by acknowledged, and (here state how and 
 when and In what amounts the balance Is to 
 be paid). 
 
 It Is agreed that all deferred payments shall 
 bear Interest at the rate of (seven) per cent 
 per annum, payable (annually) from date. 
 
 All taxes and assessments now levied upon 
 the said premi.ses are to be paid by (as agreed). 
 
 All taxes and assessments levied upon the 
 said premises subsequent to the date hereof 
 are to be paid by (as agreed). 
 
 Taxes and assessments 
 
 Insurance 
 
 Leases 
 
 Rents 
 
 It is understood and agreed that time Is of 
 the essence of this contract, and should the 
 said party of the second part fail to comply 
 with any of the terms hereof, then the said 
 party of the first part shall be released from 
 all obligations either In law or equity to con- 
 vey said property, and the said party of the 
 second part shall waive and relinquish all right
 
 52 THE LAW OF REAL ESTATE 
 
 thereto, and to all moneys theretofore paid 
 under thiM contract; but the said party of the 
 first part, on receiving the full payments at 
 the times and in the manner above mentioned, 
 agrees to execute and deliver to the said party 
 of the second part a good and sufiicient grant 
 deed to the premises herein described, accom- 
 panied with an unlimited certificate of title 
 showing said premises to be free and clear of 
 all encumbrances. 
 
 The stipulations and agrreements aforesaid are 
 to apply to and bind the heirs, executors, ad- 
 ministrators, and assigns of the respective par- 
 ties hereto. 
 
 In witness whereof, the parties hereto have 
 affixed their hands the day and year first above 
 written. 
 
 (Signature of seller ) 
 
 ( Signature of buyer ) 
 
 Signed and delivered in the presence of: 
 
 (Names of witnesses). 
 
 To the above, where the balance of 
 the purchase price is not to be paid for 
 some considerable time, may also be 
 added agreements about keeping up in- 
 surance, destruction of property by fire, 
 repairs, occupancy of the premises, or 
 such other covenants and stipulations as 
 the parties desire or the circumstances 
 would seem to require. 
 
 Form of Agreement of Sale for Part 
 Cash and Mortgage. — Where only part 
 of the purchase price is to be paid in 
 cash, and a mortgage is to be given for 
 the balance, the following form of con- 
 tract will meet the requirements: 
 
 AGREEMENT FOR THE SALE OF REAL 
 ESTATE, WITH MORTGAGE 
 THIS AGREEMENT, made this (first day of
 
 THE LAW OF REAL ESTATE 53 
 
 September, In the year nineteen hundred and 
 fifty), between (Lemuel Lawrence, of the coun- 
 ty of San Diego, state of California), the party 
 of liie fir.st part, and (Martin Mason, of the 
 county of Los Angeles, state of California), the 
 party of the second part, ^vitnesseth: .That the 
 said party of the first part, for and in consid- 
 eration of the covenants and agrreenients here- 
 inafter contained and made by and on the part 
 of the said party of the second part, agrees 
 to »ell and convey unto the said party of the 
 second part, and the said party of the second 
 part agrees to buy, all that certain lot, piece, 
 or jiarcel of land, situate, lying and being in 
 the county of (San Diego, state of California), 
 and bounded and particularly described as fol- 
 lows: 
 
 (liere describe the property, same as In the 
 deed), for the sum of (fifty thousand dollarri), 
 in p.old coin of the United States; and the said 
 party of the second part; In consideration of 
 ibe premises, agrees to buy and to pay to the 
 «aid party of the first part the said sum of 
 (fifty thousand dollars), as follows, .to-wit: 
 (Te:i thousand dollars) upon the execution of 
 the conveyance to the said party ot the second 
 part within (thirty) days from the date hereof, 
 and the balance (five) years thereafter, secured 
 by a mortgage on the above described prem- 
 ises for the sum of (forty thousand dollars). 
 Said mortgage to bear interest at the rate of 
 (seven) per cent per annum, payable (annual- 
 ly). 
 
 And the said party of the first part, on re • 
 ceiviiig such payment, and on the execution of 
 the mortgage by the said party of the second 
 part, at the time and in the manner above men- 
 tioned, shall, at his own proper cost and ex- 
 pense, execute, acknowledge, and deliver, or 
 cau^e to be executed, acknowledged, and de- 
 livered, to the said party of the second part, a 
 good and suflicient grant deed to the said prem- 
 ises, accompanied with an unlimited certificate 
 of title, showing said premises to be free and 
 clear of all encumbrances. 
 
 The stipulations and agreements aforesaid 
 are to apply to and bind the heirs, executors, 
 administrators, and assigns of the respective 
 parties hereto. 
 
 In witness whereof, the parties hereto have
 
 54 THE LAW OF REAL ESTATE 
 
 affixed their hands the day and year first above 
 written. 
 
 (SiS^nature of seller > 
 
 (Signature of buyer ) 
 
 Sigrned and delivered in the presence of: 
 (Xames of witneJ^ses). 
 
 Form of Contract of Sale by Corpora- 
 tion. — If it is a corporation which is mak- 
 ing the contract, it should be so stated 
 by starting the agreement in this man- 
 ner: 
 
 "This agrreement, made this (first day of May, 
 In the year ninettu-n hundred and fifty), be- 
 t^veen the (Royal tlealty Company), a corpora- 
 tion organized and existing under the la-ws of 
 the state of (Califuruia), the party of the first 
 part," etc. 
 
 Otherwise the above forms need no 
 change, with the exception of the closing 
 paragraph, which should read Hke this: 
 
 "In ^'»1tness whereof, the parties have affixed 
 their hands, the sa'd (Royal Realty Company) 
 subscribing its corj-orate name and affixing its 
 corporate seal by its (president and secretary), 
 thereunto duly authorized the day and year 
 first above written." 
 
 The contract should then be signed 
 with the corporation name, followed by 
 the names of the president and secretary, 
 or other officers authorized by the board 
 of directors to make the contract. The 
 corporation seal should also be impressed 
 upon the instrument, and the name of a 
 witness, if convenient, added. 
 
 Form of Agreement of Sale of Real
 
 THE LAW OF REAL ESTATE 55 
 
 Estate on Installments. — Strange as it 
 may seem, when the vast amount of 
 business transacted in this manner is 
 considered, there is no specific law in 
 this state governing the sale of goods or 
 real property on installments or partial 
 ])ayments. The result is, there is great 
 freedom of contract in the matter of such 
 sales, and, generally speaking, if the 
 agreements do not violate the well-de- 
 fined principles of contracts in their con- 
 struction, the courts will enforce them 
 according to their terms. 
 
 The form which follows embodies the 
 language and construction usually em- 
 ployed in the best examples of such con- 
 tracts as used by the land and building 
 companies of the state which sell houses 
 and lots on the instarmient plan, ''like 
 rent." 
 
 > Under the terms of these agreements 
 I the title to the property remains in the 
 {seller until all the purchase price is paid. 
 I If the buyer fails to pay any of the in- 
 Istallments as they become due, the seller 
 may, at his option, car eel the contract, 
 I retain all the money already paid, and 
 1 regain possession of the premises. If 
 ;the buyer refuses to give up possession 
 ipeaceably, the seller ma.y then bring an
 
 56 THE LAW OF REAL ESTATE 
 
 action for trespass and ejectment, with 
 damages and costs added. 
 
 The seller is not compelled to consider 
 the contract as cancelled upon default 
 in the payments if he does not choose 
 to. It is optional with him. Instead, 
 he may sue for each payment as it be- 
 comes due and in default, or for all 
 those which are in default. This will 
 keep the contract in force, and any 
 judgment rendered in favor of the seller 
 may be collected out of any property be- 
 longing to the party in default which is 
 not exempt from execution. 
 
 The seller has still another remed}- 
 when payment is in default. He may 
 enforce performance of the contract by 
 sueing for the entire balance due upon 
 it ; but by so doing the sale becomes ab- 
 solute, and the title passes at once to 
 the buyer. 
 
 As most of the dealers in lands and 
 houses which sell the same on install- 
 ments are incorporated, the sample form 
 printed below presumes that the seller 
 therein is a corporation. The resolution 
 of the board of directors authorizing cer- 
 tain officers to make such contracts is 
 embodied in it. This is a good idea, as 
 it has the effect of making it part of the
 
 THE LAW OP REAL ESTATE 57 
 
 agreement. Samples of the various sorts 
 of stipulations or covenants most usually 
 inserted in such contracts are also given. 
 Of course, those which are favored can 
 be used and the others left out, or dif- 
 ferent ones added. Or, if the stipula- 
 tions desired are already on record in 
 some manner, they may be omitted from 
 the contract entirely, simply substituting 
 in their stead a phrase substantially like 
 this: ''Subject to such conditions, re- 
 strictions, and reservations as are now 
 of record on such lot in the office of the 
 county recorder of Los Angeles county." 
 It is considered better practice, how- 
 ever, to enumerate and delineate all the 
 desired stipulations in the contract it- 
 .-elf. 
 
 INSTALLMENT AGREEMENT FOR THE SALE 
 OF REAL ESTATE 
 
 THIS AGREEMENT, made and entered Into 
 this first day of January, in the year nineteen 
 hundred and fifty, betT*-een the !Ve^v Century 
 Improvement Company, a corporation duly or- 
 Kauized and existing: under the laws of the 
 stale of California, party of the first part, here- 
 inafter designated as the seller, and Henry P. 
 Lyon, party of the second part, hereinafter 
 desif^nated as the buyer, >vitnesseth: 
 
 That the said seller, for and in consideration 
 of the payments this day made, and the coven- 
 ants and aA^reements made by and on the part 
 of the said buyer, hereinafter contained, and 
 by virtue of and in pursuance of a resolution 
 of its board of directors duly adopted at a 
 meeting of said board of directors of said cor- 
 poration had on the t^-entleth day of October,
 
 58 THE LAW OF REAL ESTATE 
 
 •948, and Trhich said resolution Is in the fol- 
 lowing words, to-wit: ."That the president and 
 secretary be and they are hereby authorized 
 and empoT\ered for and fyn behalf of the cor- 
 poration to enter into, make, execute, sign, 
 ackno^vledf^e, and deliver any and all contracts, 
 deeds, couAeyances, or other writings necessary 
 Or proper to sell and convey to purchasers the 
 lands of this corporation, and that all such 
 ontracts be made in the name of this corpora- 
 tion, and be authenticated with its seal," agrees 
 to sell and convey unto the said buyer, and 
 said buyer agrees to buy, all that certain lot, 
 piece, or parcel of land, situate, lying and being 
 in the city of Wilmington, county of Los An- 
 geler, state of California, and more particularly 
 described as follows, to- wit: .Lot 21, block 84, 
 of Goodhope tract, as designated and delin- 
 eated upon a map of said tract now on record 
 in book 31, page 62, of maps, in the office of 
 the county recorder of Los Angeles county, 
 state of California, for the sum of sixteen hun- 
 dred dollars, in gold coin of the Vnited States; 
 and the buyer, in consideration of the premises, 
 agrees to buy and pay to the seller the said sum 
 of sixteen hundred dollars at the times and in 
 the manner as follows, to-vrit: .One hundred 
 dollars upon the execution and delivery of this 
 agreement, the receipt of vrhich is hereby ack- 
 noAvledged, and the further sura of thirty dol- 
 lars on the first day of February, 10.%0, and the 
 further sum of thirty dollars on the first day of 
 each and every month tlierenfter until the said 
 total sum of sixteen hundred dollars is fully 
 paid. All said deferred payments to bear in- 
 terest at the rate of seven per cent per annum, 
 said interest to be computed and payable seml- 
 anni:ally from date. 
 
 Tbe buyer is hereby given possession of the 
 preiJ'-ises aforesaid, and in consideration thereof 
 he hereby agrees to pay all state, county, and 
 city taxes of every nature wliich may hereafter 
 become due and payable on said premises, in- 
 cluding all other assessments which may be 
 levied thereon subsequent to the date hereof, 
 and to keep the buildings thereon insured dur- 
 ing the pendency of this agreement for the 
 sum of two thousand dollars, loss if any pay- 
 able to the seller as its interest may appear. 
 
 It is further covenanted and agreed by the 
 parties hereto, as covenants running with the
 
 THE LAW OF REAL ESTATE 59 
 
 land, and It is part of the consideration of this 
 agreement, that the deed conveying title to the 
 premises herein described shall contain and be 
 subject to the following lintltatlons, reserva- 
 tions and conditions, to->Ylt: 
 
 First. That no main building shall be erected 
 or suffered to remain upon the premises herein 
 described that is not reasonably worth twenty- 
 six hundred dollars, and that said main building 
 shall be erected before any other building on 
 the property. 
 
 Second. That said main building shall not 
 be less than t^vo full stories in height. 
 
 Third. That said main building, including 
 the porch or piazza, but not including the front 
 steps, shall not be less than twenty-five feet 
 from the front line of said lot. 
 
 Fourth. That said main building, or any part 
 of the premises herein described, shall not be 
 used for any other than residence purposes, 
 Avith the customary outbuildings, including gar- 
 age, v\-hich said outbuildings and garage shall 
 be erected only upon the rear portion of said 
 lot. 
 
 Fifth. That the said party of the second 
 part, the buyer herein, shall not use, or cause to 
 be used, or allo^v, or in any manner authorize, 
 either directly or indirectly, said premises to 
 be used, or any part thereof, for the purpose of 
 manufacturing or vending intoxicating liquors 
 for drinlc^ing purposes. 
 
 Sixth. That no part of said premises shall 
 be sold, leased, or rented to, or suffered to be 
 occupied by as tenants for hire or gratuitously, 
 any person not of the white or caucassian race. 
 
 Seventh. That the said buyer tshali not him- 
 self, nor shall he permit any other person or 
 corporation to prospect or drill for or develop 
 or produce oil or other hydro-carbon products. 
 
 Fighth. That there is hereby expressly re- 
 served and excepted from the operation of this 
 agreement to the party of the first part, the 
 seller herein, their successors, heirs and assigns 
 forever, the right of way for all purposes per- 
 taining to the laying of and maintenance of 
 pipes for water, gas, and sewers upon, over and 
 across said premises, of such sizes, quantities 
 and dimensions as may be reasonably required 
 for the uses for w^hlch the same are reserved. 
 
 Ninth. Provided, further, that each of the
 
 60 THE LAW OF REAL ESTATE 
 
 restrictions, covenants and conditions herein 
 contained as to the sale of intoxicating; liquors, 
 the erection of houses and outbuildiug^s, the 
 development and production of oil or other like 
 substances, and tlie occupancy of the premises 
 by other than white persons, shall in all re- 
 spects terminate and be of no further eflPect 
 on and after the first day of January, 1970. 
 
 Tenth. It is also expressly agreed and under- 
 stood by and between the parties hereto, that 
 in the event of any of the covenants or condi- 
 tions herein contained being or being held in- 
 valid or void, sucli invalidity or voidness shall 
 in no way alFect any valid covenant or condi- 
 tion herein contained. 
 
 And it is further covenanted and agreed, that 
 should the buyer fail to make any of the pay- 
 ments as specified herein, or fail to comply 
 with any of the foregoing reservations, condi- 
 tions, and restrictions, then the seller shall be 
 released from all obligations in law or equity 
 to convey said property, and said premises shall 
 immediately revert to the seller, and the seller 
 shall be entitled to the immediate possession 
 thereof, without further process of law, and this 
 agreement shall become void and at an end, 
 and the buyer shall waive and relinquish all 
 right thereto, and to all moneys theretofore 
 paid under this agreement; but the seller, on 
 receiving the full payments at the times and 
 in the manner above prescribed, agrees to then 
 execute and deliver to the buyer a good and 
 sufficient grant deed to the premises herein 
 described, accompanied with a certificate of 
 title from a reputable abstract company sho^r- 
 ing title vested in the !Vew Century Improve- 
 ment Company, free and clear of all encum- 
 brances except as to restrictions, taxes, and 
 assessments herein specified. 
 
 The stipulations, covenants and agreements 
 aforesaid are to apply to and bind the heirs, 
 executors, administrators, successors, and as- 
 signs of the respective parties hereto. 
 
 In witness whereof, the parties hereto have 
 affixed their hands, tlie said New Century Im- 
 provement Company subscribing its corporate 
 name and affixing its corporate seal by Its 
 president and secretary In pursuance of the
 
 THE LAW OF REAL ESTATE 61 
 
 aforementioned resolution thereunto authoriz- 
 ing them, the day and year first above written. 
 ISEW CENTURY IMPROVEMENT COMPANY, 
 
 President 
 
 Secretary 
 
 Signature of buyer 
 
 Signed, sealed, and delivered in the presence 
 of: 
 
 (Names of witnesses). 
 
 Form of Optional Contract of Sale. — 
 
 The following form of option for the 
 sale of real estate is all that is usually 
 necessary to bind the sale. It is sup- 
 posed that the buyer has looked into the 
 conditions attaching to the property be- 
 fore making his offer, and is taking it 
 subject thereto, but if desired any num- 
 ber of stipulations as to title, encum- 
 brances, etc., may be inserted in the 
 contract. 
 
 REAL ESTATE OPTION 
 
 (Sacramento, Cal., July 24, l»oO). 
 
 Received of (Herbert Woodley) the sum of 
 (fifty dollars), as part payment for the follow- 
 ing described property, situate in the county 
 of (San Joaquin, state of California), and more 
 particularly described as follows: 
 
 (Description of property). 
 
 The entire price to be paid for the above 
 described real property is (five thousand dol- 
 lars), to be paid as follows: 
 
 (Terms of payment). 
 
 A good and sufileient deed, accompanied by 
 an unlimited certificate of title showing title 
 vested in (Frank Harris), to be executed and 
 delivered by said (Frank Harris) to said (Her- 
 bert Woodley), or his assigns, upon the fulfill- 
 ment and completion of the terms and condi- 
 tions as aliove prescribed. Provided, however, 
 that If the payments are not made by the said 
 (Herbert Woodley) at the times and in the man-
 
 62 THE LAW OF REAL ESTATE 
 
 ner above prescribed, then this contract to be 
 void and of no eft'ect, and both parties re- 
 leased from all oblij^ations herein, and in that 
 event the said (fifty tloUars) paid on this date 
 is to be retained by (Frank Harris) as consid- 
 eration for this option. 
 
 (Signature of seller ) 
 
 (Signature of buyer ) 
 
 Sigrned and delivered in the presence of: 
 
 (Names of witnesses). 
 
 Contract of Sale Binds Seller to Exe- 
 cute Good and Sufficient Conveyance. — 
 As stated previously, the contract of 
 sale conveys no interest in the land it- 
 self; but an agreement for the sale of 
 real property OBLIGATES the seller to 
 execute and deliver a deed of conveyance 
 in form good and sufficient to pass the 
 title thereto. The right of the purchaser 
 to have such a title delivered to him, and 
 the duty of the seller to convey it, does 
 not grow out of or depend upon the 
 agreem.ent between the parties, but is 
 given by law, on the general right of the 
 purchaser to require it when the condi- 
 tions of the contract are fulfilled. If the 
 seller then refuses to convey, the buyer's 
 remedy is an action for specific per- 
 formance of the agreement, or for a re- 
 turn of the money paid in, which the 
 court will enforce if it would be just and 
 equitable to do so. 
 
 Or it may happen that the seller is un-
 
 THE LAW OF REAL ESTATE 63 
 
 able to make the transfer as agreed in 
 the contract. He may have been mis- 
 taken in his own title so he cannot con- 
 vey. In such case the buyer may sue 
 the seller and recover back what he has 
 paid, with interest, and also the value of 
 his improvements. 
 
 Recording Contract of Sale. — Not very 
 many of the contracts for the sale of 
 real estate seem to be recorded, pre- 
 sumably for the reason that so many of 
 the real estate transactions are either 
 made on the installment plan by large 
 companies, or are completed in escrow. 
 
 Such contracts may be recorded, how- 
 ever, and in important cases which take 
 some time to complete it is probably 
 well to do so. The effect of recording 
 or not recording an agreement of sale 
 is just the same as the effect of record- 
 ing or not recording a deed, which is 
 explained fully in the chapter on the 
 "Transfer of Real Property." If the 
 contract is to be recorded it must first 
 be acknowledged or proved, forms for 
 which are also to be found in that chap- 
 ter, under the heading of *'Acknowledg- 
 ment and Proof of Deeds." 
 
 Seals. — There is no distinction in this 
 state between a sealed and an unsealed
 
 64 THE LAW OF REAL ESTATE 
 
 instrument, and it is not necessary to 
 use either a wafer or a pen scroll in any 
 form after a signature to a contract of 
 sale to represent a seal. Neither is it 
 necessary to say, "\\' itness my hand and 
 seal ;" "W^itness my hand" is sufficient. 
 
 V/itnesses. — The law does not require 
 that there shall be witnesses to a con- 
 tract for the sale of real property, but it 
 is well to have at least one witness, for 
 the purpose of more conveniently prov- 
 in,sf the instrument, if necessary. Better 
 still to have two, so that either may 
 testify, if needed, should the other be 
 unable to appear. 
 
 Assignment of Contract of Sale. — A 
 contract for the sale of real property 
 may be assigned in the same manner and 
 with the same effect as any other con- 
 tract may be. The assignment carries 
 with it, of course, only such right, title, 
 and interest as the assignor may have in 
 the contract at the time of the assign- 
 ment. This is popularly called his 
 "equity,'* although in reality there is no 
 recognized equity in the realty involved 
 in a contract of sale. 
 
 There may be as many assignments of 
 the contract as there are new owners of 
 the so-called equity; that is, every as-
 
 THE LAW OF REAL ESTATE 65 
 
 signee may assign his interest to another 
 person, and so on, ad infinitum. 
 
 Forms for Assignment of Contract. — 
 The contract of sale may be assigned, if 
 it has not been recorded, by endorse- 
 ment on the instrument itself, in the fol- 
 lowing language : 
 
 ASSIGN^IENT OF UNRECORDED CONTRACT 
 FOR VALUE RECEIVED, I do hereby sell, 
 nsiKliern, and transfer to (Lewis Leavitt), his 
 heirs and assig'n»«, all my rislit, title and in- 
 terest in, to, and under the \Tithln instrument, 
 together T»-ith and including all moneys hereto- 
 fore paid thereunder. 
 
 (SIgrnature of assignor ) 
 
 (Date ) 
 
 The actual or real consideration for 
 an assignment need not be shown. 
 
 If, after the assignment, it is desired 
 to record the contract, both the original 
 agreement and the assignment must be 
 first acknowledged. 
 
 If the original contract has already 
 been recorded, then the follov/ing form 
 of assignment should be used : 
 
 ASSTGXMENT OF RECORDED CONTRACT 
 K\OV4 ALL, >IEX BY THESE PRESENTS: 
 That (Snmuel Simpson), the party of the first 
 part, fo? and in consideration of the sum of 
 ((en) doTlars, in hand paid by (Thomas Taber), 
 ihe rariy of the second part, the receipt of 
 which itt hereby ackrovrIeds?ed, does by these 
 presents grant, assign, transfer, and set over 
 unto the said party of the second part, all his 
 right, title, and interest to, in, and under a 
 certain contract or agreement of sale, bearing 
 date the (nineteenth day of July, 1950), made
 
 66 THE LAW OF REAL ESTATE 
 
 and executed by (name of seller), to (Samuel 
 Simpson), and recorded In book number (3044> 
 of Deeds, at page (190), in the office of the 
 county recorder of (San Bernardino) county,, 
 state of (California), of and to the real property 
 more particularly described as follows, to-wlt: 
 
 (Here describe property, same as in the agree- 
 ment). 
 
 In ■»Titness whereof, the said party of the flrst 
 part has herennio set his h«nd this (flrst day 
 of December, 1950). 
 
 (Signature of assignor ). 
 
 Signed and delivered in the presence of: 
 
 (Names of witnesses). 
 
 The assignment should be acknowl- 
 edged and recorded also, in the same 
 recorder's office where the original con- 
 tract is recorded. 
 
 But if the original contract is not re- 
 corded, the assignment of it cannot he. 
 
 Form of Contract for Exchange of 
 Property. — AVhere parties desire to ex- 
 change properties without the employ- 
 ment of an agent, the following form of 
 contract will answer the purpose ad- 
 mirably. If to be exchanged through 
 the medium of an agent, the same form 
 with commission clauses added will be 
 found in the chapter on "Real Estate 
 Agents." 
 
 AGREEMENT FOR EXCHANGE OF REAL 
 ESTATE 
 THIS AGREEMENT witnesseth: That (I, 
 Jacob Jackson), am the owner of the following 
 described first piece of property, situate, lying 
 and beJnpT in the (city of Monrovia, county of 
 Los Angeles, state of California), and more 
 particularly described as foUowa* to«frttt
 
 THE LAW OF REAL ESTATE 67 
 
 (Give description here, same as in deed, also 
 Btatingr encumbrances and restrictions, if any), 
 >Thich I desire to exchange for the follo^vlngr 
 described second piece of property, owned by 
 (Jeremiah Johnson), situate, lying and being In 
 the (city of Compton, county of Los Angeles, 
 state of California), and more particularly de- 
 scribed as follows, to-wit: 
 
 (Here describe second piece of property suf- 
 ficiently to identify it, also stating- encum- 
 brances and restrictions, if any), 
 upou the terms and conditions as set forth be- 
 low, to-wlt: 
 
 (Here set forth in detail the terms of the 
 exchange). 
 
 And I hereby agree, that if the said (Jeremiah 
 Johnson) shall accept the proposition to ex- 
 change the above described property on the 
 above terms, that I will, within (thirty days) 
 thereafter, furnish a certificate of title, or ab- 
 stract, from some reputable abstract company, 
 showing the said property to be free and clear 
 of all encumbrance, except (state encumbrance 
 here, if any), and then, upon the fulfillment of 
 said terms and conditions, execute and deliver 
 a good and sufficient grant deed conveying 
 title to the property first above described to 
 the said (Jeremiah Johnson), his assigns or 
 representatives. 
 
 I also agree to allow a reasonable time for 
 the furnishing of a certificate of title of the 
 second of the above described properties, and 
 a good and sufficient grant deed conveying the 
 same. 
 
 ( Signature of first party ) 
 
 (Dated at ) 
 
 The following- form of acceptance of 
 the above offer may be written on the 
 same sheet of paper, or on a separate 
 sheet and attached thereto. When prop- 
 erly signed and dated, the contract be- 
 tween the parties is complete:
 
 68 THE LAW OF REAL ESTATE 
 
 AGREEMENT OF ACCEPTANCE OF OFFER 
 TO EXCHANGE PROPERTY 
 
 THIS AGREEMENT wltnesseth: .That (Jere- 
 miah Johnson), o>rner of the second piece of 
 property described in the fvithin instrument, 
 hereby accepts the proposition of exchange 
 made therein, and upon the terms and condi- 
 tions stated therein, and ag^rees, vrithin (thirty 
 days), to furnish a certificate of title, from a 
 reputable abstract company, 8ho\>'ing the said 
 property to be free and clear of all encum- 
 brance, except (state encunibrauce here, if any), 
 and then, upon the fulfillment of said terms 
 and conditions, to execute and deliver a good 
 and sufficient srant deed of snid property to 
 the said (Jacob Jaclsson), his assi&rns or repre- 
 sentatives. 
 
 (Siernatnre of second party ) 
 
 (Dated at )
 
 CHAPTER IV. 
 
 TRANSFER OF REAL 
 PROPERTY 
 
 Transferring real property is an act of 
 the parties, or of the law, by which the 
 title to the property is conveyed from 
 one living person to another. 
 
 The transfer can be made only by an 
 instrument in writing, usually called a 
 deed, or grant. 
 
 The term "grantor" is used to signify 
 one who conveys land; and he to whom 
 the conveyance is made is called the 
 "grantee." 
 
 When a transfer of real property is 
 accomplished, it is not the corporeal or 
 actual property itself which is conveyed, 
 but rather the incorporeal something 
 which we speak of as the "title." 
 
 Title may be said to be the means 
 whereby the owner of real property has 
 the just and legal possession and enjoy- 
 ment of it. In other words, it is the evi- 
 dence which a person has of the right to
 
 70 THE LAW OF REAL ESTATE 
 
 the possession of property — the owner- 
 ship of it. Therefore it is that when the 
 property is sold it is the title — the evi- 
 dence of ownership — in the form of a 
 grant or deed thereof, which is trans- 
 ferred. 
 
 The transfer must be accompanied 
 with certain formalities, and until these 
 are fully complied with there can be no 
 alienation or conveyance of the title by 
 one person in favor of another. The 
 process of conveyance has, however, been 
 much simplified of recent years, although 
 many forms of deeds still contain an un- 
 required amount of verbal rubbish and 
 redundant phraseology. 
 
 Following in this chapter will be found 
 the various forms of grants or deeds now 
 in common use in this state, with vari- 
 ous useful comments and explanations. 
 
 DESCRIPTION OF PROPERTY. 
 
 What Is SufHcient Description — The 
 premises to be transferred may be de- 
 scribed in detail by measurements ac- 
 cording to the survey, or it may be de- 
 scribed as being the premises located at 
 such and such a number on such and 
 such a street in such and such a town ; 
 or if the premises are known by some
 
 THE LAW OF REAL ESTATE 71 
 
 popular name, such as the "Kearney 
 ranch," for instance, it will be sufficient 
 to describe them simpl}- by such name. 
 
 It is also a sufficient description to re- 
 fer to another description in some other 
 deed, or plot, map, or other instrument 
 on record in a public office. 
 
 CONSIDERATION FOR TRANSFER 
 
 Kinds of Consideration — There must 
 be a consideration for every valid deed. 
 
 The consideration may be either 
 *'good" or 'Valuable.*' 
 
 Good consideration is founded upon 
 blood relationship, or natural love and 
 affection, such as exists between parent 
 and child, or husband and wife. Such 
 consideration, unless used as the basis of 
 intent to defraud creditors or others, is 
 sufficient in law to justify the transfer. 
 
 Valuable consideration is founded up- 
 on something deemed valuable, such as 
 money, stocks, other lands, goods, serv- 
 ices, or the like, which the law esteems 
 an equivalent for the grant. 
 
 Marriage is a valuable consideration ; 
 so is support and maintenance. 
 
 The true consideration need not be ex- 
 pressed in the deed. It may be stated 
 as orie dollar, or any sum, or it need
 
 72 THE LAW OF REAL ESTATE 
 
 not be mentioned at all. If it becomes 
 necessary to prove the true considera- 
 tion the law permits it to be shown by 
 oral testimony. 
 
 V/ARRANTY. 
 
 Is Implied by Law. — The forms of 
 deeds now generally used here are the 
 simple "Grant Deed," and the ''Grant, 
 Bargain and Sale Deed." Neither form 
 contains any of the covenants of war- 
 ranty often found in conveyances, for 
 the reason that the law provides that 
 every "grant" of real property carries 
 with it an implied warranty, which may 
 be sued upon the same as if inserted in 
 the deed, thereby rendering it unneces- 
 sary to insert warranty clauses in the 
 instrument itself. The language of the 
 code is as follows : 
 
 From the use of the word "grant" in 
 anv conveyance by which an estate of 
 inheritance or fee simple is to be passed, 
 the following covenants, and none other, 
 on the part of the grantor for himself 
 and his heirs to the grantee and his 
 heirs and assigns, are implied, unless 
 restrained by express terms contained in 
 such conveyance : 
 
 1. That previous to the time of the
 
 THE LAW OF REAL ESTATE 73 
 
 execution of such conveyance, the grant- 
 or has not conveyed the same estate, or 
 any right, title or interest therein, to 
 any person other than the grantee; 
 
 2. That such estate is at the time of 
 the execution of such conveyance free 
 from encumbrances done, made, or suf- 
 fered by the grantor, or any person 
 claiming under him. 
 
 Such covenants may be sued upon in 
 the same manner as if they had been 
 expressly stated in the conveyance. 
 
 "Encumbrances" includes taxes, as- 
 sessments, and all liens upon real prop- 
 erty. 
 
 PROPERTY RIGHTS OF HUSBAND 
 AND WIFE. 
 
 Necessity for Signatures of Both to 
 Transfer. — The property rights of hus- 
 band and wife in this state, and the 
 law as to the conveyance of the same 
 bv either or both, is fully set forth in 
 the chapter on "Ownership and Control 
 of Real Property." 
 
 FORMS FOR DEEDS. 
 
 The following forms represent about 
 all those which the conveyancer usually 
 finds necessary:
 
 74 THE LAW OF REAL ESTATE 
 
 Grant Deed, Code Form. — Realizing 
 that the usual forms of deeds contained 
 too much useless verbiage, the legisla- 
 ture prescribed substantially the form of 
 grant deed which follows as being suf- 
 ficient to convey real property in this 
 state. Nothing could be simpler; at the 
 same time nothing more is necessar}^ 
 It fills all the requirements of a valid 
 conveyance, and is rapidly coming into 
 general use : 
 
 FORM FOR GRANT DEED 
 
 (Bernard Bailey), of the (County of Inyo, 
 eitate of California), for and in consideration of 
 tlie sum of (one hundred dollars), the receipt 
 >vhereof is hereby ackno^vledged, does hereby 
 ^rant to (Charles Conley) all that real prop- 
 erty situate in the county of (Inyo, state of 
 California), rTescribed as follorrs: 
 
 (Description of property). 
 
 AVitness my hand this (first day of March, 
 nineteen hundred and fifty). 
 
 Signed and delivered in the presence of: 
 
 (Names of Tritnesses). 
 
 (Signature of grantor ) 
 
 Grant, Bargain and Sale Deed. — This 
 is another simple form of deed which 
 shares the popularity of the somewhat 
 simpler grant deed given above : 
 
 FORM FOR GRANT. BARGAIN AND SALE 
 DEED 
 
 THIS I>DENTrRE, made the (fourth day of 
 April, in the year of our Ijord nineteen hun- 
 dred nnd f!fty>, bevvrcrn (David Dickinr.cn), 
 party of the first part, and (Daniel Derondo), 
 party of the second part, 
 
 Wltnesseth: Tliat the aald party of tbe first
 
 THE LAW OF REAL ESTATE 75 
 
 part, for and In consideration of the sum of 
 (one hundred dollars), to hiui In hand paid by 
 the said party of the second part, the receipt 
 whereof Im hereby acknowledged, does by these 
 presents fcrant, bargain and sell, convey and 
 confirm unto the said party of the second part, 
 and to his heirs and aKsigns forever, all that 
 certain lot, piece, or parcel of land situate, 
 lying- and being in the (county of Santa Bar- 
 bara, state of California), and bounded and par- 
 ticularly dei>«cribed as follows, to- wit: 
 (Description of property). 
 
 Together with all and singular the tenements, 
 hereditaments, and appurtenances thereunto be- 
 longing or in anywise appertaining, and the re- 
 version and reversions, remainder and remaind- 
 ers, rents, Issues and profits thereof. 
 
 To have and to hold, all and singular the 
 said premises, together with the appurtenances 
 unto «he said party of the second part, and to 
 his heirs and assigns forever. 
 
 In witness whereof, the said party of the 
 first part has hereunto set his hand the day 
 and year first above ^vrltten. 
 
 (Signature of grantor ) 
 
 Signed and delivered In the presence of: 
 
 (Names of witnesses). 
 
 Warranty Deed. — This form of deed 
 is not very much used in this state, for 
 the reason, as previously stated, that the 
 covenant of warranty is impHed by law 
 in the use of the word ''grant." 
 
 FORM FOR W^ARRANTY DEED 
 THIS INDENTURE, mace the (tenth day of 
 May, in the year of our Lord nineteen hundred 
 and fifty), between Howard Hendricks, the 
 party of the first part, and (Abel Apper- 
 son), the party of the second part, witnes- 
 seth: .That the said party of the first part, 
 for and in consideration of the sum of (one 
 thou.sand dollars), gold coin of the United States 
 of America, to him in hand paid by the said 
 party of the second part, the receipt \vhereof 
 la hereby acknowldged, does by these presents 
 grant, bargain and sell, convey and confirm 
 unto the said party of the second part, and to
 
 It THE LAW OF REAL ESTATE 
 
 his heirs and assigrns forever, all that certain 
 lot, piece, or parcel of land, situate, lying and 
 being in the (county of Ventura, state of Cali- 
 fornia), and bounded and particularly described 
 as folloTTS, to-Tvit: 
 
 (Description of property). 
 
 Together vrith all and singular the tenements, 
 hereditaments, and appurtenances thereunto be- 
 longing or iu any^Tise appertaining, and the 
 reversion and reversions, remainder and re- 
 iiiKiuders, rents, i»sues and profits thereof. 
 
 To have and to hold the saiue to the said 
 (Abel Apperson), his heirs and assigns forever, 
 and the said first party does hereby covenant 
 with the said (Abel Apperson) and his legal 
 representatives that the said real estate is free 
 from all encumbrances, and that he >vill, and 
 his heirs, executors and administrators shall, 
 ■»varrant and defend the same to the said (Abel 
 Apperson), his heirs and assigns forever, against 
 the just and lawful claims and demands of all 
 persons whomsoever. 
 
 In witness whereof, the said party of the 
 first part has hereunto set his hand the day 
 and year first above written. 
 
 (Signature of grantor > 
 
 Sierned and delivered in the presence of: 
 
 (Xames of witnesses). 
 
 Quitclaim Deed. — This form of deed 
 is only used where the grantor has an 
 interest in land as one of several heirs, 
 or as a joint owner, and wishes to con- 
 vey his share to another heir, or to 
 another joint owner; or in cases where 
 Q person has some minor interest in 
 land, or some supposed or possible in- 
 terest which is not clearly defined, which 
 he wishes to convey to the owner of 
 the fee for the purpose of clearing the 
 title. 
 
 A quitclaim deed contains none of the
 
 THE LAW OF REAL ESTATE 77 
 
 covenants of warranty, but purports to 
 convey and does convey simply what- 
 ever interest the grantor may be pos- 
 sessed of, or is supposed to be pos- 
 sessed of, at the time of its execution. 
 The grantor warrants nothing, and the 
 grantee is said to take the risk of the 
 title conveyed by the quitclaim, unless 
 there is fraud. 
 
 FORM FOR QUITCLAIM DEED 
 
 THIS INDENTURE, made the (fourteenth day 
 of October, lii the year of our Lord, nineteen 
 hundred and fifty), betT»een (Eb»'nezer Ewing), 
 the party of the first part, and (Caleb Cochran), 
 the party of the second part, ^;yltnes8eth: .That 
 the said party of the first part, for and in 
 consideration of the sum of (one hundred dol- 
 lars), to him In hand paid by the said party of 
 the second part, the receipt -whereof is hereby 
 aclcnoTvIed^ed, has remised, released and for- 
 ever quitclaimed, and by these presents does 
 remise, release and forever quitclaim, unto the 
 said party of the second part and to his heirs 
 and assigns, all that certain lot, piece, or par- 
 cel of land, situate, lying and beins' in the 
 (county of Los Angreles, state of California), 
 and bounded and particularly described as fol- 
 lo\^-s, to-wit: 
 
 (Here describe the property or the Interest to 
 be quitclaimed). 
 
 AVitness my hand the day and year first above 
 written. 
 
 (Signature of grrantor ) 
 
 Slgmed and delivered in the presence of: 
 
 (Names of >vitnesses). 
 
 Deed of Gift. — As stated at the begin- 
 ning of this chapter, love and affection 
 is a sufficient consideration for the 
 transfer of property. The following
 
 78 THE LAW OF REAL ESTATE 
 
 form will suffice where the conveyance 
 is intended as a gift, without money 
 consideration : 
 
 FORM FOR DEED OF GIFT 
 
 THIS INDENTURE, made the (second day of 
 June, in the year of our Lord nineteen hundred 
 and fifty), between (Edward Edwards) of the 
 (county of Fresno, state of California), the 
 party of the first part, and (Frank Folsom Ed- 
 wards), the party of the second part, wit- 
 nesseth: .That the said party of tlie first part, 
 for and in consideration of the love and affec- 
 tion which the said party of the first party has 
 and bears unto said party of the second part, 
 as also for the better maintenance, support, 
 protection and livelihood of said party of the 
 second part, does by these presents, srive, grant, 
 alien and confirm, unto the said party of the 
 second part, and to his heirs and assigns for- 
 ever, all that certain lot, piece, or parcel of 
 land, situate, lying: and bein$? in the (city of 
 Lodi, county of Fresno, state of California), and 
 bounded and particularly described as follow^s, 
 to- wit J 
 
 (Description of property). 
 
 Together with all and singular the tenements, 
 hereditaments and xippurtenances thereunto be- 
 lon^in^, or in anywise appertaining:, and the 
 reversion and reversions, remainder and re- 
 mainders, rents. Issues and profits thereof. 
 
 To have and to hold, all and sinj^ular the 
 said premises, together with the appurtenances 
 and privileges thereunto incident, unto the said 
 party of the second part, his heirs and assigns 
 forever. 
 
 In witness whereof, the said party of the 
 first part has hereunto set his hand the day 
 and year first above written. 
 
 (Signature of grantor ) 
 
 Signed and delivered in the presence of: 
 
 (Names of witnesses). 
 
 Deed by Corporation. — The property 
 of a corporation can be sold and trans- 
 ferred only by resolution of its board
 
 THE LAW OF REAL ESTATE 79 
 
 of directors or stockholders. The offi- 
 cers, as such, have no right or authority 
 to dispose of its possessions, unless spe- 
 cially authorized so to do. When so 
 authorized the following form is usually 
 employed : 
 
 FORM FOR BARGAIN AND SALE DEED BY 
 CORPORATION 
 
 THIS INDE.XTURE, made the (third day of 
 January, In the year of our L.ord nineteen 
 hundred and fifty), between (Standard aianu- 
 facturingr Co.), a corporation organized under 
 the laws of the state of California, and having 
 Its principal place of business in the (city of 
 San Francisco, state of California), the party 
 of the first part, and (George Goodhart), the 
 party of the second part, witnessetli: .That the 
 said party of the first part, for and in consid- 
 eration of the sum of (ten dollars), to it in 
 hand paid by the said party of the second part, 
 the receipt whereof is hereby ackno^vledged, 
 has granted, bargained and sold, conveyed and 
 confirmed, and by these presents does grant, 
 bargain and sell, convey and confirm unto tlie 
 said party of the second part, and to his heirs 
 and assigns forever, all that certain lot, piece, 
 or parcel of land situate, lying and being in 
 the (county of San Mateo, state of California), 
 and particularly described as follows, to- wit: 
 
 (Description of property). 
 
 Together with all and singular the tenements, 
 hereditaments and appurtenances thereunto be- 
 lonerin^: or in any^vise appertaining, and the 
 reTeralon and re-verslons, remainder and re- 
 mainders, rents, issues and profits thereof. 
 
 To have and +o hol'^- al» «nd sin-riilar the said 
 premiaea, together with the appurtenances, on- 
 to the party of the second part and to his heirs 
 and assigns forever. 
 
 In witness whereof: The said party of the 
 ilrst part has caused its corporate name and 
 •eal to be affixed by its (president) and (aeere-
 
 80 THE LAW OF REAL ESTATE 
 
 tary) thereunto duly authorized the day and 
 year in this Indenture first above ^Tritten. 
 (Corporate seal) 
 
 By , President 
 
 By , Secretary 
 
 Joint Tenancy Deed. — The peculiar 
 feature of this form of deed is the right 
 of survivorship. That is, where prop- 
 erty is conveyed to two or more persons 
 tas joint tenants, each holds an equal 
 share, with equal rights in all respects, 
 and upon the death of one joint tenant 
 the estate passes in its entirety to the 
 survivors, and finally to the last sur- 
 vivor, and not to the heirs or representa- 
 tives of the deceased. This form of 
 deed is used quite frequently in convey- 
 ing property to husband and wife : 
 
 FORM FOR JOINT TENANCY DEED, WITH 
 RIGHT OF SURVIVORSHIP 
 THIS INDENTURE, made this (sixth day of 
 November, in the year of our Lord nineteen 
 hundred and fifty), between (Lewis Lawson), 
 the party of the first part, and (AA'illlam 
 AVhlteside and Helen "Uniiteslde), husband 
 and wife, the parties of the second part, 
 as joint tenants with rii^ht of survivorship, 
 witnesseth: That the said party of the first 
 part, for and In consideration of the sum 
 of (ten dollars), to hiiu In hand paid by 
 the parties of the second part, the receipt 
 whereof Is hereby acknowledged, does by these 
 presents grant, bargain and sell, convey and 
 confirm unto the ."^aid parties of the second 
 part as .loint tenants, and to the survivor of 
 them, his or her heirs and assigns forever, all 
 that certain lot, piece, or parcel of land situate, 
 lying and being In the (county of Santa Clara, 
 state of California), and bounded and partlcii'« 
 larly described as follows, to-wlt:
 
 THE LAW OF REAL ESTATE 81 
 
 (Description of property). 
 
 Together with all and siug^iilar the tenements, 
 hereditaments, and appurtenances thereunto be- 
 longlngr or in anytvlse appertaining, and the 
 reversion and reversions, remainder and re- 
 mainders, rents, issues and profits thereof. 
 
 To have and to hold, all and singular the 
 said premises, together v*-ith the appurtenances, 
 unto the said parties of the second part as joint 
 tenants, ard to tlie survivor of theui, his heirs 
 and assigns forever. 
 
 In vFitness whereof, the said party of the first 
 part has hereunto set his hand the day and 
 year first above vrritten. 
 
 ( Signature of grantor ) 
 
 Signed and delivered in the presence of: 
 
 (Names of vritnesses). 
 
 SUGGESTIONS FOR USE OF THE 
 FORMS. 
 
 Changing the Phraseology. — In using 
 the forms in this chapter, the nouns, 
 pronouns and verbs should of course be 
 changed to suit where there is more 
 than one grantor or grantee, or the 
 grantor or grantee is a female or a cor- 
 poration. 
 
 In Case of Mortgage. — If the property 
 to be conveyed is mortgaged, the fol- 
 lowing clause should be inserted in the 
 deed after the description : 
 
 Subject to a mortgage of (five hundred dol- 
 lars), payable to (Simon Simpson), and paying 
 interest at the rate of (seven) per cent per 
 annum, which the party of the second part as- 
 sumes and agrees to pay. 
 
 Stating Marital Condition of Grantor. 
 
 — It is customary nowadays in convey-
 
 82 THE LAW OF REAL ESTATE 
 
 ancing to insert in the deed, after the 
 name of the grantor, a phrase indicat- 
 ing the marital state of said grantor, as 
 per the following examples : 
 
 "Bet'ireen John Bro^tvn, a •^vidoiver, the party 
 of the first part," etc. 
 
 "Between Thomas Smith, a single man, the 
 party of the first part," etc. 
 
 **Bet'»veen Sarah Thompson, a ■wldOTv,! the 
 party of the first part," etc. 
 
 "Between Jennie Roe, a single Troman, the 
 party of the first part," etc. 
 
 Requiring Signatures of Both Hus- 
 band and Wife. — As explained in a pre- 
 vious chapter, it is not necessary to 
 have the signatures of both husband 
 and wife to an instrument of convey- 
 ance of the separate property of either, 
 but for the reasons there given it is now 
 customary to require both. Therefore 
 deeds by married persons should be 
 worded this way, placing the name of 
 the one in whose name the property 
 stands first: 
 
 "Between James Gibson and Hannah Gibson, 
 husband and ^vlfe, the parties of the first part,'' 
 etc. 
 
 "Between Mabel Morrison and Walter Morri- 
 son, husband and wife, the parties of the first 
 part," etc. 
 
 When Grantor Must State Former 
 Name. — Any person in whom the title 
 to real estate is vested, who shall after-
 
 THE LAW OF REAL ESTATE 83 
 
 wards, from any cause, have his or her 
 name changed, must, in any conveyance 
 of said real estate so held, set forth the 
 name in which he or she acquired title 
 to said real estate. Example : 
 
 ''Between Clara Burton, formerly Clara MIb- 
 ner, the party of the first part," etc. 
 
 Restrictions. — Where several restric- 
 tions are to be inserted in the deed it 
 is well to number them in rotation for 
 convenience. The following examples 
 cover nearly all those usually employed, 
 but others may be easily framed along 
 the same lines : 
 
 Provided, hci^'ever, that this conveyance is 
 made and accepted on each of the following 
 conditions, which are hereby made covenants 
 running' with the land, to-wit: 
 
 First. That no main building shall be erected 
 or suffered to remain upon the premises herein 
 conveyed that is not reasonably worth twenty- 
 six hundred dollars, and that said main building; 
 shall be erected before any other building on 
 the property. 
 
 Second. That said main building shall not 
 be less than two full stories in height. 
 
 Third. That said main building, including 
 the porch or piazza, but not including the front 
 steps, shall not be less than twenty-five feet 
 from the front line of said lot. 
 
 Fourth. That said main building, or any part 
 of the premises herein described, shall not be 
 used for any other than residence purposes, 
 with the customary outbuildiugs, including gar- - 
 age, which said outbuildings and garage shall 
 be erected only upon the rear portion of said 
 lot. 
 
 Fifth. That the said party of the second 
 part, the buyer herein, shall not use, or cause to 
 be used, or allow, or in any manner authoriae.
 
 84 THE LAW OF REAL ESTATE 
 
 either directly or Indirectly, said premises to 
 be used, or any part thereof, for the purpose o£ 
 manufacturing or vending^ intoxicating liquors 
 for drinking purposes. 
 
 Sixth. That no part of said premises shall 
 be sold, leased, or rented to, or suffered to be 
 occupied by as tenants for hire or gratuitously, 
 any person not of the •white or caucassian race. 
 
 Seventh. That the said buyer shall not him- 
 self, nor shall he permit any other person or 
 corporation to prospect or drill for or develop 
 or produce oil or other hydro-carbon products. 
 
 Eighth. That there la hereby expressly re- 
 served and excepted from the operation of this 
 agreement to the party of the first part, the 
 seller herein, their successors, heirs and assigns 
 forever, the right of way for all purposes per- 
 taining to the laying of and maintenance of 
 pipes for water, gas, and sewers upon, over and 
 across said premises, of such sizes, quantities 
 and dimensions as may be reasonably required 
 for the uses for which the same are reserved. 
 
 ZVinth. Provided, further, that each of the 
 restrictions, covenants and conditions herein 
 contained as to the sale of intoxicating liquors, 
 the erection of houstes and outbuildings, the 
 development and production of oil or other like 
 substances, and the occupancy of the premises 
 by other than white persons shall in all re- 
 spects terminate and be of no further effect on 
 and after the first day of January, 1970. 
 
 Tenth. It is also expressly agreed and under- 
 stood by and between the parties hereto, that 
 In the event of any of the covenants or condi- 
 tions herein contained being or being held In- 
 valid or void, such invalidity or voidness shall 
 in no way affect any valid covenant or coudltion 
 herein contained. 
 
 And It Is further covenanted and agreed that 
 upon the breach of any of the foregoing condi- 
 tions and restrictions, prior to the first day of 
 January, 1970, that the title to said premises 
 shall immediately revert to and vest In the said 
 party of the first part, his heirs or representa- 
 tives, and he shall be entitled to the immediate 
 possession thereof; but such reversion shall not 
 affect the lien of any mortgage which In good 
 faith may then be existing upon said property, 
 but such mortgage shall remain a valid encum- 
 brance thereon; and provided further, that the
 
 THE LAW OF REAL ESTATE 85 
 
 mortjsragee, or his successors in interest, irhether 
 by purchase or otherwise, siiull be bound by the 
 covenants herein contained. 
 
 ACKNOWLEDGMENT AND PROOF 
 OF INSTRUMENTS. 
 
 Definition. — To acknowledge an in- 
 strument is to appear and admit or 
 avow, under oath, before a proper offi- 
 cer or court, that the person so appear- 
 ing and taking the oath is the person 
 who executed the instrument, and that 
 the signature is his signature, or that 
 he authorized it to be done and sub- 
 scribed for him, for the purpose of hav- 
 ing a certificate attached wdiich will 
 qualify the instrument to be admitted 
 in evidence, or to be recorded, or both, 
 without further proof of genuineness. 
 
 Acknov^ledgment or Proof of Instru- 
 ments Necessary Before Recording. — 
 Before a deed, or contract of sale of real 
 property, or other instrument, can be 
 recorded, it must be acknowledged or 
 proved before a person authorized by 
 law to take such acknowledgment or 
 proof. The instrument can then be pre- 
 sented to the county recorder to be 
 spread upon the public records at any 
 time thereafter whenever it may be de- 
 sired to do so.
 
 86 THE LAW OP REAL ESTATE 
 
 Who May Take Acknowledgments or 
 Proof of Instruments. — The proof or 
 acknowledgment of an instrument may 
 be made at any place within this state 
 before a justice of the supreme court, 
 or a clerk of the same, or a judge of a 
 superior court. 
 
 Within the city, county, city and 
 county, or township, for which the offi- 
 cer was appointed or elected, before 
 either a notary public; a justice of the 
 peace; a county recorder; a court com- 
 missioner; a clerk of a court of record. 
 
 Or, when any of the officers men- 
 tioned are authorized by law to ap- 
 point a deputy, the acknowledgment or 
 proof may be taken by such deputy, in 
 the name of his principal. 
 
 Forms for Acknowledgment of In- 
 struments. — The majority of instruments 
 are acknowledged before notaries. Many 
 of them are not attorneys, and a con- 
 siderable number have but limited ex- 
 perience. They are supposed to have 
 proper forms for acknowledgments, but 
 it is just as well to read them over care- 
 fully to see if they comply with the pro- 
 visions of the law. 
 
 An officer taking the acknowledgment 
 of an instrument must endorse thereon.
 
 THE LAW OF REAL ESTATE 87 
 
 or attach thereto, a certificate substan- 
 tially as follows, together with an im- 
 pression of his seal, and the date when 
 his commission expires, if a notary: 
 
 ACKNOWLEDGMENT OF INSTRIBIENT 
 State of California, 
 
 88. 
 
 County of Inyo, 
 
 On this (twentieth day of June, in the year 
 nineteen hundred and fifty), before me (William 
 W'atklns), a notary public in and for said coun- 
 ty, reHlding* therein, duly commissioned and 
 ■vrorn, personally appeared (Lemuel Lewis) and 
 (Lucy Lewis), known to me to be the persons 
 whose names are subscribed to the within in- 
 strument, and acknowledged to me that they 
 executed the same. 
 
 Witness my hand and official seal. 
 
 (Seal) (WILLIAM AA^ATKI\S), 
 
 Notary Public in and for said county. 
 
 My commission expires: 
 
 (Date when it expires). 
 
 The acknowledgment of an instru- 
 ment must not be taken unless the offi- 
 cer taking it knows, or has satisfactory 
 evidence, on the oath or affirmation of a 
 credible witness, that the person making 
 such acknowledgment is the individual 
 who is described in and who executed 
 the instrument; or, if executed by a 
 corporation, that the person making 
 such acknowledgment is the president 
 or secretary of such corporation, or 
 other person who executed it on its be- 
 half. 
 
 If the officer taking the acknowledg-
 
 88 THE LAW OF REAL ESTATE 
 
 ment is not personally acquainted with 
 the party executing the instrument, it 
 is his duty to demand a credible witness 
 whom he knows. The latter part of the 
 form should then be changed to read 
 like this: 
 
 Personally appeared (So and So>, proved to 
 me on the oath of (Andrew Ackerman), a credi- 
 ble ^vitness, to be the persons Tfhose names are 
 subscribed to the within instrument, and ac- 
 knowledged to me that they executed the same. 
 
 If the execution of the instrument is 
 by a corporation, the form should read 
 like this : 
 
 Personally appeared (So anfl So), kno-wn to 
 me to be the (president), and (So and So), know^n 
 to me to be the (secretary, or whatever author- 
 iiKed officer) of the cornoration described in and 
 that executed the within instrument, and known 
 to me to be the persons v^ho executed the ^vithin 
 instrument on behalf of the corporation therein 
 named, end acknoT»-ledgred to me that such cor- 
 poration executed the same. 
 
 If the instrument is executed by a 
 person under a power of . attorney, the 
 language of the form should be changed 
 to read like this: 
 
 Personally appeared (So and So), known to 
 me to be the person whose nante is subscribed 
 to the within instrument as the attorney in fact 
 of (Byron Booth), and acknowledged to me that 
 he subscribed the name of (Byron Booth) there- 
 to as nrincipal, and his o^vn name as attorney 
 in fact. 
 
 Any acknowledgment taken outside 
 this state in accordance with the laws
 
 THE LAW OF REAL ESTATE 89 
 
 of the place where the acknowledgment 
 is made, shall be sufficient in this state 
 without further acknowledgment within 
 this state. 
 
 RECORDING DEED. 
 
 Effect of Recording or Non-Record- 
 ing. — Provision is made by the law of 
 the state for the recording or spreading 
 upon the public records of all deeds or 
 other instruments in any way affecting 
 real property, at the option of the inter- 
 ested parties. The recordation of a deed 
 is not compulsory. It is done for the 
 simple purpose of giving public notice 
 of the transaction, and of the interests 
 acquired thereby. 
 
 An unrecorded deed is valid between 
 the parties ; it has the same force and 
 effect as if recorded. An unrecorded 
 deed is void only as to creditors and 
 subsequent bona fide purchasers or en- 
 cumbrancers in good faith without no- 
 tice. That is to say, if Jones sells his 
 property to Brown, and Brown does not 
 record the deed, the creditors of Jones, 
 or subsequent purchasers from him, if 
 he were dishonest enough to sell the 
 property again, would have a valid lien 
 against the property if their judgments
 
 90 THE LAW OF REAL ESTATE 
 
 or deeds were recorded before Brown's; 
 provided, of course, they had no per- 
 sonal or actual knowledge of the fact 
 that the property had been previously 
 sold to the latter. In other words, so 
 long as the property stands on the pub- 
 lic records in Jones' name, the law pre- 
 sumes it to belong to him so far as all 
 other persons besides himself and his 
 grantee are concerned. 
 
 When Instrument Is Deemed to Be 
 Recorded. — An instrument is deemed to 
 be recorded when, after being duly ac- 
 knowledged, or proved and certified, it 
 is deposited in the recorder's office, with 
 the proper officer, for record. 
 
 POWER OF ATTORNEY. 
 
 Definition. — A power of attorney is 
 an authority given by one person to 
 another to transact business for him and 
 in his name. The extent of the author- 
 ity is limited, of course, by the language 
 of the instrument. It may be general 
 to transact all business, or special, to do 
 a certain thing. The person to whom 
 such an authority is given is called an 
 "attorney in fact." 
 
 Power of Attorney to Transfer Real 
 Property. — The owner of real property
 
 THE LAW OF REAL ESTATE 91 
 
 may authorize another person to find a 
 purchaser for it, and execute a con- 
 tract of sale thereof, by any form of 
 simple writing, but he can confer au- 
 thority to make the actual conveyance 
 for and in his name only by means of a 
 written power of attorney. The person 
 named in the instrument then has power 
 to do any lawful act which his princi- 
 pal could do, and it will be binding upon 
 the principal with as full force and ef- 
 fect as if done by the principal himself. 
 
 When an attorney in fact executes an 
 instrument conveying any estate in real 
 property he must, however, first sub- 
 scribe the name of his principal to the 
 instrument, followed by his own name 
 as attorney in fact. 
 
 Must Be in Writing. — Every power of 
 attorney must be in waiting. It can- 
 not be given verbally under any cir- 
 cumstances. 
 
 Form for Power of Attorney. — The 
 following form for the purpose of dele- 
 gating power to sell and transfer real 
 property to an attorney in fact is well 
 adapted to the purpose. It is designed 
 to be signed by both husband and wife, 
 which is generally required. Of course, 
 if it is not necessary to include the wife
 
 92 THE LAW OF REAL ESTATE 
 
 she can be left out of it. The price at 
 which the property is to be sold can be 
 inserted in the form, if desired, and the 
 attorney in fact would have to conform 
 thereto. 
 
 POWER OF ATTORNEY 
 
 BE IT KXOAVX that (Thomas Touilou) and 
 (Teresa Tomlon), his >vife, do, by these pres- 
 ents, constitute and appoint (Timothy Turpln) 
 their attorney In fact, -n-ith full authority to 
 sell and convey, and to receive the price thereof, 
 Tvithout reservation of community right, or of 
 any right T*hatsoever, the follOAving described 
 real property, to-wit: 
 
 (Describe property, same as in the deed). 
 
 And to execute a good and sufficient deed 
 thereof to the purchaser; and, generally, to 
 do all acts necessary for conveying as complete 
 a title thereto as the grantors of said power 
 could themselves convey; hereby covenanting 
 with all whom it may concern to ratify and 
 confirm all lawful acts done In pursuance of this 
 power as fully to all intents and purposes as 
 though done in their own proper persons. 
 
 (Signatures ) 
 
 Witness our hands this (fifteenth day of Jan- 
 uary, 1950). 
 
 Executed in the presence of: 
 
 (Xames of witnesses). 
 
 Recording Power of Attorney. — A 
 
 power of attorney to transfer real prop- 
 erty must be executed, acknowledged 
 and recorded, before the grant is, in 
 order to make the conveyance valid, and 
 also to keep the chain of title perfect 
 and in proper sequence. Otherwise 
 there would be no public evidence of 
 the right of the attorney in fact to make 
 the transfer.
 
 THE LAW OF REAL ESTATE 93 
 
 Revoking Power of Attorney. — When- 
 ever, by reason of the sale of the prop- 
 erty by the owner himself, or for any 
 other valid reason, it is desired to re- 
 voke a power of attorney, the only man- 
 ner in w^hich it can be done is by an- 
 other instrument formally withdrawing 
 or revoking such power, which must 
 also be acknowledged and recorded in 
 the same manner and in the same coun- 
 ty recorder's office in which the instru- 
 ment containing the power of attorney 
 was recorded. This is a very important 
 matter, which should always be attend- 
 ed to promptly when the occasion for it 
 arises; for until it is done the authority 
 of the attorney in fact remains in full 
 force and effect, which might lead to 
 serious complications if the property 
 had been otherwise disposed of with- 
 out his knowledge. 
 
 Form for Revoking Power of Attor- 
 ney. — The following form, easily adapt- 
 able to the circumstances, is about what 
 is required for the purpose : 
 
 BK IT KNOAVIV that, whereas rre (Thomas 
 Tonilon), and (Teresa Tomlon), his wife, did, by 
 warrant and povter of attorney, in writing, bear- 
 ingr date the (fifteenth day of January, 1950), 
 nial^e, constitute, and appoint (Timothy Tur- 
 pin) our true and lawful attorney for the pur- 
 poses and with the powers therein set forth, as 
 will more fully appear by reference thereto, or
 
 94 THE LAW OF REAL ESTATE 
 
 to the record therof, niade on the (date «'hen 
 recorded, if recorded, in boolc number , of 
 
 po>ver8 of attorney, page , in the office of 
 
 the county recorder of the county of ). 
 
 No'w, therefore, we the said g;rantors of the 
 power of attorney above mentioned, for divers 
 good causes and considerations us hereunto 
 moving, have revohied, countermanded, annulled, 
 and made void, and by these presents do revolve, 
 countermand, annul, and malice void the said 
 -tvarrant or power of attorney, and all power 
 and authority thereby given, or intended to be 
 given, to tlie said (Timothy Turpin). 
 
 ( Signatures ) 
 
 "Witness our hands this (date). 
 
 Executed in the presence of: 
 
 (Names of witnesses). 
 
 DEED BY MINOR. 
 
 When Void, When Voidable. — A mi- 
 nor cannot, under the age of eighteen, 
 make any valid conveyance of any inter- 
 est in real property. 
 
 The contract of a minor over the age 
 of eighteen is not void, but is voidable; 
 that is, he may disaffirm or repudiate 
 it at any time before majority, or with- 
 in a reasonable time thereafter. 
 
 WITNESSES. 
 
 Not Required, But Well to Have 
 Them. — The law does not require that 
 there shall be witnesses to a grant or 
 deed of real property, but it is well to 
 have at least one witness, for the pur- 
 pose of more conveniently proving the 
 instrument, if necessary. Better still to
 
 THE LAW OF REAL ESTATE 95 
 
 have two, so that either may testify, if 
 needed, should the other be unable to 
 appear. 
 
 SEALS. 
 
 Not Necessary to Use Them.— There 
 is no distinction in this state between 
 a sealed and an unsealed instrument, 
 and it is not necessary to use either a 
 wafer, or a pen scroll in any form, after 
 a signature to a grant or deed of real 
 property, to represent a seal. Neither is 
 it necessary to say, "Witness my hand 
 and seal"; ''Witness my hand" is suffi- 
 cient. 
 
 ITEMS 
 
 Useful Things to Remember. — The 
 
 grant should he clear and distinct, as 
 free from uncertainty as possible. When 
 the terms are doubtful, it is construed in 
 favor of the grantee and against the 
 grantor. 
 
 The grant must be complete before it 
 is delivered. Alterations or filling out of 
 the blanks after delivery, will not rem- 
 edy defects, or change the original con- 
 ditions. 
 
 The grantor should sign his name pre- 
 cisely as it is written in the body of the 
 grant.
 
 96 THE LAW OF REAL ESTATE 
 
 The grant takes effect only upon its 
 delivery by the grantor to the grantee. 
 
 Delivery is absolutely essential to the 
 validity of a grant. There is actual de- 
 livery when it is actually placed in the 
 hands of the grantee, and there is con- 
 structive delivery when it is placed under 
 control of the grantee, where he can 
 readily obtain actual possession. Either 
 is sufficient delivery. 
 
 A grant duly executed is presumed to 
 have been delivered at its date, and in 
 absence of proof to the contrary, such 
 delivery will be taken for granted. 
 
 Redelivering a grant to the grantor 
 or cancelling or destroying the same, 
 does not operate to re-transfer the title. 
 In all cases a new instrument must be 
 made out, transferring the title back to 
 the grantor, and properly signed and ac- 
 knowledged. 
 
 Unless the grant be delivered during 
 the lifetime of the grantor it will te of no 
 effect. But the delivery may be either 
 to the grantee himself, or to some third 
 person, with instructions to deliver the 
 instrumient to the g^rantee at some future 
 time. The latter is called an escrow.
 
 CHAPTER V. 
 
 LANDLORD AND TENANT 
 
 If one may judge by the great amount 
 of space devoted to this subject in the 
 law books, and in the reports of the de- 
 cisions of the courts, there are but few- 
 questions which have given more trouble 
 in the solving than those involved in the 
 legal relations between landlord and ten- 
 ant ; and it may further be said that the 
 general public, as a rule, is woefully de- 
 ficient in its understanding of the laws 
 regulating these relations. 
 
 This is not much to be wondered at 
 where there are so many modifications 
 and extensions of the general principles 
 underlying this relationship as are 
 to be found in different jurisdictions, and 
 so many contrariwise rulings thereon. 
 
 Therefore, perhaps no subject will be 
 of more practical importance to a large 
 number of people than this one concern- 
 ing landlord and tenant, their rights and 
 obligations under the law, the making 
 of leases and the manner or mode of
 
 98 THE LAW OF REAL ESTATE 
 
 using leased or hired property, since the 
 far greater portion of mankind lives in 
 or otherwise occupies the premises of 
 another. 
 
 In California the common law prac- 
 tice has been changed in many instances 
 by statute ; therefore in this article an 
 endeavor will be made to make as plain 
 as possible just what is the law and the 
 accepted practice in this state, irrespect- 
 ive of what it may be in other places. 
 
 WRITTEN AND VERBAL LEASES 
 
 Where Term is for More Than Year 
 Lease Must Be in Writing. — A lease for 
 a term LONGER than ONE YEAR 
 must be in writing, and of course must 
 be signed by all parties to it. 
 
 Assignment or Sublease of Written 
 Lease. — Where lease is in writing, as- 
 signment or sublease, or lessor's con- 
 sent to assign or sublease should be in 
 writing also. 
 
 Where Term Does Not Exceed One 
 Year Lease May Be Verbal. — A lease for 
 a period NOT EXCEEDING ONE 
 YEAR may be verbal, and it w^ill have 
 all the effect and be just as valid as if 
 in writing. 
 
 Assignment or Sublease of Verbal
 
 THE LAW OF REAL ESTATE 99 
 
 Lease. — Where lease is verbal, assign- 
 ment or sublease, or lessor's consent to 
 assign or sublease, may be verbal unless 
 otherwise provided. 
 
 LEASE BY AGENT 
 
 Authority Must Be in Writing. — A 
 
 lease made by the agent of the owner is 
 of as full force and effect as if made by 
 the owner himself; but in all cases where 
 the law requires the lease to be in writ- 
 ing the AGENT'S AUTHORITY to 
 execute the lease must also be IN 
 WRITING, and signed by the owner, 
 .or some one empowered to act for him. 
 Otherwise it will be invalid. 
 
 W^here the lease is a verbal one the 
 agent's authority to execute it may also 
 be verbal. 
 
 A mere undertaking upon the part of 
 the agent, however, to find a tenant for 
 the owner, where the instrument is to 
 be executed by the owner, need not be 
 in writing. 
 
 AVhere the agent is vested lawfully 
 with authority to make the lease, and 
 also with general power to conduct the 
 business connected with the hiring, no- 
 tices to the tenant to pay rent, or to
 
 100 THE LAW OF REAL ESTATE 
 
 quit, or otherwise, are also as valid as if 
 given by the owner. 
 
 Lease by Minor. — A minor cannot, un- 
 der the age of eighteen, make any valid 
 lease of any interest in real property. 
 
 The contract of a minor over the age 
 of eighteen is not void, but is voidable ; 
 that is, he may disaffirm or repudiate it 
 at any time before majority, or within 
 a reasonable time thereafter. 
 
 LIMIT OF TERM OF LEASE. 
 
 Of Agricultural Land. — No lease or 
 grant of land for agricultural or horticul- 
 tural purposes, in which shall be re- 
 served any rent or service of any kind, 
 shall be valid for a longer period than 
 FIFTEEN YEARS. 
 
 Of City Lots. — No lease or grant of 
 any town or city lot, in which shall be 
 reserved any rent or service of any kind, 
 shall be valid for a longer period than 
 NINETY-NINE YEARS. 
 
 Of Property of Municipality, Minor, 
 or Incompetent Person. — Provided, that 
 the property of any municipality, or any 
 minor or incompetent person, shall not 
 be leased for a longer period than TEN 
 YEARS.
 
 THE LAW OF REAL ESTATE 101 
 
 COMPUTING TERM OF HIRING. 
 
 Of Property Other Than Lodgings 
 and Dwelling Houses. — Unless the in- 
 tention is otherwise expressed at the 
 time of hiring, real property, other than 
 lodgings and dwelling houses, is pre- 
 sumed to be hired for one year, unless 
 possibly there is a local custom to the 
 contrary. 
 
 To illustrate : If a merchant rents a 
 store at so much per month, without 
 anything being said as to how long he 
 will retain possession of it, he will be 
 presumed to have taken it for one year, 
 and he w^ill be liable for the rent for 
 that period if the landlord chooses to 
 hold him to it. But if at the time of 
 hiring he states that he wdll take the 
 store from month to month, w^ithout any 
 definite number of months being speci- 
 fied, then he can be held liable for one 
 month only, if he gives the proper no- 
 tice of his intention to quit. 
 
 The same rule applies to any property 
 which is not to be used simply for resi- 
 dence purposes. 
 
 Of Lodgings and Dwelling Houses. — 
 iDwelling houses and lodgings are pre- 
 sumed to be, in the absence of any
 
 102 THE LAW OF REAL ESTATE 
 
 agreement to the contrary, taken for 
 such length of time as the parties adopt 
 for the estimation of the rent. 
 
 To illustrate : If the rent agreed upon 
 is so much per week, then the hiring is 
 presumed to be by the week ; if the rent 
 is so much per month, then the hiring is 
 by the month ; if so much per year, then 
 the hiring is by the year. In the ab- 
 sence of any agreement as to the length 
 of the period of the hiring, or of the 
 rent, or the manner in which it is to be 
 estimated, the hiring is presumed to be 
 by the month. 
 
 PAYMENT OF RENT. 
 
 Is Payable By Law at End of Period. 
 
 — In the absence of any agreement as 
 to when the rent is to be paid, the law 
 prescribes that it is not due until the 
 expiration of the period of hiring; that 
 is, at the end of the day, week, month, 
 or year for which the premises are pre- 
 sumed to be taken according to the rule 
 for estimating the period of hiring. 
 
 Local custom, however, regulates to a 
 large extent the manner of paying the 
 rent, and in case of disputes or actions 
 for the collection of the same, the courts 
 will take into account the customary
 
 THE LAW OF REAL ESTATE 103 
 
 practice in the community in which the 
 premises are situated. 
 
 The landlord has the right, notwith- 
 standing, to demand his rent IN AD- 
 VANCE when he stipulates it shall be 
 so paid at the time of the hiring, but not 
 otherwise. 
 
 All of which shows that this matter, 
 like all other provisions of the tenancy, 
 should be the subject of mutual under- 
 standing at the time of the leasing or 
 hiring. 
 
 DEFAULT IN RENT. 
 
 Lease May Be Forfeited For. — Where 
 the rent is not paid at the specified time 
 the landlord may declare the lease for- 
 feited if he so chooses. The method of 
 procedure and the necessary form for 
 notice will be found under the heading 
 of '^Forfeiture of Lease." 
 
 Or Landlord May Bring Action For. 
 — If the landlord does not desire to have 
 the lease declared forfeited he may, at 
 his option, bring an action for the col- 
 lection of the amount which is in de- 
 fault. 
 
 RAISING THE RENT. 
 When and How Landlord May Change
 
 104 THE LAW OF REAL ESTATE 
 
 Terms of Lease. — In all tenancies of 
 lands or buildings FROM T^IONTH TO 
 MONTH the landlord may, upon giv- 
 ing notice in writing at least THIRTY 
 DAYS before the expiration of the 
 month, raise the rent or otherwise 
 change the terms or conditions of the 
 lease, to take effect at the expiration of 
 the month. The notice must be given 
 at least full thirty days before the month 
 is up, and the time should be very care- 
 fully computed; otherwise it will be of 
 no avail. 
 
 If the tenant continues to occupy the 
 premises after receiving such notice he 
 is considered to have accepted its terms 
 and becomes bound by them : it is in 
 fact a new contract between the lessor 
 and the lessee. 
 
 The terms of a lease from month to 
 month may, of course, be changed by 
 the mutual consent of the parties with- 
 out such notice. 
 
 Several suits Avhich have been brought 
 in court would seem to indicate that 
 some people have an idea that the terms 
 of any lease may be changed by giving 
 the thirty days' notice, as aforesaid. 
 Such, however, is not the case. This 
 provision of the law applies only to
 
 THE LAW OF REAL ESTATE 105 
 
 temporary tenancies from month to 
 month, where there is no agreement as 
 to the terms for more than one month 
 at a time; therefore changing the terms 
 of a lease for a specified term is not 
 thereby authorized. 
 
 Neither could the rent be raised by 
 giving such notice where there is an 
 agreement that the tenant could have 
 the premises at a certain price as long 
 as he remained in possession. 
 
 Form for Notice of Raising the Rent. 
 — Any form of language will do, but the 
 following is explicit and definite for the 
 purpose : 
 
 NOTICE OF RAISING THE RENT. 
 To (name of tenant): 
 
 You are hereby notified that at the expirailion 
 of the mouth of your tenaney '»vh5eh oeeurw on 
 the (thirty-first day of July, IftoO), the terms 
 of the agrreenient under '»vhieh you oeeupy the 
 premises situate (liere deseribe the ureniJses 
 suffieiently to identify tlie ones meant in the 
 notiee; if in a eity, the street and nrnvber. or 
 tJie name of the building, ^vill do), under ten- 
 ancy from month to month, •»vill be ehansed as 
 follows: The monthly rent thereof will be 
 (forty) dollars per month, payable (monthly in 
 advance), on the (first) day of each and e^ery 
 month you continue to hold possession of the 
 said premises after the expiration of the month 
 of your tenancy aforesaid, instead of the sum 
 of (thirty) dollars per mouth heretofore i>aid 
 by you. 
 
 ( Signature ) 
 
 (Date )
 
 106 THE LAW OF REAL ESTATE 
 
 LETTING PARTS OF ROOMS. 
 
 Is Penalized By Statute. — One who 
 hires part of a room for a dwelling is 
 entitled to the whole of the room, not- 
 withstanding any agreement to the con- 
 trary ; and if a landlord lets a room as a 
 dwelling for more than one family, the 
 person to whom he first lets any part 
 of it is entitled to possession of the 
 whole room for the term agreed upon, 
 and if the landlord violates this regula- 
 tion, he is penalized to the extent that 
 every tenant in the building, under the 
 same landlord, is relieved from all obli- 
 gation to pay rent to him Avhile such 
 double letting of any room continues. 
 
 renevn^al of hiring. 
 
 Of Tenancy from Month to Month, or 
 from Year to Year. — The word "hiring" 
 as here used is intended to designate the 
 letting of premises for TEMPORARY 
 or UNSPECIFIED periods, as from 
 week to week, month to month, or year 
 to year; where there is no agreement 
 or lease for a fixed or definite time. 
 Where no time lease is given practically 
 all rental property is nowadays let upon 
 the month to month or year to year
 
 THE LAW OF REAL ESTATE 107 
 
 plan. Such tenancies are continuing 
 ones. That is, if the tenant rents prem- 
 ises by the week, or month, or year, he 
 is presumed by law to have taken them 
 INDEFIxNITELY; in other words, he 
 impliedly obligates himself to remain in 
 possession thereof until such time as 
 either of the parties gives notice to the 
 other of his intention to terminate the 
 hiring. 
 
 Therefore the tenant cannot lawfully 
 vacate until he has given the landlord 
 notice of his intention to do so, and the 
 landlord cannot put the tenant out until 
 he has given him notice to quit. And 
 until such notice of his intention to quit 
 has been given by the tenant he is lia- 
 ble for the rent, even if he has vacated 
 the premises. 
 
 RENEWAL OF LEASE. 
 
 Has Reference to Hiring for Specified 
 Period Only. — This heading refers only 
 to the renewal of leases where the hir- 
 ing is for a SPECIFIED OR DEFIN- 
 ITE TERM. The legal name for such 
 a lease is an "estate for years," com- 
 monly spoken of as a lease for years. 
 And although the expression would seem 
 to imply a term running into a number
 
 108 THE LAW OF REAL ESTATE 
 
 of years, such is not the case. A lease 
 for one year, or one month, or one week, 
 or even one day, is as much a lease for 
 years, or an estate for years, as a lease 
 for ten years would be. What is really 
 meant by the expression, then, is a hir- 
 ing for a fixed time, no matter how long 
 or how short, as distinguished from a 
 hiring for an indefinite or unfixed time; 
 in the former case the hiring expiring 
 at the end of the term thereof without 
 notice, while in the latter case the hiring 
 can be terminated only by giving no- 
 tice. Thus, a hiring FOR A IMONTPI 
 is for a fixed and definite time, for one 
 month only, and terminates at the end 
 thereof, without notice from the land- 
 lord to quit, or from the tenant of his 
 intention to quit ; but a hiring FROM 
 MONTH TO MONTH is for an indefi- 
 nite time, continuously, until interrupt- 
 ed or discontinued by notice by either 
 landlord or tenant. 
 
 There are two methods by which 
 leases for years are renewed, as follows: 
 
 1. By Express Covenant in the Lease. 
 ' — The terms of a lease for a specified 
 term may provide for its renewal at the 
 end of the term at the option of the 
 lessee. The original lease need not defi-
 
 THE LAW OF REAL ESTATE 109 
 
 nitely fix all the terms of the new lease, 
 so long as it furnishes definite methods 
 of arriving at the intention of the parties 
 when the time comes to renew, as by 
 valuation, arbitration, or appraisal. It 
 should, however, be precise as to the 
 term, and as much so as to the other 
 provisions as circumstances will admit. 
 
 The lessee must give the lessor notice 
 that he desires to exercise his option to 
 renew the lease BEFORE THE ORIG- 
 INAL TERM EXPIRES, or he will for- 
 feit all his rights under the option; and 
 unless the lessee does exercise his right 
 by giving notice of his desire to renew, 
 he cannot be held for an additional term. 
 Thus the option is not binding on either 
 party until it is exercised. 
 
 The lease may, of course, provide 
 HOW and WHEN the notice of the ten- 
 ant's desire to renew shall be given, and 
 he will be required to conform to its 
 terms in that respect 
 
 2. By Holding Over of Tenant.— 
 Where the tenant in possession of prem- 
 ises on a lease or hiring for a specified 
 time holds over or continues in possses- 
 ion after the expiration of his term with- 
 out any new agreement as to how long 
 he shall remain, and the lessor accepts
 
 110 THE LAW OF REAL ESTATE 
 
 rent from him, he will be presumed to 
 be staying on UNDER THE SAME 
 TERMS AND CONDITIONS AS BE- 
 FORE, the payment and acceptance of 
 the rent evidencing the implied agree- 
 ment between the parties to that effect; 
 therefore the law presumes the hiring to 
 be renewed, subject to and according to 
 all the provisions of the lease which has 
 expired, except as to the length of the 
 term. That is, the term for which the 
 lease is presumed to be renewed is limit- 
 ed to ONE MONTH ONLY when the 
 rent is payable monthly; to ONE YEAR 
 when the rent is payable quarterly, half- 
 yearly, or yearly. But in no case is the 
 lease presumed to be renewed for more 
 than one year at a time. 
 
 In other words, when the lessee holds 
 over, with the permission, either express 
 or implied, of the lessor, after his term 
 has expired, he becomes a tenant either 
 from month to month or from year to 
 year, according to the manner of paying 
 the rent. The tenancy thus becomes 
 subject to termination at the will of 
 either party at the expiration of each re- 
 curring monthly or yearly period by giv- 
 ing thirty days' notice as explained in
 
 THE LAW OF REAL ESTATE 111 
 
 detail under the heading of "Termination 
 of Hiring.'' 
 
 Landlord Must Either Accept Hold- 
 over as Tenant or Put Him Out. — It 
 therefore necessarily follows that where 
 the tenant holds over as aforesaid the 
 landlord must either treat him as a ten- 
 ant or as a trespasser; he must either 
 tell him peremptorily to get out or else 
 acknowledge him as a tenant under the 
 same terms as before. And where the 
 landlord accepts the rent (or by leaving 
 the tenant in possession thereby implies 
 that he will accept it when due), it is 
 sufficient acknowledgment of his intent 
 to renew the tenancy as presumed by 
 law, and he is bound thereby. 
 
 The tenant holding over has, however, 
 no such election as to his status; his 
 mere continuance in possession for even 
 a day over his term fixes him as a tenant 
 for another month or year, as the case 
 may be, if the landlord thinks proper to 
 insist upon it. He should therefore va- 
 cate the premises by the end of the last 
 day of his term if he does not wish to be 
 held liable for another term. 
 
 When Holdover Becomes Trespasser. 
 — But where the lessee for a specified 
 term holds over AGAINST THE CON-
 
 112 THE LAVv^ OF REAL ESTATE 
 
 SENT of the lessor he is then simply a 
 trespasser without any rights in the 
 premises whatsoever. In such case he is 
 not entitled to thirty days notice to va- 
 cate, but may be treated as a trespasser, 
 subject to an action for ejectment, or for 
 unlawful detainer, at the option of the 
 lessor. 
 
 Exception as to Renewal of Lease of 
 Agricultural Lands. — \\ here the lessee 
 of agricultural lands has remained in 
 possession thereof for more than SIXTY 
 DAYS after the expiration of his term, 
 without notice to quit or demand for 
 possession being served upon him, he 
 shall be deemed to be holding the prem- 
 ises by permission of the lessor, and shall 
 be entitled to remain in possession for 
 a FULL YEAR, under the terms of his 
 lease. 
 
 Likewise, the tenant, by holding over 
 for more than the sixty days aforesaid, 
 shall be construed as thereby CON- 
 SENTING to take the property for an- 
 other year, and is bound for that time. 
 
 Best Way to Avoid Disagreements. — 
 The best way to avoid any disagreement 
 or misunderstanding as to how long the 
 lease is deemed to be renewed for when 
 the tenant holds over his term is to in-
 
 THE LAW OF REAL ESTATE 113 
 
 sert a clause like this in the lease, which 
 is now generally done : 
 
 ''If the said party of the second part 
 shall hold over said term, with the con- 
 sent, express or implied, of the said 
 party of the first part, such holding shall 
 be construed to be a tenancy only from 
 month to month." 
 
 With such a clause in the lease there 
 can be no argument, and the tenancy 
 can be terminated as before stated, at 
 any time at the will of either party by 
 giving the required thirty days notice. 
 
 TERMINATION OF LEASE 
 
 Four Causes Specified. — The code speci- 
 fies four causes which have the effect of 
 terminating the hiring arbitrarily without 
 recourse to legal process, namely : 
 
 1. By Ending of Term. — A lease ex- 
 pires automatically at the end of its 
 term, where the term is fixed and certain, 
 and agreed upon. 
 
 2. By Mutual Consent and Surrender. 
 — A hiring which is either from month 
 ti month or for a fixed period may be 
 cancelled at any time by mutml consent 
 of the parties and surrender of the prem- 
 ises to the lessor. 
 
 3. When Lessee Acquires Paramount
 
 114 THE LAW OF REAL ESTATE 
 
 Title. — A lease is extinguished when the 
 lessee acquires a title which is superior 
 to that of the lessor, as by purchase of 
 the leased premises; since, being then 
 the owner, it would not avail him any- 
 thing to pay rent to himself. 
 
 4. By Destruction of Premises. — The 
 complete destruction of the premises ac- 
 cidentally by the elements or by the act 
 of God cancels completely the lease, and 
 the relations of landlord and tenant 
 which existed between the parties are at 
 an end, in the absence of any agreement 
 to the contrary. 
 
 Where buildings upon leased premises 
 are destroyed by fire neither the land- 
 lord nor the tenant are under any obliga- 
 tions to restore them ; and if the land- 
 lord should restore them the tenant has 
 no claim to occupy them because of his 
 previous lease. 
 
 These facts plainly show the necessity 
 of incorporating^ the desires and inten- 
 tions of the parties in the contract. 
 
 HOW LEASE MAY BE TERMI- 
 NATED 
 
 Optional With the Parties. — The sec- 
 tions under the preceding heading show 
 how a lease is terminated bv law with-
 
 THE LAW OF REAL ESTATE 115 
 
 out the will or acquiescence of the par- 
 ties. Under this heading is shown the 
 circumstances under which the lease is 
 not necessarily terminated but MAY BE 
 TERMINATED at the will or option of 
 cither the lessor or the lessee. 
 
 L Upon Violation of Obligations by 
 Lessor. — The hiring may be terminated 
 when the lessor does not, within a reas- 
 onable time after request, FULFILL 
 HIS OBLIGATION to secure the tenant 
 in his quiet possession and enjoyment of 
 the premises, or put them in good con- 
 dition, or repair them, when the obliga- 
 tion rests upon him to do so. 
 
 2. Upon Partial Destruction of the 
 Premises. — The hirer of a thing may ter- 
 minate the hiring before the end of the 
 term agreed upon when the GREATER 
 PART of the thing hired, or that part 
 which was, and which the latter had, at 
 the time of the hiring, reason to believe 
 was, the MATERIAL INDUCEMENT 
 to the hirer to enter into the contract, 
 perishes from any other cause than the 
 want of ordinary care of the hirer. 
 
 3. Upon Death of Either Party.— A 
 lease for an UNSPECIFIED term is 
 NOT terminated by the death of either 
 party, but it CAN BE BY GIVING
 
 116 THE LAW OF REAL ESTATE 
 
 NOTICE to the survivor of the death of 
 the other. Such notice must state the 
 desire of the representatives of the de- 
 ceased that the lease be terminated. 
 
 But a lease for a SPECIFIED term is 
 NOT TERMINATED BY THE 
 DEATH OF EITHER PARTY; the 
 contract passes on to the executors or 
 administrators of the deceased as an 
 a>?ct of his personal estate. 
 
 4. — Upon Incapacity to Contract. — A 
 lease for an unspecified term can also be 
 terminated upon the incapacity to con- 
 tract of either party, by reason of insan- 
 ity or other cause, upon giving notice to 
 the other party of the desire to ter- 
 minate. 
 
 5.— Upon Default in the Rent.— The 
 landlord has the right to declare the 
 lease forfeited whenever the rent is not 
 paid according to the terms of the con- 
 tract, or as the law provides it shall be 
 paid in the absence of any agreement. 
 
 6. Upon Violation of Covenant of 
 Use by Lessee. — AVhere premises are let 
 to be used for a PARTICULAR PUR- 
 POSE the hirer must not use them for 
 any OTHER purpose; if he does, he does 
 so at his peril. He is liable to the lessor 
 for all damages resulting from such un-
 
 THE LAW OF REAL ESTATE 117 
 
 lawful use, or the lessor may treat the 
 lease as thereby rescinded. And if in 
 consequence of unlawful use the prem- 
 ises are destroyed by fire, the tenant 
 could very probably be held for damages 
 for such destruction. 
 
 Liability for Rent Where Lease is 
 Terminated. — Where a lease is terminat- 
 ed before its expiration, or by eviction, 
 the lessee must pay the due proportion 
 of the rental for such use as he has had 
 of the premises. 
 
 TERMINATING HIRING 
 
 Landlord's Notice to Quit. — If the hir- 
 ing is by the week the landlord must 
 give the tenant a week's notice to quit; 
 if by the month or by the year, thirty 
 days notice. The notice must in all 
 cases be IN WRITING. 
 
 There is much misunderstanding as to 
 how the time of the required notice is to 
 be computed, and an endeavor will be 
 made to make it plain. 
 
 The tenant cannot be put out in the 
 middle of his term, therefore the notice 
 must be served the full number of days 
 required prior to the expiration of his 
 term. 
 
 To illustrate : The tenant rents a
 
 118 THE LAW OF REAL ESTATE 
 
 house or a store by the month, his rent 
 beginning on the first day. The landlord 
 desires to regain possession, say on the 
 first of August. He must therefore give 
 the tenant full thirty days previous no- 
 tice to quit not later than the 31st of 
 July. In figuring the number of days 
 the first day (the day on which the no- 
 tice is served) is excluded and the last 
 day is included, unless it be a Sunday or 
 a holiday, in which case the next busi- 
 ness day is included. Therefore the no- 
 tice to quit could be served not later 
 than the first of July in order to give the 
 required thirty days notice so as to be- 
 come effective on the 31st. It must be 
 understood that the number of days be- 
 gins to run from the time of the actual 
 service of the notice, and not from the 
 date thereof. 
 
 Now, suppose the landlord neglected 
 to serve the notice until the second of 
 July. The result would be that the ten- 
 ant would be given only twenty-nine 
 days notice, and the order to vacate 
 would therefore not become eflPective on 
 the 31st of July, as intended, because it 
 lacked one day of the full thirty days 
 required by statute ; the eflfect being that 
 the tenant could not be ejected until a
 
 THE LAW OF REAL ESTATE 119 
 
 new notice of thirty days had been 
 served upon him. 
 
 This illustration shows the necessity 
 of accurate computation of the number 
 of days required to be given before the 
 notice takes effect, paying due regard to 
 the short months, leap year, Sundays 
 and holidays. A few extra days notice 
 won't hurt, and may often save much 
 annoyance. 
 
 Form for Landlord's Notice to Quit. — 
 The notice to quit need not be in any 
 particular language, but the following 
 form is legally accurate, where the ten- 
 ancy is from month to month, and is re- 
 commended for the purpose. If the ten- 
 ancy is by the week instead of monthly 
 change the wording accordingly so as to 
 m.ake it a week's notice. 
 
 LANDLORD'S NOTICE TO QUIT. 
 
 To (name of tenant): 
 
 Yon are hereby required to quit and deliver 
 np to me tlie po^seHsion of the premises noTir 
 !ie!d and occupied by you, situated in (here In- 
 sert name of state, county, city or town, street 
 and number, or other description sufficient to 
 id«'ntlfy positively the premises meant), at the 
 expiration of the month of your monthly ten- 
 ancy of said premises Trhich commences on the 
 (first day of July, 19.'>0), and ending on the 
 (thirty-first day of July, Ift.'O). This is intended 
 as thirty days notice to quit, for the purpose of 
 terminatiui^ your tenancy as aforesaid. 
 
 (Date ) (Signature ) 
 
 If the tenancy is from year to year
 
 120 THE LAW OF REAL ESTATE 
 
 change the wording of the form to read 
 like this : 
 
 "You are hereby required to quit and deliver 
 up to me the possession of the premises no-»v 
 held and occupied by you, situated in (here in- 
 sert the description of the property), at the 
 expiration of your yearly tenancy of said prem- 
 ises >vhich commences on the (first day of July, 
 1950), and ending on the (thirty-first day of 
 July, 1951). This is intended as thirty days 
 notice to quit for the purpose of terminating 
 your tenancy as aforesaid." 
 
 Tenant's Notice of Intention to Quit. — 
 The tenant's notice of his intention to 
 vacate must be computed and served in 
 just the same manner as the landlord's 
 notice to quit, as illustrated above. If 
 the full week's or thirty days notice as 
 the case may be is not given before the 
 expiration of his week, or month, or year 
 he is liable to be held for an extra term's 
 rent, whether he vacates or not. 
 
 Form for Tenant's Notice of Intention 
 to Quit. — The form which follows is for 
 use where the tenant hires from month 
 to month. If the tenancy is by the week, 
 or year, change the wording to read ac- 
 cordingly. 
 
 TENANT'S NOTICE OP INTENTION TO QUIT. 
 
 To (name of landlord): 
 
 Please take notice that I shall quit posses- 
 sion and deliver up the premises now held and 
 occupied by me, situated at (here describe the 
 location sufllciently to identify the premises 
 meant), at the end of the monthly period of 
 my tenancy which terminates on the (thirti^tli
 
 THE LAW OF REAL ESTATE 121 
 
 day of September, 1050), as I intend to remove 
 therefrom. This notice Is given as required by 
 law for the purpose of terminating the said 
 tenancy. 
 
 (Date ) (Signature ) 
 
 Where Hiring is From Year to Year. 
 
 — Where the hiring is from year to year, 
 but for no specified number of years, or 
 where the law presumes the hiring to be 
 from year to year, 30 days notice to quit, 
 or of intention to quit, is all that is re- 
 quired, but such notice must be served at 
 least full thirty days before the expira- 
 tion of the year. 
 
 Landlord Entitled to Re-enter After 
 Thirty Days. — At the expiration of the 
 thirty days notice, legally given as 
 above, the landlord is entitled to re-enter 
 the premises and take possession again. 
 If he meets with opposition and resist- 
 ance he can proceed according to law to 
 recover the property and enforce his 
 claim for any damages he may incur by 
 reason of such opposition and resist- 
 ance. 
 
 The Thirty Days Notice is Imperative 
 Under All Circumstances. — Where the 
 tenancy is of the temporary character as 
 above described, the thirty days notice to 
 quit cannot be dispensed with under any 
 circumstances, no matter what the land-
 
 122 THE LAW OF REAL ESTATE 
 
 lord's reason may be for putting the ten- 
 ant out, whether for default in the rent, 
 or violation of any other of the provi- 
 sions of the agreement, or for any cause 
 whatsoever. 
 
 Waiving of Notice. — Either notice to 
 quit or notice of intent to quit may be 
 waived by the parties to the hiring; or 
 the length of the notice required by law 
 may be shortened or extended by their 
 mutual agreement. 
 
 Holding Over by Tenant From Month 
 to Month or Year to Year. — After the 
 expiration of the thirty days notice as 
 prescribed by law, the tenant, if he holds 
 over and refuses to give up the premises 
 peacefully, is guilty of unlawful detainer. 
 The landlord may then and without fur- 
 ther notice bring an action of ejectment 
 against him, or he may instead bring an 
 action for unlawful detainer and recov- 
 ery of possession, which is the usual 
 method. But before he can bring the lat- 
 ter action he must serve the tenant with 
 a FURTHER NOTICE TO GIVE UP 
 POSSESSION OF THE PREMISES 
 AT THE EXPIRATION OF THREE 
 iDAYS, in writing. If the tenant then 
 still refuses to vacate the landlord may 
 proceed at once with his action for re-
 
 THE LAW OF REAL ESTATE 123 
 
 covery both of the premises and all pen- 
 alties and damages allowed him by law. 
 Same as to Tenant and Subtenant. — 
 All the above provisions apply w^ith 
 equal force to tenant and subtenant. The 
 tenant may evict the subtenant in the 
 same manner, and the subtenant may be 
 required to give like notice to the orig- 
 inal tenant from whom he hires. 
 
 PENALTIES AND DAMAGES 
 
 Penalty for Holding Over. — If any 
 
 tenant, or any person in C(jllusion with 
 the tenant, continues in possession of 
 any lands or tenements after proper no- 
 tice has been served upon him to quit, 
 or demand made to perform any coven- 
 ants of the lease which he may have vio- 
 lated, or else give up possession, he must 
 pay to the landlord treble rent during 
 the time he thus unlawfully holds over. 
 
 Penalty for Failure to Quit. — If any 
 tenant gives notice of his intention to 
 quit the premises, and does not quit and 
 deliver up possession at tlie time speci- 
 fied in the notice, he must pay to the 
 landlord treble rent durini:; the time he 
 continues in possession thereafter. 
 
 Liability of Lessor for Breach of 
 Lease. — Violation of the terms of the
 
 124 THE LAW OF REAL ESTATE 
 
 lease by the lessor entitles the lessee to 
 bring an action against him to recover 
 whatever damages he may sustain by 
 reason of such breach. 
 
 Liability of Tenant for Breach of 
 Lease. — Violation of the terms of the 
 lease by the lessee entitles the lessor to 
 bring an action against him for what- 
 ever damages he may sustain by reason 
 of such breach. 
 
 DEMAND FOR POSSESSION 
 
 No Notice Necessary Where Tenancy 
 is For Specified Term. — Expiration of 
 the time stated in a lease for a specified 
 term terminates the lease automatically 
 without notice. The lessee is supposed 
 to know when his term is up, and there- 
 fore NO NOTICE TO QUIT IS 
 NECESSARY. Neither is any notice of 
 the tenant's intention to quit necessary. 
 The tenancy is ended without further ado, 
 and that is all there is to it. It is the 
 tenant's duty to give up possession at 
 once, on the last day, unless he has made 
 arrangements for renewal. If he holds 
 over for even one day he takes a chance 
 of being held for the rent for another 
 term, or of being ejected and held liable 
 for damages.
 
 THE LAW OF REAL ESTATE 125 
 
 It is well, however, where the land- 
 lord does not intend to renew the lease 
 after its expiration, to give the tenant 
 notice to that effect. Such notice not 
 only serves to make known the lessor's 
 intentions, but also makes the tenant 
 liable for treble rents from the moment 
 the term ends, if he holds over, without 
 giving him further notice. 
 
 A further notice of three days, com- 
 manding the tenant to vacate, is neces- 
 sary, though, before the lessor can bring 
 an action for unlawful detainer. 
 
 Form for Notice Demanding Posses- 
 sion at End of Term. — The form which 
 follows is useful for notifying the lessee 
 that the landlord requires possession of 
 the leased premises at the end of the 
 term, where there is no contract of re- 
 newal. It may be served upon the lessee 
 at any time, unless a certain number of 
 days notice is specified in the lease: 
 
 DE^IAND FOR SURRENDER OF POSSESSION 
 AT END OF TERM. 
 
 To (name of tenant) : 
 
 You are hereby notified that on the (thirty- 
 first day of July, 1951), your lease or tenancy 
 of the premises you no^v hold possession of, 
 situate (here describe property and location 
 definitely) will terminate and end, and you are 
 requested and required to deliver possession 
 thereof to the undersigned (or to some other 
 person named) on said thirty-first day of July, 
 lOol. 
 
 (Date ) (Sigrnature )
 
 126 THE LAW OF REAL ESTATE 
 
 SURRENDER OF LEASE 
 By Mutual Consent. — The hiring of 
 property may be terminated at any time 
 upon such terms and conditions as ma}^ 
 be agreed upon by the mutual consent of 
 the parties, made in good faith, follovved 
 by the surrender and vacation of the 
 premises. The latter is absolutely nec- 
 essary in order to avoid charges of fraud. 
 \\'hen the surrender is made the fact 
 should always be endorsed on the lease, 
 or a separate contract drawn embracing 
 the facts. 
 
 FORFEITURE OF LEASE 
 For Default in Rent. — Where the ten- 
 ant under a lease for a specified term is 
 behind in his rent (default is the legal 
 term), the landlord may serve him with 
 THREE DAYS XOTICE TO PAY OR 
 QUIT THE PREMISES. If the tenant 
 does not then pay, or give up possession, 
 the lease is thereby terminated, and the 
 tenant is guilty of unlaw^ful detainer. 
 The landlord is then at liberty to com- 
 mence an action for recovery of the 
 premises whenever he shall see fit, and 
 also for adequate damages. The no<"ice 
 may be served at any time within one 
 year after the rent becomes due.
 
 THE LAW OF REAL ESTATE 127 
 
 Form for Notice to Pay Rent. — The 
 
 following- form is a proper notice to the 
 lessee when he is in default with the 
 rent. Care should always be taken to 
 state in the notice the amount of rent 
 due, and also to demand possession if it 
 is not paid. The law does not say the 
 notice must state that the rent must be 
 paid WITHIN three days, but that 
 THREE DAYS NOTICE must be given 
 the lessee to pay up or quit ; which is 
 quite a difference which probably but 
 few understand. 
 
 NOTICE TO PAY RENT OR SURRENDER 
 POSSESSION 
 
 To (name of tenant): 
 
 You are hereby required to pay the rent of 
 the premises situate (here deseribe the location 
 and property definitely), and Tvhieh you now 
 hold possession of, amounting to (eiejhty-five) 
 dollars, being the amount due and ovfing to me 
 by you for (one) month's rent, from the (first 
 day of July, 1050, to the thirty-first day of July, 
 1950), or deliver up the possession of the said 
 premises to me (or to some agent named, vrho 
 is hereby authorized to receive possession there- 
 of, or of the rent due and unpaid by you). If 
 you fail to comply Trith this notice I shall in- 
 stitiJte leaal proceedings against you to recover 
 possession of said premises, ^vith treble rents. 
 
 (Date ) (Signature ) 
 
 For Violation of Covenants. — V/here 
 the tenant violates or fails to perform 
 any of the covenants or provisions of the 
 lease the landlord mav serve h^m with 
 THREE DAYS NOTICE to perform or
 
 128 THE LAW OF REAL ESTATE 
 
 comply with them or quit. If the ten- 
 ant does not do so within a reasonable 
 time, his failure to do so terminates the 
 lease, and he is from that time on a tres- 
 passer guilty of unlawful detainer. The 
 landlord may bring an action for the 
 same without further notice, and may in- 
 clude his claim for whatever damages he 
 may sustain. 
 
 Form for Landlord's Notice to Perform 
 Covenant:. — The following furm can be 
 varied to suit the case whenever it is 
 necessary to give notice to the tenant 
 to comply with the terms of any of the 
 covenants of the lease which he may 
 have violated. Probably the best way is 
 to copy into the notice the exact words 
 of the covenant which the lessor claims 
 is violated as they are written in the 
 lease. 
 
 NOTICE TO PERFORM COVENANTS, OR GIVE 
 UP POSSESSION 
 
 To (name of tenant): 
 
 You are hereby notified that in the lease 
 under which you hold possession of the premises 
 situate (describe the location definitely), you 
 covenanted and agreed to (copy In here the 
 exact words of the clause of the lease which 
 the tenant has failed to perform), and which 
 ai^reement you have failed to keep. Xow this 
 is to notify you that you are required to (state 
 what the tenant is required to do), as yon 
 agreed to do as aforesaid, or deliver up posse*-
 
 THE LAW OF REAL ESTATE 129 
 
 sion of the said premises to the undersigned, or 
 I shall beg^in le.cral procecdinjUTS against you to 
 recover posse^isiou of the same. 
 
 ( Date ) (Signature ) 
 
 Notices Must Be Served Upon Sub- 
 tenants Also. — The notices provided for 
 above must be served not only upon the 
 LESSEE but also upon any SUBTEN- 
 ANTS in actual possession of the prem- 
 ises, 
 
 Betw^een Tenant and Subtenant. — The 
 
 orig-inal tenant may take the same pro- 
 ceedings against a subtenant. 
 
 Any Person Interested May Save 
 Lease From Forfeiture. — Within 
 THREE DAYS after service of any of 
 the notices mentioned above ANY PER- 
 SON who is interested in the continu- 
 ance of the lease may pay the rent, or 
 comply with the other demands made, 
 and thus save the lease from forfeiture. 
 
 Forfeiture of Lease for Assigning, 
 Subletting, or Committing Waste. — Any 
 tenant or subtenant assigning", or sublet- 
 ting, or committing waste upon the 
 premises, contrary to the provisions of 
 his lease, thereby terminates the lease, 
 and the landlord shall, upon service of 
 THREE DAYS NOTICE TO QUIT 
 upon the person or persons in possession
 
 130 THE LAW OF REAL ESTATE 
 
 be entitled to restitution to him of such 
 premises. 
 
 UNLAWFUL DETAINER 
 
 Definition. — Unlawful detainer is the 
 detaining or holding possession unlaw- 
 fully of property belonging to another. 
 
 When Tenant is Guilty of. — The ten- 
 ant of real property is guilty of unlawful 
 detainer when he continues in possession 
 thereof, either in person or by subtenant, 
 after the expiration of his term without 
 the permission of the landlord. 
 
 2. When he remains in possession 
 after default in the rent and proper de- 
 mand to pay the same. 
 
 3. When he remains in possession 
 after violation of any of the covenants 
 of the lease and proper demand to rem- 
 edy the same. 
 
 Actions for Unlawful Detainer. — No 
 
 action for unlawful detainer can be com- 
 menced until the e^uiltv person has been 
 served with THREE DAYS NOTICE of 
 the intention to bring the action. This 
 is explained further and forms for no- 
 tices given under the heading of "For- 
 feiture of Lease."
 
 THE LAW OF REAL ESTATE 131 
 
 MANNER OF SERVING NOTICES 
 
 Conformity With the Law Very Nec- 
 essary. — Where it is necessary to serve 
 any notice upon any tenant or lessee 
 great care should be used in making the 
 service so as to conform strictly to the 
 law, for if the service is faulty in any 
 respect it may nullify the effect of the 
 notice. 
 
 What the Lav^ Requires. — The notice 
 to quit, or any other of the notices re- 
 quired by the provisions of this article, 
 may be served either by delivering a 
 copy to the tenant personally; or, if he 
 is absent from his usual place of resi- 
 dence or business, by leaving a copy of 
 the notice at either place with some per- 
 son of suitable age and discretion, and 
 sending a copy through the mail, ad- 
 dressed to the tenant at his place of resi- 
 dence; or, if such place of residence and 
 business cannot be ascertained, or a per- 
 son of suitable age and discretion cannot 
 be found, then by affixing a copy in a 
 conspicuous place on the property, and 
 also delivering a copy to a person there 
 residing, if such person can be found ; 
 and also sending a copy through the
 
 132 THE LAW OF REAL ESTATE 
 
 mail addressed to the tenant at the place 
 where the property is situated. 
 
 Service Upon Subtenant. — Service up- 
 on a subtenant, either by the lessor or 
 by the original lessee, may be made in 
 the same manner. 
 
 Caution. — Always being careful to al- 
 low the full number of days to intervene 
 between the time of the actual service 
 and when the notice is to take effect. 
 
 USE OF FORCE 
 
 Not Permissible. — The use of force in 
 the ejectment or eviction of tenants after 
 the right has accrued to the landlord to 
 re-enter and take possession of the prem- 
 ises is not permissible in this state. It 
 can only be done by due process of law, 
 and by the proper officer of the court. 
 
 JURISDICTION OF COURTS 
 
 Of Justice Court. — Actions for unlaw- 
 ful detainer may be brought in the Jus- 
 tice Court of the township where the 
 property is situated where the whole 
 amount of the damages claimed against 
 the tenant does not exceed the sum of 
 two hundred dollars, or the rental value 
 of the premises does not exceed twenty- 
 five dollars per month.
 
 THE LAW OF REAL ESTATE 133 
 
 Of Superior Court. — Actions for un- 
 lawful detainer as specified in the above 
 paragraph may be brought in the Justice 
 Court, or they may be brought in the 
 Superior Court of the county in which 
 the property is situated, at the option of 
 the plaintiff. All actions involving 
 amounts greater than those specified can 
 be brought in the Superior Court only. 
 
 DUTY OF TENANT TO NOTIFY 
 LANDLORD 
 When Liable for Damages for Failure 
 
 To. — Every tenant who receives notice 
 of any proceeding to recover the real 
 property occupied by him, or its posses- 
 sion, must inform his landlord imme- 
 diately, and must deliver to his landlord 
 the notice he received, if in writing. And 
 if the tenant fails to inform his landlord 
 of any such notice, or to deliver the no- 
 tice to him if in writing, he will be liable 
 to the landlord for all damages which he 
 may sustain by reason of such failure. 
 
 CHANGE OF OWNERSHIP 
 
 Lessee Not Affected By Transfer of 
 Title. — The transfer of the title to the 
 leased premises does not in any way af- 
 fect, change, or modify the lease. The
 
 134 THE LAW OF REAL ESTATE 
 
 grantee simply takes the place of his 
 grantor, and becomes the landlord of the 
 tenant. 
 
 The new landlord therefore has all the 
 rights of the original lessor against the 
 tenant, and the tenant has the same 
 rights against the new landlord as he had 
 against the original lessor. 
 
 PAYMENT OF TAXES 
 
 Is Subject to Agreement. — In the ab- 
 sence of any agreement to the contrary 
 the law imposes the burden of paying 
 the taxes and assessments upon the own- 
 er, but this, like most other matters, may 
 be the subject of contract between the 
 owner and the tenant, the latter assum- 
 ing the liability if he chooses so to do. 
 
 REMOVAL OF FIXTURES 
 
 Right of Tenant to Remove. — A ten- 
 ant may remove from the leased prem- 
 ises, at any time DURING THE CON- 
 TINUANCE of his term, anything af- 
 fixed thereto for purposes of trade, man- 
 ufacture, ornament, or domestic use, if 
 the removal can be effected without in- 
 jury to the premises, unless the thing 
 has. by the manner in which it is affixed, 
 become an integral part of the premises.
 
 THE LAW OF REAL ESTATE 135 
 
 What Are Fixtures. — AYhat things 
 constitute fixtures, and when they are 
 removable and when irremovable, are ex- 
 plained in detail in the chapter on real 
 property, herein, to which the reader is 
 referred. 
 
 Must Be Removed Before End of 
 Term. — The tenant must remove his fix- 
 tures from the leased premises BEFORE 
 THE END OF THE LAST DAY of his 
 term, or he forfeits his right to do so. 
 If he leaves them as much as one day 
 without permission they become the 
 j>roperty of the landlord. If, however, 
 the lease says they may be removed at 
 the end of the term, it will be implied 
 that the tenant has a reasonable time 
 thereafter in which to remove them; but 
 he must use diligence, and not sleep on 
 his rights, if he would avoid possible dif- 
 ficulties. 
 
 Tenant Cannot Remove Fixtures 
 Where Lease is Forfeited. — It seems to 
 be a well-settled rule, as evidenced by 
 decisions of the courts, that where the 
 lease is forfeited for nonpayment of rent 
 or for violation of its covenants, the ten- 
 ant cannot then remove his fixtures. 
 They pass into the possession of the les- 
 sor.
 
 136 THE LAW OF REAL ESTATE 
 
 REPAIRS 
 
 Lessor Must Put Dwelling in Inhabit- 
 able Condition. — The lessor of a building 
 intended for the OCCUPATION OF 
 HUMAN BEINGS must, in the absence 
 of any agreement to the contrary, put it 
 into condition fit for such occupation, 
 and repair all subsequent dilapidations 
 thereof which render it untenantable, ex- 
 cept all such deteriorations and damages 
 as are caused by the negligence and want 
 of care of the tenant ; in the latter cir- 
 cumstances, the lessee must make the re- 
 pairs himself. 
 
 Lessee May Make Repairs if Owner 
 Fails to Do So, or May Vacate Premises. 
 
 — If. within a reasonable time after the 
 lessor has been notified of the necessity 
 for repairs which it is his duty to make, 
 he neglects to make them, the lessee 
 may make them himself, up to the 
 amount of ONE ^lONTH'S RENT, and 
 deduct the same from the rent; or, he 
 may vacate the premises and surrender 
 the lease, in which case he is discharged 
 from further payment of rent, or per- 
 formance of other conditions of the con- 
 tract. 
 
 In several cases the courts have de-
 
 THE LAW OF REAL ESTATE 137 
 
 cided that under no circumstances can 
 the tenant make any repairs himself until 
 after he has notified the landlord to do 
 so, if he wishes to hold the latter to pay 
 for them ; neither can he vacate the 
 premises because of their condition until 
 he has notified the landlord to improve 
 them and he fails to do so. 
 
 Tenant May Contract to Make the Re- 
 pairs. — The above paragraphs shall in 
 no wise be construed to mean that the 
 lease of a dwelling house may not pro- 
 vide that the tenant shall make all neces- 
 sary repairs himself; such a clause in the 
 contract is lawful, the preceding rules, 
 as stated in the beginning, defining the 
 duties of the lessor and the rights of the 
 tenant only in cases where there is no 
 agreement to the contrary. A great 
 many dwelling house leases do provide 
 that all repairs and upkeep shall be made 
 by the tenant, and that he shall return 
 the premises in as good condition as he 
 found them, ordinary wear and tear and 
 damages by the elements excepted. 
 
 Where the tenant undertakes to make 
 the repairs it is verv important that the 
 clause excepting "damages by the ele- 
 ments" be added to the contract ; other- 
 wise he might be held to make repairs
 
 138 THE LAW OF REAL ESTATE 
 
 necessitated by accidental casualties not 
 contemplated when making the contract. 
 
 Lessor Not Liable for Damages From 
 Dilapidations. — IMany suits have been 
 brought against landlords for damages 
 sustained by tenants because of the dilap- 
 idated condition of leased residence 
 premises consequent upon the landlord's 
 failure to make repairs after notice had 
 been given him to do so. In all such 
 suits the courts have invariably held that 
 no damages could be recovered, for the 
 reason that the law gives the tenant the 
 privilege of making the repairs himself 
 if the landlord fails to, or in such case 
 the option to vacate the premises ; and if 
 he neglects to take advantage of these 
 rem.edies it is his own negligence, and 
 he has no one to blame but himself. 
 
 But if the landlord does assume to 
 make repairs, and if in the performance 
 thereof, or as a result thereof, any injury 
 is caused to the lessee because of want 
 of skill or proper selection of his work- 
 men or materials he can be held liable 
 therefor. 
 
 Lessor's Obligation to Repair Not Ap- 
 plicable to Business Property. — It will 
 be noticed that the obli2:?tions as to re- 
 pairs as stated above have reference sol-
 
 THE LAW OF REAL ESTATE 139 
 
 ely to premises occupied or to be occu- 
 pied by humans as a dwelling place. The 
 courts have held that they are special 
 provisions attached by statute to resi- 
 dence property for the purpose of safe- 
 guarding the health and well-being of 
 the occupants, and that said provisions 
 do not in any way apply to property 
 used for business purposes. 
 
 Where property is to be used for busi- 
 ness purposes the prospective lessee is 
 supposed to examine them and decide 
 for himself if they are fit for his purpose, 
 as he is presumed to know best his own 
 intentions and needs; and as the prem- 
 ises might originally have been erected 
 for an entirely different use, there can 
 be no implied presumption that they are 
 suitable for the use to which he intends 
 to put them, or that they will be kept in 
 repair so as to continue to be suitable 
 for such use. Therefore the tenant is 
 presumed to take the premises as they 
 are, and the landlord, in the absence of 
 any express agreement on his part, is not 
 lequired to make any alterations or re- 
 pairs, even when the premises become 
 defective from decay. 
 
 In the case of a dwelling house it is 
 different. As it was presumably erected
 
 140 THE LAW OF REAL ESTATE 
 
 for human occupation, and is let for that 
 purpose, it is presumed that it is fit for 
 that purpose, and the obligation is there- 
 fore imposed by the law of the state up- 
 on the landlord to place it in and main- 
 tain it in an inhabitable condition, un- 
 less the tenant assumes the obligation to 
 do so himself. 
 
 It is thus quite evident that, since the 
 landlord is not required by statute to 
 make repairs upon premises used for 
 business purposes, the tenant must 
 either do so for himself, or provide for 
 such matters in the lease. Therefore all 
 conditions and agreements regarding al- 
 terations, repairs and maintenance, light, 
 heat, sign space, water rates, painting, 
 and all other items, as well as purposes 
 for which the premises are to be used, 
 should be carefully and specifically in- 
 corporated in the lease, as the law it- 
 self will aflFord no comfort or relief, but 
 will leave it to the agreements in the 
 contract. 
 
 NUISANCE 
 
 Definition of Nuisance. — Anything 
 w^hich is injurious to health, or is inde- 
 cent or offensive to the senses, or an ob- 
 struction to the free use of the property
 
 THE LAW OF REAL ESTATE 141 
 
 SO as to interfere with the comfortable 
 enjoyment thereof, is a nuisance. 
 
 Action Against Tenant for Maintain- 
 ing. — An action may be brought against 
 the tenant by any person whose prop- 
 erty is injuriously affected by a nuisance, 
 and if judgment is obtained the nuisance 
 may be enjoined or abated, and damages 
 therefor may be recovered as well. 
 
 WASTE 
 
 Duty of Tenant to Use Property in 
 Careful Manner. — While the tenant is 
 not liable for damages to the leased 
 premises for use in a lawful and proper 
 manner, yet it is his duty to so use them 
 as not to cause unnecessary injury. 
 
 The tenant is generally liable for caus- 
 ing permanent injury over and above or- 
 dinary wear and tear, when such injury 
 is caused by his wrongful act or negli- 
 gence. The measure of care which the 
 tenant must use to avoid responsibility 
 is that which a person of ordinary prud- 
 ence and caution would use if the prop- 
 erty were his own. 
 
 Damages for Committing Waste. — 
 Where the tenant commits wilful waste 
 any person who is aggrieved thereby 
 may bring an action against him there-
 
 142 THE LAW OF REAL ESTATE 
 
 for, and the judgment may be for treble 
 the amount of the injury. 
 
 Lease May Be Terminated for Waste. 
 — Any tenant or subtenant committing 
 Avaste (injury) upon the leased premises, 
 contrary to the provisions of his lease, 
 thereby terminates the lease, and the 
 landlord shall, upon service of proper 
 notice to quit upon the person or persons 
 in possession, be entitled to restitution 
 to him of such premises. See "Forfeit- 
 ure of Lease.'' 
 
 FORMS FOR LEASES 
 
 All Leases Should Be Reduced to 
 Writing, and Should Be Explicit in Their 
 Terms. — A lease is but a contract, and 
 therefore should be drawn and executed 
 in about the same manner as any valid 
 contract would be. There must be par- 
 ties who are competent to contract, and 
 the wording should be direct and ex- 
 plicit enough so as to be able to ascer- 
 tain from it the intentions of the parties 
 towards each other, and just what each 
 obligated himself to do. The law simply 
 establishes the liabilities of the parties 
 in the absence of definite agreements, 
 and practically all its provisions may be 
 modified or changed by contract.
 
 THE LAW OF REAL ESTATE 143 
 
 Therefore every matter of importance, 
 in cases where it is not desired to be 
 bound by the provisions of the law 
 which would govern in the absence of 
 any special agreement, should be incor- 
 porated in the written instrument. Oral 
 leases and agreements may be all right, 
 but when proof is wanted they are some- 
 times pretty poor things; so, even in 
 short term contracts, prudence and good 
 business economy would seem to sug- 
 gest that all leases should be reduced to 
 writing in order to avoid argument and 
 dispute, and to more firmly establish 
 both the rights and liabilities of the par- 
 ties interested. 
 
 Form for Ordinary, Every-Day Lease. 
 — No particular language is required to 
 be used in drawing up a lease, but cer- 
 tain forms and expressions have come to 
 be used for the purpose, and it is well 
 to follow them pretty closely for the sake 
 of legal accuracy. The following form 
 is simple, is in every way adequate, bind- 
 ing and holding. After the opening para- 
 graphs are copied, with the wording in 
 parentheses changed to suit the case in 
 hand, there may be added, in the place 
 indicated, as few or as many other 
 agreements as the parties see fit. After
 
 144 THE LAW OP REAL ESTATE 
 
 as many have been inserted as desired, 
 then close the form as per the closing 
 paragraphs ; being always careful to state 
 when the term begins, and dating it on 
 the day it is signed and delivered, you 
 have as perfect an instrument as it is 
 possible to make. Each party should 
 take a copy. 
 
 LEASE. 
 
 THIS LEASE, made the (first day of July, 
 in the year of our Lord nineteen hundred and 
 twenty), bet-tveen (Jonathan Wilson), the party 
 of the first part, and (Harrison Fish), the party 
 of the second part, AVitnesseth: That for and 
 in consideration of the payments of the rents, 
 and the performance of the covenants contained 
 herein, on the part of the said party of the sec- 
 ond part, and in the manner hereinafter stated, 
 said party of the first part does hereby lease, 
 demise, and let unto the said party of the seconil 
 part, that certain (dwelling house, store room, 
 warehouse, or whatever) and its appurtenances, 
 situated at (liere describe the property intended 
 to be let definitely, stating the city or town, 
 county and state also), for the term of (two 
 years), commencing on the (first day of July, 
 1920), and ending on the (thirtieth day of June, 
 1922), at the monthly rent of (forty) dollars, 
 payable monthly in advance, on the first day 
 of each and every montli during said term. 
 
 And the said party of the second part does 
 hereby covenant, promise and agree to pay to 
 the said party of the first part the said rent 
 herein reserved in the manner herein specified. 
 
 And It is further covenanted and agreed, that 
 if any rent shall be due and unpaid, or if default 
 shall be made in any of the covenants herein 
 contained, then it shall be lawful for the said 
 party of the first part to re-enter the said prem- 
 ises and to remove all persons therefrom. 
 
 (Add here any other covenants or agreements 
 desired, as per the suggestions given further 
 on, closing the lease with the paragraphs which 
 follow).
 
 THE LAW OF REAL ESTATE 145 
 
 And it Is further covenanted and agreed, that 
 at the expiration of the said term, or any sooner 
 determination of this lease, the said party of 
 the second part will quit and surrender the 
 premises hereby leased and demised in as good 
 order and condition as reasonal>le use and Trear 
 thereof will permit, damages by the elements 
 excepted. 
 
 And it is furtlier covenanted and agreed, that 
 if the party of the second part shall hold over 
 the said term, with the consent, expressed or 
 implied, of the party of the first part, such 
 holding shall be construed to be a tenancy 
 only from month to month, and said party of 
 the second part will pay the rent as herein 
 covenanted for such term as he may hold the 
 same. 
 
 And it is further covenanted and ap.reed that 
 all the provisions of this lease shall extend to 
 and include the heirs and ai^signs of the lessor, 
 the party of the first part, and the executors, ad- 
 ministrators, and assigns of the lessee, the party 
 of the second part. 
 
 In witness whereof, the said parties have 
 hereunto set their hands the day and year first 
 above written. 
 
 (Signature of lessor ) 
 
 (Signature of lessee ) 
 
 Signed and delivered in the presence ofj 
 
 (Signatures of witnesses.) 
 
 Forms for Extra Covenants. — The fol- 
 lowing covenants are suggestions for 
 wording other items of the contract. 
 They cover nearly all the items usually 
 inserted in the average lease. A coven- 
 ant is simply an agreement to do or not 
 to do a certain thing. 
 
 The examples given can be changed 
 or varied so as to indicate the intentions 
 of the parties, and others added when 
 desired to cover matters like insurance.
 
 146 THE LAW OF REAL ESTATE 
 
 payment of water rates, light, and heat, 
 removal of fixtures and improvements, 
 amount of repairs and when and how to 
 be made, repairing and rebuilding in 
 case of fire, how lease may be surren- 
 dered, allowance of days of grace in the 
 payment of the rent, and any and all 
 items which the circumstances and con- 
 ditions surrounding the making of the 
 lease may suggest. 
 
 COVENANT OF USE 
 And it Is further covenanted and agreed by 
 the party of the second part that he ■will use 
 the said demised and leased premises for the 
 purpose of conducting a jsrrocery store (or wliat- 
 ever the use may be), and for no other purpose, 
 and that he Trill so conduct said business in 
 said premises so that it shall not become a 
 nuisance or interfere ^vlth other tenants in said 
 premises. 
 
 COVENANT NOT TO SUBLET 
 And it is further covenanted and agreed that 
 the said party of the second part shall not 
 underlease or sublet the T»hole or any part of 
 the demised premises, or in any other manner 
 part Tvith the possession or occupation of the 
 same, Trithout the special license and consent 
 of the party of the first part. In writing, first 
 had and obtained. 
 
 COVENANT NOT TO ASSIGN 
 And it is further covenanted and agreed that 
 the said party of the second part shall not 
 assign this lease during any part of the demised 
 term, -tvlthout the special license and consent 
 of the party of the first part, in writing, first 
 had and obtained. 
 
 COVENANT PERMITTING ASSIGNMENT IF 
 SUITABLE TENANT IS FOUND 
 And it is further covenanted and agreed that 
 the said party of the second part may assign
 
 THE LAW OF REAL ESTATE 147 
 
 this lease, during any part of the demised term, 
 If a tenant be found -who Is aeceptable to the 
 party of the first part. 
 
 COVENANT AS TO ALTERATIONS 
 And it is further covenanted and agreed tliat 
 the said party of the second part shall not 
 make, or permit any otlier person to malve, any 
 alterations of the demised premises without 
 the special license and consent of tlie party of 
 the first part, in -writing;, first had and ob- 
 tained. 
 COVENANT BY LANDLORD TO MAKE 
 REPAIRS 
 And It is further covenanted and agreed that 
 the party of tlie first part shall, at his own 
 expense, from time to time, and at all times 
 during said term, well and sufficiently repair 
 said premises, witli the appurtenances, as often 
 as reasonable need or occasion shall require. 
 
 COVENANT BY TENANT TO MAKE REPAIRS 
 And it is further covenanted and agreed that 
 the party of the second part shall, at his oitu 
 expense, from time to time, and at all times 
 during said term, T\'ell and sufficiently repair, 
 sustain, nuiintaln, cleanse, glaze, empty, and 
 keep said premises, ^vlth the appurtenances, 
 as often as reasonable need or occasion shall 
 require, ordinary ^vear and tear and casualties 
 by tlie elements ^vhich may accidentally destroy, 
 consume, bum down or burn up the said prem- 
 ises, or any part thereof, only excepted. 
 
 COVENANT BY LANDLORD TO PAY TAXES 
 And it is further covenanted and agreed that 
 the party of the first part shall pay and dis- 
 cliarge all taxes and assessments ^vhich may 
 be levied during said term upon said premises. 
 
 COVENANT BY TENANT TO PAY TAXES 
 And it is further covenanted and agreed that 
 the party of the second part sliall, as additional 
 rent and consideration, pay and discliarge all 
 taxes which may be levied during said term 
 upon said premises. 
 
 COVENANT TO RENEW LEASE 
 And it is further covenanted and agreed that 
 the said party of the first part, the lessor
 
 148 THE LAW OF REAL ESTATE 
 
 herein, if so requested hy the said party- of 
 the second part, the lessee herein, at least 
 (thirty days) before the expiration of the term 
 herein in this lease speelHed^ shall and will 
 grant a further lease of the aforesaid premises 
 to the said party of the second part, the lessee 
 herein, for the further term of (ilve) years, to 
 commence from the expiration of the term here- 
 by granted, at and under the (same, or as the 
 case may be) yearly rent and covenants and 
 agreements as herein contained. 
 
 COVENANT OF OPTION TO PURCHASE 
 And it is further covenanted and agreed that 
 if the said party of the second part, or his 
 assigns, at any time during the said term, shall 
 desire to purchase the hereiu leased premises 
 for the sum of (so many dollars), in gold coin 
 of the United States, and shall tender said 
 amount to the said party of the first part, to- 
 gether vrith all rent due up to the time of 
 said tender, then this lease is by said tender 
 terminated, and the said party of the first part 
 will on the same day malie, acltnowledge, and 
 deliver to said party of the second part, or his 
 grantee, a grant of said premises. 
 
 By following the above plan of making 
 a paragraph of each separate item of the 
 agreement, and starting each paragraph 
 with the same words, to wit: "And it is 
 further covenanted and agreed," and 
 then numbering the paragraphs in rota- 
 tion, greater uniformity and simplicity 
 is preserved, there is not so much oppor- 
 tunity for the language to become com- 
 plicated, and the intentions of the parties 
 can be more readily and easily arrived 
 at. 
 
 In Case of Complicated Leases. — A 
 simple, ordinary, every-day lease can be
 
 THE LAW OF REAL ESTATE 149 
 
 drawn up by almost anybody, but where 
 the term is a long one, and many re- 
 strictions as to use and reversion, build- 
 ing operations, or other important mat- 
 ters involving legal technicalities are to 
 be provided for and incorporated there- 
 in, the parties should without doubt 
 exercise the part of prudence and secure 
 the services of a competent attorney well 
 versed in the law of real property. 
 
 Form for Farm Lease. — The following 
 form for the lease of agricultural lands 
 is in general use in California, and will 
 meet all requirements by following the 
 general form of the wording, simply 
 making whatever changes may be neces- 
 sary according to the terms of the lease. 
 
 The words, "to farm let," seem to be 
 considered requisite in all leases of farm 
 lands. 
 
 In the absence of any clause in the 
 contract to the contrary, a tenant for 
 years or at will, while legitimately in 
 possession, mav occupy the buildings, 
 take the annual products of the soil, and 
 work mines and quarries open at the 
 commencement of his tenancy. If he 
 does so while wrongfully holding over 
 he is liable for damages.
 
 150 THE LAW OF REAL ESTATE 
 
 FARM LEASE 
 
 THIS LEASE, made this (first day of Janu- 
 ary, 1920), between (James Spencer), of the 
 county of (El Dorado), state of California, party 
 of the first part, and (Henry Hodges), of the 
 county of (Sonoma), state of California, party 
 of the second part, witnesseth: 
 
 That the said party of the first part, for and 
 in consideration of the rents, covenants and 
 agretiuents hereinafter mentioned, reserved and 
 contained, on the part and in behalf of the 
 said yarty of the second part to be paid, kept 
 and nerformed, does hereby grant, demise, and 
 to favm let unto the said party of the second 
 part all those certain premises described as 
 follo^vs, to-wit: .(here describe the premises 
 intended to be leased as definitely as possible), 
 for the term of (four) years, commencing on 
 the <Srst day of March, 1920), and ending on 
 the (29th day of February, 1924), for and at 
 the yearly rent of (so many dollars), payable 
 (at such times as may be agreed), in gold coin 
 of the United States. 
 
 And the said party of the second part does 
 hereby covenant and agree to pay to the said 
 party of the first part the said rent herein 
 reserved in the manner herein specified. 
 
 To have and to hold the said demised prem- 
 ises unto the said party of the second part, for 
 his sole and proper use and benefit, for and 
 during the term aforesaid, together -with all 
 the tonements and hereditaments thereunto ap- 
 pertaining, and all the stock and farming uten- 
 sils of every name and nature no^v being in or 
 upon the same, belonging to the said party of 
 the lirst part. 
 
 In consideration -whereof the said party of 
 the second part hereby covenants and agrees 
 to anil with the said party of the first part that 
 he will occupy, till, and in all respects cultivate 
 the premises above described, during the term 
 aforesaid, In a farmer-like manner, j»nd accord- 
 ing t4> the usual course of farming practiced 
 in the neighborhood; that he will not commit 
 any ^vaste or damage, or suffer any to be done; 
 that iie will, at his own cost and expense, keep 
 the fences and buildings on said premises In 
 good repair, reasonable wear thereof and dam- 
 ages by the elements excepted.
 
 THE LAW OF REAL. ESTATE 151 
 
 (Add here any other special covenants ^vhich 
 may be aj?reed upon, then eloHing the learse as 
 follows) : 
 
 And It is further covenanted and agrreed that 
 all the provisions of this lease shall extend to 
 and include the heirs and assigns of the lessor, 
 the party of the first part, and the executors, 
 administrators, and assigns of the lessee, the 
 party of the second part. 
 
 In T»-ltness >viiereof, tlie said parties have 
 hereunto set their hands the day and year first 
 above >vritten. 
 
 (Signatures of parties ) 
 
 Signed and delivered in tlie presence of: 
 
 (Signatures of witnesses). 
 
 If the land is to be farmed on shares, 
 add the following- paragraphs after the 
 one beginning, "In consideration wliere- 
 of, etc.," leaving out the portions of the 
 first and second paragraphs about the 
 rent. 
 
 And that he Tvill deliver to said first party, 
 or to his order, each year during the term of 
 this lease, one equal (third) of all the proceeds 
 and crops produced on the said farm and f>rem- 
 ises aforesaid, of every kind, name, and descrip- 
 tion, to be divided on the said premises, in stack 
 and sack, according to the usual course and 
 custom of making such divis'ions in the neigh- 
 borhood, and in a seasonable time after such 
 crop shall have been gathered and har»-ested. 
 
 And it is furtlier covenanted and agreed that 
 the said party of the second part shall find all 
 seed or seeds necessary to be so^vn on said 
 premises, and sliail do or cause to be done all 
 neces>.ar>' work and labor in and about the 
 cultivation of said premises; that he is to liave 
 full permission to inclose, pasture, or till and 
 cultivate the said premises, so far as the same 
 may be done without injury to the reversion, 
 and to cut all necessary timber for firewood, 
 farming purposes, and repairing fences. 
 
 Said party of the first part shall furnish on 
 said premises, at the proper time in each year 
 during the term of this lease, sacks sufticient
 
 152 THE LAW OF REAL ESTATE 
 
 to hold all the srain coming to him as his 
 share. 
 
 Lease By Corporation. — The property 
 of a corporation can be leased only by 
 authority of its board of directors. It 
 is well to state in the instrument that 
 the lessor therein is a corporation, and 
 that the lease is made pursuant to a res- 
 olution of its directors duly passed. See 
 remarks and phraseology under the head- 
 ing of "Form of contract of sale by cor- 
 poration,'' in chapter three. 
 
 RECORDING LEASE 
 
 Lease Not Exceeding One Year. — A 
 lease NOT EXCEEDING ONE YEAR 
 NEED NOT BE RECORDED, even if 
 the lease is in writing. If the lease is 
 otherwise all right it is valid against 
 everybody, whether recorded or not. 
 Such leases oftentimes are recorded, but 
 only because of a misapprehension of 
 the effect thereof. Nothing can be add- 
 ed to its validity or effectiveness by re- 
 cording any document which the law 
 does not require to be recorded. 
 
 Lease for More Than One Year. — A 
 lease for a period LONGER THAN 
 ONE YEAR MUST BE RECORDED 
 to be valid against others than the les-
 
 THE LAW OF REAL ESTATE 153 
 
 sor and lessee. It is just as valid and 
 effective between them if not recorde(J, 
 but is void against any subsequent pur- 
 chaser or mortgagee of the leased prop- 
 erty, in good faith, and for a valuable 
 consideration, whose conveyance or 
 mortgage is FIRST duly recorded. 
 
 To illustrate : Jones leases his ware- 
 house to Brown for ten years. The lease 
 is not recorded. In the meantime Jones 
 sells the property to Thompson. If 
 Thompson records his deed before the 
 lease is recorded Brown's lease is thus 
 rendered void, and Thompson can 
 throw him out if he chooses. Thomp- 
 son's purchase of the property must, 
 liowever, be in good faith. If he had 
 knowledge of Brown's lease the case 
 would be different. Such knowledge 
 would have the same effect that record- 
 ing the lease would ; therefore the lease 
 would be good against Thompson, and 
 he could not remove Brown because of 
 the fact that his lease was not recorded. 
 Actual knowledge of a thing is just as 
 effective as notice of the existence of the 
 thing as any information which can be 
 gotten from the books of record, and 
 has practically the same force and effect. 
 
 A lease for more than one year is also
 
 154 THE LAW OF REAL ESTATE 
 
 void as against any judgment affecting 
 the title of the property unless it shall 
 have been duly recorded prior to the be- 
 ginning of the action in which such 
 judgment is rendered. 
 
 Must Be Acknowledged Before Re- 
 cording. — Before a lease can be record- 
 ed it must be acknowledged before a no- 
 tary public or other competent person 
 authorized to take acknowledgments. It 
 can then be recorded by either party, at 
 any time during its term. Forms for the 
 acknowledgment of leases are the same 
 as required for the acknowledgment of 
 deeds, and can be found in the chapter on 
 the ''Transfer of Real Property." 
 
 ASSIGNMENT OF LEASE 
 
 Definition of Assignment. — If the les- 
 see parts with or conveys x\LL his right 
 and interest in the lease, for the 
 WHOLE of the remaining portion of his 
 term, it is deemed to be an assignment; 
 but if only a portion of the lessee's in- 
 terest is conveyed, or the whole of his 
 interest for only a portion of his term, 
 it is a sublease. The distinction is 
 sometimes very important. 
 
 Right of Lessee to Assign. — Unless 
 the lessee is restrained from so doing by
 
 THE LAW OF REAL ESTATE 155 
 
 the terms of the lease he may assign all 
 his right and interest therein to other 
 parties without the consent of the lessor. 
 If there is a restraining clause in the 
 contract he must first obtain the WRIT- 
 TEN CONSENT of the lessor to the as- 
 signment. 
 
 An assignee may also re-assign to an- 
 other assignee if there is no restriction 
 to the contrary. 
 
 Who Responsible in Case of Assign- 
 ment. — Where there is an assignment of 
 the lease the lessor may look to 
 EITHER the assignee or to the original 
 lessee for the rent. The assignee takes 
 the premises subject to all the terms and 
 conditions of the original lease regard- 
 ing the payment of rent, repairs, use of 
 the property, and all other matters in- 
 corporated therein ; and for violation of 
 any of its terms the lessor has the same 
 remedies against the assignee as against 
 the lessee for any cause of action accru- 
 ing while they are assignees, except 
 where the assignment is made for se- 
 curity for a loan, and the lessee does not 
 give up possession of the premises. 
 
 But, as stated, the assumption of the 
 obligations of the contract by the as- 
 signee does not in any way release the
 
 156 THE LAW OP REAL ESTATE 
 
 original lessee from his obligations to 
 the original lessor; and unless the lessor 
 agrees in writing to release the original 
 lessee from the obligations imposed by 
 the contract, and accepts the transfer of 
 the liability for their performance to the 
 assignee in his stead, then the original 
 lessee will still be responsible to him 
 whenever the assignee fails to pay the 
 rent or observe the other covenants of 
 the agreement. 
 
 Acceptance of Assignee As Tenant By 
 Receiving Rent From Him. — It has been 
 held that where a lessor accepts rent 
 from the assignee and gives him a re- 
 ceipt therefor in his name, he thereby 
 impliedly accepts the assignee as his 
 own tenant, which would have the ef- 
 fect of relieving the original lessee from 
 all the obligations imposed by the lease. 
 
 Unlawful Assignment Terminates 
 Lease. — Any tenant or subtenant as- 
 signing the leased premises contrary to 
 the provisions of his lease, thereby ter- 
 minates the lease, and the landlord shall, 
 upon service of proper notice to quit 
 upon the person or persons in possession 
 be entitled to restitution to him of such 
 premises. See ''Forfeiture of Lease." 
 
 Forms for Assignment of Lease. —
 
 THE LAW OF REAL ESTATE 157 
 
 Where the lease has not been recorded, 
 the assignment may be endorsed on the 
 instrument itself, in words as follows : 
 
 ASSIGNMENT OF LEASE 
 
 I hereby graut, sell, assign, and set over un- 
 to (name of assignee), all my right, title, and 
 interest to, in, and under the within lease. 
 
 (Signature of assignor ) 
 
 (Date ) 
 
 Where the lease has been recorded, 
 the following form for the assignment 
 should be used. 
 
 ASSIGNMENT OF RECORDED LEASE 
 Kno>v all men by these presents: That (name 
 of the lessee in the lease to be assigned), the 
 party of the first part, for and in considera- 
 tion of the sum of (so many dollars), to him 
 in hand paid by (name of assignee), the re- 
 ceipt of T»hich is hereby acknowledged, does by 
 these presents grant, bargain, sell, assign, 
 transfer and set over unto the said party of 
 the second part, a certain lease, bearing date 
 the (insert date of lease), made and executed 
 by (name of lessor), to (name of lessee), and 
 recorded on the (tenth day of October, 1950), 
 In book (176) of leases, at page (122) in the 
 office of the county recorder of (Alameda) coun- 
 ty, state of (California), of and to the follow- 
 ing real property, to-wlt: 
 
 (Description of property, same as In lease): 
 In witness whereof, the said party of the 
 first part has hereunto set his hand the (first 
 day of January, 1951). 
 
 (Signature of assignor ) 
 
 Where the consent of the lessor to the 
 assignment is necessary, the following 
 form will suffice : 
 
 LESSOR'S CONSENT TO ASSIGNMENT 
 I (name of lessor In the lease), lessor In fhe 
 lease above described, hereby consent to tlie
 
 158 THE LAW OF REAL ESTATE 
 
 above assignntent, this (first day of January, 
 1951). 
 
 ( Signature of lessor ) 
 
 Recording Assignment of Lease. — 
 
 ^^"here the lease itself is recorded the as- 
 signment thereof should be also. It 
 must be acknowledged before it can be 
 recorded. 
 
 SUBLETTING LEASE 
 
 Lessee May Sublet Unless Restrained. 
 
 — The lessee may sublet all or part of 
 the leased premises in the absence of any 
 provision in the contract restraining him 
 from doing so. If there is such a re- 
 striction then he must have the WRIT- 
 TEN CONSENT of the lessor. 
 
 Definition of Sublease. — It is a sub- 
 lease where a PORTION of the leased 
 premises is re-leased by the lessee there- 
 of to other tenants for either a part or 
 for the whole of his term. It is also a 
 sublease where the WHOLE of the 
 premises are re-let by the lessee thereof 
 for a portion of his term only. 
 
 W^hen the original lessee parts with 
 ALL his interest in the premises it is 
 not a sublease, but is an assignment 
 thereof; the distinction is important. 
 
 Subtenant May Also Sublet. — The 
 sublessee ma}^ also sublet to other par-
 
 THE LAW OF REAL ESTATE 159 
 
 ties where there is no restriction to the 
 contrary. 
 
 Lessee Still Liable for the Rent. — The 
 fact that the lessee sublets does not af- 
 fect his liability to the lessor for the 
 rent. The lessor knows only his imme- 
 diate lessee in the transaction, and is 
 bound to look only to him for his com- 
 pensation. He cannot hold the subten- 
 ant liable, for the subtenant is responsi- 
 ble only to the party with whom he con- 
 tracted. The lessor, may, however, 
 agree to accept the subtenant as his im- 
 mediate tenant, and to look to him for 
 the rent in lieu of the original lessee, in 
 which case the subtenant would be re- 
 sponsible to the original lessor, and the 
 original lessee would thereby be relieved 
 from his obligation to pay the rent dur- 
 ing the continuance of the term of such 
 subtenancy. 
 
 Also, if the original lessee surrenders 
 his lease, and the subtenant remains in 
 possession, and the lessor accepts rent 
 from him, he then becomes the tenant of 
 the lessor. 
 
 Subtenants Are Bound By Terms of 
 Lease. — Subtenants are supposed to 
 make inquiry and therefrom to know the 
 terms of the lease under which thev sub-
 
 160 THE LAW OF REAL ESTATE 
 
 let, and they are therefore bound by its 
 conditions. Xo new agreements can be 
 added which will bind the lessor beyond 
 those contained in the original contract. 
 Nothing can be added and nothing taken 
 away. 
 
 Therefore a cancellation of the orig- 
 inal lease cancels also the sublease. 
 Likewise, a notice to quit binds also the 
 undertenants. 
 
 Subtenant May Prevent Forfeiture of 
 Lease. — Any subtenant or other person 
 interested in the lease may prevent the 
 forfeiture thereof for violation of any of 
 its provisions by performance of the ob- 
 ligation which is violated. That is, if the 
 lessee has not paid his rent, for instance, 
 and is served with notice to do so or 
 give up possession of the premises, upon 
 the lessee's failure to pay as demanded 
 any other person interested may do so 
 within the time allowed by law and thus 
 save the lease from forfeiture. No mat- 
 ter from whom the lessor receives the 
 rent its payment will extinguish the de- 
 mand therefor. 
 
 The same is true in case of violation 
 of any other of the conditions of the 
 lease; the lessor's demand is satisfied
 
 THE LAW OF REAL ESTATE 161 
 
 when any other person interested per- 
 forms the thing demanded. 
 
 Unlawfully Subletting Terminates 
 
 Lease. — Any tenant or subtenant sub- 
 letting the leased premises, contrary to 
 the provisions of his lease, thereby term- 
 inates the lease, and the landlord shall, 
 upon service of proper notice to quit up- 
 on the person or persons in possession, 
 be entitled to restitution to him of such 
 premises. See "Forfeiture of Lease." 
 
 WITNESSES 
 
 Not Required By Law, but a Useful 
 Precaution. — The law does not require 
 that there shall be witnesses to a lease 
 of real property, but it is well to have 
 at least one witness, for the purpose of 
 more conveniently proving the instru- 
 ment, if necessary. Better still to have 
 two, so that either may testify, if need- 
 ed, should the other be unable to ap- 
 pear. 
 
 SEALS 
 
 Necessity for Their Use Abolished. — 
 There is no distinction in this state 
 between a sealed and an unsealed in- 
 strument and it is not necessary to use
 
 162 THE LAW OF REAL ESTATE 
 
 either a wafer or a pen scroll in any 
 form after a signature to a lease to rep- 
 resent a seal. Neither is it necessary to 
 say, "Witness my hand and seal;" "Wit- 
 ness my hand" is sufficient.
 
 CHAPTER VI. 
 
 REAL ESTATE AGENTS 
 
 It is quite remarkable how many ac- 
 tions are brought in the courts by real 
 estate agents for the recovery of com- 
 missions which they claim to have 
 earned. In many cases, doubtless, they 
 really have earned them, but they often 
 meet with failure in their efforts to re- 
 cover their fees because they overlooked 
 the necessity of complying with some 
 imperative provision of the law, their 
 negligence in this respect acting as a. 
 bar to obtaining redress by legal action. 
 
 In this chapter an endeavor will be 
 made to present and illustrate certain 
 well-defined rules of law and practice 
 which must be strictly complied with by 
 the agent before he can enforce com- 
 pensation for his services by legal pro- 
 cess ; and although most of these laws 
 have been on the statute books for many 
 years, they unfortunately seem to be un- 
 known to many whose business would
 
 164 THE LAW OF REAL ESTATE 
 
 particularly seem to require a knowl- 
 edge of them. 
 
 CONTRACT OF EMPLOYMENT 
 MUST BE IN WRITING 
 
 The Statute of Frauds. — Away back 
 in the seventeenth century there was 
 enacted in England during the reign 
 of Charles II a series of laws known then 
 and now as the "Statute of Frauds." This 
 statute, modified and changed to suit 
 local conditions, has been re-enacted in 
 some form in every state of our Union. 
 
 The principal object of the statute 
 was intended to be the prevention of 
 fraud and perjury by requiring certain 
 specified contracts to be put IN WRIT- 
 ING. This, it was supposed, would les- 
 sen fraudulent practices. Yet it is 
 doubtful if it really has accomplished 
 that end, for it undoubtedly has been the 
 convenient means of enabling persons to 
 injure others by furnishing them a ready 
 escape from the duty of fulfilling con- 
 tracts which were honestly made, but 
 which they did not wish to execute. 
 Many contracts made in good faith have 
 not been enforced because not reduced 
 to writing and properly subscribed; and 
 many a broker has lost his commission
 
 THE LAW OF REAL ESTATE 165 
 
 because of the neglect of this all-import- 
 ant provision of the law. 
 
 But although the statute of frauds is 
 one of the oldest in legal practice, still 
 many are not familiar with it, and con- 
 sequently fail to observe it. 
 
 The Statute of Frauds as Applied to 
 the Real Estate Agent. — The Statute of 
 Frauds as it now exists in the State of 
 California reads: 
 
 "The following contracts are IN- 
 VALID, unless the same, or some note 
 or memorandum thereof, is in writing, 
 and subscribed by the party to be 
 charged or by his agent." 
 
 It then enumerates the different sorts 
 of contracts which must be in writing, 
 but only those contained in sections five 
 and six will be considered here, they be- 
 ing of special application to the real es- 
 tate agent. 
 
 Section 5 : ''An agreement for the 
 leasing for a longer period than one 
 year, or for the sale of real property, or 
 of an interest therein ; and such agree- 
 ment, if made by an agent of the party 
 sought to be charged, is invalid, unless 
 the authority of the agent is in writing, 
 subscribed by the party sought to be 
 charged."
 
 166 THE LAW OF REAL ESTATE 
 
 The matter of leases has been thor- 
 oughly gone into in the chapter on 
 "Landlord and Tenant," and the matter 
 of contracts relating to the sale of real 
 property in the chapter on "Contracts 
 of Sale of Real Propertv." Suffice it to 
 repeat here, that EVERY CONTRACT 
 for the sale of real property, or in any 
 way affecting real property, or the con- 
 veyance of the same, either permanently 
 or for a limited time, with the single ex- 
 ception of a lease for not more than one 
 year, must be IN WRITING. 
 
 Section 6: "An agreement authoriz- 
 ing or employing an AGENT or BRO- 
 KER to purchase or sell real estate for 
 compensation or comm.ission." 
 
 Necessity of Having Authorization in 
 Writing is Imperative. — There are no 
 qualificatons in, to, or about the section 
 quoted above. The authority of the 
 agent to buy, sell, or lease real property 
 must be in writing, and must be signed 
 by the owner or other proper person, or 
 by some one authorized to act for him. 
 
 It must not be misunderstood as 
 meaning" that an oral authority to an 
 agent is not valid, for it is; it is just as 
 good as a written one as far as it goes. 
 The statute does not render oral con-
 
 THE LAW OP REAL ESTATE 167 
 
 tracts void, but means that no action can 
 be brought to recover on them. It takes 
 away the remedy. In other words, an 
 oral authority to sell real estate has no 
 standing in court. Such contracts are all 
 right so long as there is no trouble over 
 them, but no action to enforce them .or 
 any of their provisions can be main- 
 tained in a court of justice. 
 
 It should therefore be very plain, that 
 no commissions or compensation for his 
 services whatsoever can be collected by 
 the agent by an action at law unless he 
 is prepared to produce a written agree- 
 ment authorizing him to act in the 
 capacity for which he claims compensa- 
 tion. 
 
 There is no limitation or qualification 
 to the above statement. It is true even 
 to the extent that if the agent without 
 written authority actually makes a sale, 
 and the ow^ner actually accepts the 
 terms, receives the money, and delivers 
 the deed, the agent cannot recover one 
 penny for his services if the owner sees 
 fit to refuse to pay him. 
 
 Neither would any deal made by the 
 agent without written authority be bind- 
 ing upon his principal, who could back 
 out of any transaction at any time be-
 
 168 THE LAW OF REAL ESTATE 
 
 fore its actual consummation, and 
 neither the agent nor his customer 
 would have any redress. 
 
 Defendant Must Plead Statute.— As 
 the Statute of Frauds is a defense solely, 
 the party who is sued must set up in his 
 answer the fact that the contract was not 
 in writing if he wishes to make that his 
 defense; otherwise he will be deemed to 
 have waived that objection. 
 
 The Agent's Contract. — The authority 
 from the owner to the agent to sell or 
 barter property is not required to be in 
 any particular form. It may come to him 
 from the owner in the form of a letter, 
 or letters, telegram, formal printed con- 
 tract, or any other manner so long as it 
 is in writing, and contains direct and 
 positive authority to dispose of the prop- 
 erty by sale, lease, barter or exchange. 
 
 The amount of the agent's commission 
 need not be stated in the contract. While 
 it is well to do so, it is not necessary. 
 His services will be worth their reason- 
 able value, and in the absence of any 
 stated amount will be governed by the 
 usual rates and customs prevailing in 
 the community. 
 
 Contracts Between Agents. — The pro- 
 visions of the Statute of Frauds do not
 
 THE LAW OF REAL ESTATE 169 
 
 extend to agents who co-operate with 
 each other. Where an agent offers to 
 employ another agent to assist him in 
 the disposal of property for which he 
 holds the agency such employment need 
 not be in writing. In other words, 
 agents may agree verbally with each 
 other to divide a commission. 
 
 WHEN AGENT IS ENTITLED TO 
 COMMISSIONS 
 
 The Rule in California. — Presuming 
 that the agent is lawfully authorized to 
 negotiate the sale or purchase of real es- 
 tate in compliance with the requirements 
 of the law, as stated above, the next 
 point to be considered is, when is he 
 deemed to have rendered services suffi- 
 cient to entitle him to payment therefor 
 on a commission basis? In the follow- 
 ing paragraphs will be shown his status 
 in this respect, based upon numerous de- 
 cisions of the Supreme Court of the 
 state. 
 
 In Case of Open, or Non-exclusive, 
 Agency. — It may be remarked in com- 
 mencing that the real estate agent's right 
 of recovery depends upon his contract 
 with the owner of the land ; and he may 
 make almost any kind of a contract upon
 
 170 THE LAW OF REAL ESTATE 
 
 which his right to commission may de- 
 pend. 
 
 An agent or broker is designated as 
 a person whose business it is to bring 
 buyer and seller together. Unless 
 specially authorized he has nothing to do 
 with the negotiation of the bargain. 
 
 Or, if he cannot bring the buyer and 
 seller together, it then becomes his duty 
 to procure from the buyer a valid con- 
 tract to purchase, which contract must 
 in all cases be in writing, and be pre- 
 sented without delay to the seller. 
 
 Probably the far greater portion of 
 property in the hands of agents is simply 
 listed with them on the open agency 
 basis; that is, they are simply given 
 authority to find a purchaser. There is 
 usually no specified time set in which to 
 find the purchaser, and in such case the 
 agency is presumed to continue until the 
 property is sold, or the agent is notified 
 of its withdrawal from his agency, or 
 from the market. If the same piece is 
 listed with several agents, the one, of 
 course, w^ho first finds a buyer is entitled 
 to the commission. The owner may also 
 sell his property, if he finds a purchaser 
 first, without incurring liability to any 
 one.
 
 THE LAW OF REAL ESTATE 171 
 
 What Finding a Purchaser Means. — 
 
 The following, which is a synopsis of 
 the decisions in several leading cases in 
 this state, fixes definitely the status of 
 the agent, and the duty resting upon him 
 before he can be considered to be en- 
 titled to remuneration for his services : 
 
 To entitle the broker to recover com- 
 missions for effecting the sale of real 
 property, he must show that he was em- 
 ployed by or on behalf of the owner to 
 make the sale, and that his authority, or 
 some note or memorandum thereof, was 
 in writing, signed by the owner, or by 
 his authorized agent. And before a 
 broker can be said to have earned his 
 commission it must also be shown that 
 he produced a purchaser who was ready 
 and willing and able to make the pur- 
 chase on terms satisfactory to his em- 
 ployer, or in conformity with the price, 
 terms and conditions as set forth in his 
 contract of employment, and that he was 
 the efficient agent or procuring cause of 
 the sale. 
 
 Finding a purchaser means more than 
 finding some one who will oi¥er to nego- 
 tiate for the purchase. It implies the 
 production of one who is not only ready 
 and willing to comply with the terms of
 
 172 THE LAW OF REAL ESTATE 
 
 the sale, but who has also the present 
 ability to consummate it, by doing all 
 the acts that may be required of him to 
 make an actual transfer of the land. To 
 produce one who makes an offer of pur^ 
 chase, and who is without means, or who 
 is not in condition to comply with the 
 terms of the sale, and against whom a 
 claim for damages resulting from a fail- 
 ure to perform the contract of purchase 
 could not be enforced, does not consti- 
 tute the finding of a purchaser within 
 the meaning of the law; and the mere 
 statement by one who is produced that 
 he is ready and willing to make the pur- 
 chase is not suflicient, for he must satis- 
 fy the owner that he also has the ability 
 to do so. The owner has the right to an 
 enforceable contract, if the sale is not 
 to be consummated immediately. 
 
 The agent is never entitled to commis- 
 sions when unsuccessful. The risk of 
 failure to find a purchaser who is ready 
 and willing is wholly his. Reward comes 
 only with success. He may devote his 
 time and labor, and spend his money, 
 and yet if he fails or abandons the effort, 
 or if his authority is fairly and in good 
 faith terminated, he gains no right to 
 commissions, no matter of what value
 
 THE LAW OF REAL ESTATE 173 
 
 the efforts which he has made may after- 
 wards prove to his employer. 
 
 As a sequence, then, it necessarily fol- 
 lows that where the agent produces a 
 party with the ability to purchase, and 
 who is ready and willing to do so at the 
 price and terms set upon the property, 
 he is entitled to his commissions, even 
 if the owner backs out and refuses to 
 complete the deal. 
 
 The same is equally true if the agent 
 simply brings the buyer and the seller 
 face to face, without taking any further 
 part in the negotiations whatsoever, if 
 therefrom a sale results, no matter on 
 what terms or conditions. The fact that 
 the sale is ultimately made at a different 
 price from the figure at which the agent 
 was authorized to sell will not make any 
 dift'erence ; if the agent was the means of 
 bringing the parties together, he is en- 
 titled to compensation for so doing on 
 whatever transactions may subsequently 
 occur as the result thereof, provided they 
 were within the scope of his authority. 
 
 A somewhat dift'icult point arises here, 
 however. Where no specified time is 
 set in the agreement with the agent 
 within which he must effect a sale, and 
 he produces a customer who begins ne-
 
 174 THE LAW OF REAL ESTATE 
 
 gotiations with the owner, which fall 
 down and are abandoned at the time, but 
 which are subsequently renewed between 
 the customer and the owner, without the 
 active participation of the agent, result- 
 ing in a sale, is the agent entitled to 
 commissions? This is a difficult question 
 to answer. Undoubtedly yes, if the sale 
 be made within a reasonable time after 
 he brought the parties together. But 
 what constitutes a reasonable time can- 
 not be definitely stated. There is no set 
 rule, and each particular case must 
 stand on its own merits. No more defi- 
 nite answer to the question can be 
 given. 
 
 Where Contract Specifies Time Limit 
 Within Which to Find Purchaser.— But 
 Avhere there is a time limit in the con- 
 tract with the agent within which he is 
 to effect a sale, it must appear that he 
 performed the duty assigned him strictly 
 within such limit. If he fails to do that 
 he is not entitled to commissions, even 
 though he made efforts to sell the prop- 
 erty, and first called to it the attention 
 of the party who subsequently makes the 
 purchase, unless the delay in completing 
 the sale was due to the negligence, fault, 
 or fraud of the owner.
 
 THE LAW OF REAL ESTATE 175 
 
 The leading case, upon which the Cali- 
 fornia decisions on this point are based, 
 may be summed up thus: 
 
 The two essentials are, that the bro- 
 ker under a written appointment must 
 either produce a written contract to pur- 
 chase, or introduce to the seller a cus- 
 tomer ready, able, and willing to take 
 the property upon the terms stipulated; 
 and that this should be done within the 
 time limited in the contract. 
 
 In this case, the agent had two 
 months within which to find a customer. 
 He did so, and brought him face to face 
 with the owner, but the deal fell 
 through, without any fault of the owner, 
 who was really anxious to sell. Subse- 
 quently after the two months allowed 
 the agent had expired, the parties got 
 together again, and the sale was made. 
 Upon refusal of the owner to pay com- 
 missions the agent brought an action to 
 recover them. 
 
 The court held, that while it was true 
 the agent was instrumental in enabling 
 the owner to sell his land, still, as they 
 entered into written stipulations as to 
 the terms upon which the agent would 
 be entitled to commissions, which were 
 that he must produce a purchaser within
 
 176 THE LAW OF REAL ESTATE 
 
 two months, these stipulations must 
 govern ; and as the agent's customer 
 failed to take within the time stipulated, 
 the owner was free to act as he saw fit. 
 He was free to sell to the agent's cus- 
 tomer, or to any one else, and was un- 
 der no obligations to pay commissions 
 to the former agent under the contract, 
 because after its expiration it had spent 
 its force. 
 
 This synopsis of the generally ac- 
 cepted rule makes it clear that where the 
 agent is operating under an authority 
 which is limited as to time, he can re- 
 cover for his services only when he pro- 
 duces results within that time, either by 
 producing before the owner a buyer 
 ready to comply with the terms of the 
 sale as set forth in his agreement with 
 the agent, or else a valid contract of pur- 
 chase in accordance therewith ; but if the 
 agent simply produces a prospective cus- 
 tomer, the price and terms to be the sub- 
 ject of future negotiations, and such 
 negotiations are not concluded Avithin 
 the time limit in the agent's contract, he 
 cannot then claim commissions for what 
 he has done, unless, as stated, there was 
 fault or fraud on the part of his prin- 
 cipal.
 
 THE LAW OF REAL ESTATE 177 
 
 If the delay in closing the sale or the 
 breaking off of the negotiations, is 
 caused by any negligence, fault, fraud, 
 or design on the part of the owner to de- 
 feat the agent of his commissions, the 
 agent would then be entitled to recover 
 for his services, but not otherwise. 
 
 In Case of Defective Title. — The agent 
 has nothing to do with the title. If it 
 proves upon search to be defective that 
 is no fault of his. And unless he agrees 
 that his commissions shall be dependent 
 upon the owner's ability to furnish a sat- 
 isfactory title, he will be entitled to his 
 compensation when his part of the work 
 is done; that is, when he has supplied a 
 customer able, ready, and willing to 
 make the purchase. The owner should 
 know if his title is good, and the risk is 
 not one for the agent to bear. There- 
 fore the courts have decided that if the 
 sale is not completed simply because the 
 title is defective, or because of any other 
 fault on the part of the seller, that cir- 
 cumstance should not work a hardship 
 upon the broker, who may have spent 
 much effort and money in procuring the 
 sale, and his commissions are due and 
 payable the same as they would have 
 been if the title was satisfactory.
 
 178 THE LAW OF REAL ESTATE 
 
 When Agent is Not Entitled to Com- 
 missions. — Where a clause is added to 
 the agent's contract to the effect that he 
 is to receive his commissions out of the 
 first moneys paid by the purchaser to the 
 owner, the courts have decided that he 
 cannot recover his fees until and unless 
 such moneys are actually paid. Such a 
 clause is to be found in many contracts. 
 The agent might produce his customer, 
 ready, able, and willing to purchase, 
 but, under such a clause in his agree- 
 ment with the owner, if the latter re- 
 fused to complete the sale the agent 
 could not recover any compensation 
 whatsoever, for the reason that his con- 
 tract says his commissions are to be paid 
 out of the first moneys received by his 
 principal; therefore, if none are received 
 by his principal, there would be none to 
 pay the agent out of. 
 
 In a decision on this point the court 
 said : 
 
 "It tends to show an agreement to pay 
 commissions out of the first moneys re- 
 ceived, and no money has ever been re- 
 ceived. Under such a contract the 
 broker is not entitled to compensation 
 when he finds a purchaser ready, able, 
 and willing to purchase on the pres-
 
 THE LAW OF REAL ESTATE 179 
 
 cribed terms. There must be an actual 
 sale, and a first payment, to entitle him 
 to recover. It is so nominated in the 
 contract." 
 
 The same rule would apply to con- 
 tracts which stipulate, as some do, that 
 the commission is due and payable as 
 soon as the title passes. 
 
 Agent Must Either Bring Buyer and 
 Seller Together or Else Procure Signed 
 Agreement to Purchase. — A leading case 
 in the law reports shows that the agent 
 procured a purchaser who agreed ver- 
 bally to buy the property offered, and 
 deposited part of the purchase price. The 
 agent informed his principal of what he 
 had done, which was satisfactory, but 
 never brought the parties together. The 
 title proved defective, however, and the 
 deal fell through. The agent then sued 
 for his commissions. The following syn- 
 opsis of the decision illustrates the rule, 
 several times stated heretofore, that the 
 agent must bring the parties together 
 face to face, or else must present to the 
 owner a valid and enforceable contract 
 of purchase, signed by the proposed 
 buyer: 
 
 The undertaking of the agent is to 
 negotiate a sale; that is, to procure a
 
 180 THE LAW OF REAL ESTATE 
 
 valid agreement to purchase from the 
 buyer, which can be enforced by the 
 vendor if his title is perfect. This un- 
 dertaking on the part of the agent is 
 complete when he delivers or tenders to 
 the owner a valid written contract, con- 
 forming to the terms of sale agreed on, 
 signed by a party able to comply there- 
 with, or able to answer in damages if he 
 should fail to perform. 
 
 But the necessity of a written contract 
 of purchase may be rendered unneces- 
 sary if the agent bring the buyer and 
 seller together, and the latter is able and 
 willing and offers to complete the con- 
 tract. 
 
 In either case the agent has done all 
 that he can do, and if the vendor under 
 such circumstances refuses to complete 
 the sale, he nevertheless will be com- 
 pelled to pay the agent his commission. 
 The object of the vendor is to effect a 
 sale of his property, and when the bro- 
 ker produces a contract executed by a 
 solvent purchaser, or in lieu of a con- 
 tract produces the purchaser in person, 
 he is then entitled to pay for his ser- 
 vices, whether the trade is finally con- 
 summated or not, because if the vendee 
 refuses to take the property, after hav-
 
 THE LAW OP REAL ESTATE 181 
 
 ing signed an agreement to do so, the 
 vendor has a right of action against him 
 for all damages which he may sustain 
 by such refusal, including the commis- 
 sions which he would be compelled to 
 pay to the agent. 
 
 On the other hand, it being the duty 
 of the agent to either produce his cus- 
 tomer in person, or his written agree- 
 ment, he has not fulfilled the conditions 
 of his employment until he does one or 
 the other; and as the right of the agent 
 to commissions depends upon perform- 
 ance of his part of the contract, in the 
 case in hand it was decided that, as he 
 had not done either, the contract of pur- 
 chase being only a verbal one, he was 
 not entitled to recover for his services. 
 The fact that a deposit was made at the 
 time to bind the bargain did not afifect 
 the case one way or the other. 
 
 Extension of Time. — Where an agent 
 is granted a further time in which to find 
 a purchaser, it is just as necessary that 
 the extension should be in writing as it 
 is that the original agreement or con- 
 tract should be. 
 
 Exclusive Agency. — Where the agent 
 is given the exclusive agency to sell 
 property, he will be entitled to his com-
 
 182 THE LAW O^ REAL ESTATE 
 
 missions whether the sale is made by 
 him, or by the owner, or by any other 
 person. It matters not whether the 
 agent has made any progress towards 
 securing a purchaser or not, the fact that 
 his contract gives him the exclusive 
 right to do so within a specified time is 
 sufficient to protect him against any in- 
 terference with that right. The owner 
 cannot be deprived of the privilege of 
 selling his property himself, but if he 
 does so while under an exclusive con- 
 tract with the agent, unless specially 
 exempted in the agreement, he will be 
 liable to the agent for commissions just 
 the same as if the agent made the sale 
 himself. The owner by selling deprives 
 the agent of the opportunity to do so, 
 thus disabling him by nullifying what- 
 ever effort he may have made, or ex- 
 pense he may have incurred. 
 
 EXTENT OF AGENT'S AUTHOR- 
 ITY 
 
 Governed by the Contract. — The or- 
 dinary authority conferred upon the real 
 estate agent is to find a purchaser. He 
 cannot bind his principal by a contract 
 of sale unless specially authorized to do 
 so in his contract of employment. And
 
 THE LAW OF REAL ESTATE 183 
 
 under no circumstances can he execute 
 a deed or grant of the property unless 
 he has either a special or general power 
 of attorney for the purpose. 
 
 REVOCATION OF AGENCY 
 
 Power and Liability of Owner. — As a 
 
 general rule the owner has the power to 
 revoke the authority of the agent at his 
 will. But the judgment of the courts 
 seems to be, that while he has the power 
 to revoke, he cannot do so in violation 
 of his contract without incurring liabil- 
 ity therefor. AA^here the owner agrees 
 in waiting with the agent that the latter 
 shall have a specified number of days or 
 months in which to find a purchaser, he 
 can be held liable for any loss incurred 
 by the agent by reason of the revocation 
 of the agency during said time. In other 
 words, in making such a contract, the 
 owner impliedly agrees that he will sus- 
 pend his right to revoke the agency for 
 a certain length of time, and for the vio- 
 lation of such an agreement he is as 
 much liable as for the breach of any 
 other contract. 
 
 The agency is also revoked by the sale 
 of the property, or by the death of either 
 the principal or the agent.
 
 184 THE LAW OF REAL ESTATE 
 
 Return of Deposit by Agent. — The 
 agent who is acting simply as the agent 
 of the owner on commission should 
 never return a deposit on the sale of 
 property without the consent of the 
 owner. The intending purchaser may 
 claim that the title is defective, or that 
 there has been misrepresentation, or for 
 some other reason demand his deposit 
 back, but the agent has no right to be 
 the judge in such matters. When he 
 takes the deposit he holds it simply as 
 the agent for his principal, subject to 
 his orders, and if he should return it, and 
 the owner should suffer loss thereby, the 
 agent would be responsible to him in 
 damages to the extent of such loss. 
 
 Excess Over Fixed Price as Commis- 
 sion. — A contract of employment by the 
 terms of which the agent is to retain as 
 commission for his services all the ex- 
 cess which he obtains from the purchaser 
 over and above the price set by the 
 vendor is legitimate and valid. 
 
 Form of Contract for Employment of 
 Agent. — Contracts of employment of 
 agents to sell or exchange real property 
 may take innumerable forms. From the 
 one which follows by changing the de-
 
 THE LAW OF REAL ESTATE 185 
 
 tails, one can be made up to suit almost 
 any purpose. 
 
 The contract can be made exclusive, 
 or non-exclusive. 
 
 It may be confined strictly to a time 
 limit in which to make the sale. 
 
 It may provide that the commission 
 shall be all the excess obtained by the 
 agent over a certain amount. 
 
 It may reserve the privilege to the 
 owner of making a sale without being 
 bound for the commission. 
 
 It may provide for a flat commission 
 of so many dollars. 
 
 It may eliminate the exchange portion 
 if not desired to exchange. 
 
 In short, any conditions agreed upon 
 may be inserted, having due regard to 
 the laws as set forth in this article, care 
 being taken to preserve the general form 
 of language and the specific promises to 
 pay and perform. 
 
 If the seller is a corporation, the au- 
 thority of the agent must be by virtue of 
 a resolution of the board of directors. 
 The officers, as such, have no power to 
 dispose of the property of the corpora- 
 tion without being authorized so to do. 
 It is incumbent upon the agent to ascer- 
 tain if his contract of employment is
 
 186 THE LAW OF REAL ESTATE 
 
 properly authorized; otherv\ase there 
 could be no recovery for his services. 
 See the same subject in the chapter on 
 "Contracts of Sale of Real Property." 
 
 CONTRACT OF EMPLOYMENT OF AGENT. 
 
 I HEREBY AUTHORIZE and empower the 
 (Out AVest Realty Company) to sell, or exchange, 
 and to make and execute in my name, as my 
 sole and exclusive agent, a contract of sale or 
 exchange for the folloirving described lot, piece, 
 or parcel of land, situate, lying and being in the 
 (city of Redlands, county of San Bernardino, 
 state of California), and more particularly de- 
 scribed as folloT\s, to ^vit: 
 (Describe property sufficiently to identify It.) 
 
 Improvements 
 
 Encumbrances 
 
 Leases 
 
 Saifl sale to be made upon the follovring terms 
 and conditions: 
 
 (Here insert terms In detail.) 
 
 And in case the said (Out AVest Realty Com- 
 pany) shall make a sale or exchange of the 
 above described property, upon the said terms 
 and conditions, I agree to pay tbem a commis- 
 sion of (five per cent) on the first one thousand 
 dollars, and (t^o and one-half per cent) on bal- 
 ance of amount realized from said sale or ex- 
 change; and In the event of a sale or exchange 
 of said property by said (Out West Realty Com- 
 pany), at a less or greater amount, or on differ- 
 ent terms than as stated above, T\ith my consent 
 I agree to pay tlie same commission upon the 
 amount received as agreed upon above. 
 
 This agreement is for the term of (four 
 months) from date, and thereafter until it is 
 abrogated or vrithdraivn in ^vriting. 
 
 All expenses of advertising said property to 
 be paid by ( ). 
 
 I also agree, Tvithin (thirty days) after a eon- 
 tract of sale Is made according to the terms 
 hereof, to furnish a certificate of title from a 
 reputable abstract company, and then, upon the 
 fulfillment of said terms and conditions, to exe- 
 cute and deliver to the purchaser, his assigns
 
 THE LAW OF REAL ESTATE 187 
 
 or representatives, a i^uod and sufficient grant 
 
 deed of said property. 
 
 I am tlie owner of said property. 
 
 (Signature ) 
 
 (Address > 
 
 (Dated at ) 
 
 Form of Employment of Agent and 
 Agreement of Exchange. — The following 
 form authorizes the employment of the 
 agent in negotiating the exchange, pro- 
 vides also for the acceptance of the offer, 
 and payment of commissions. There 
 may be witnesses or not, as the parties 
 choose. It is better to write the accept- 
 ance on the same paper as the offer, al- 
 though it may be on a separate sheet. 
 The agreement to pay commissions may 
 be in a separate instrument also, if de- 
 sired, but it must state very definitely 
 the particular transaction and the terms 
 upon which the commissions are to be 
 paid. 
 
 In the absence of any agreement to the 
 contrary, it is usually lawful for the 
 agent to demand commissions from both 
 parties to an exchange. 
 
 AGREEMENT FOR EXCHANGE OP REAL 
 
 ESTATE 
 THIS AGREI3MENT witnessetli: That (I Ja- 
 cob Jackson), am tlie owner of the following 
 described first piece of property, situate, lying 
 and being In the (city of Monrovia, county of 
 Los Angeles, state of California), and more par- 
 ticularly described as follows, to wit: 
 
 (Give description here, same as in deed),
 
 188 THE LAW OF REAL ESTATE 
 
 T\-hlch I desire to exchange for the follo-vrlng 
 described secoud piece of property owned by 
 (Jereniiah Johnson), situate, lying and being in 
 the (city of Conipton, county of Los Angeles, 
 state of California), and more particularly de- 
 scribed as follows, to wit: 
 
 (Here describe second piece of property suffi- 
 ciently to identify it), 
 upon the teruis aud conditions as set forth be- 
 low, to wit: 
 
 (Here set forth in detail the terms of the ex- 
 change.) 
 
 Messrs. (AVoodrow & \Vilson) are hereby au- 
 thorized to act as my agents in negotiating an 
 exchange, and I hereby agree that if they shall 
 secure an acceptance of the proposition to ex- 
 change the above described property on the 
 above terms that 1 will, within (thirty days) 
 thereafter, furnish a certificate of title from a 
 reputable abstract company, showing the said 
 property to be free and clear of all encumbrance, 
 except (state encumbrance here, if any), and 
 then execute and deliver a good and sufficient 
 grant deed conveying title to the property first 
 above described to the said (Jeremiah Johnson), 
 his assigns or representatives. I also agree to 
 allow a reasonable time for the furnishing of a 
 certificate of title of the second of the above 
 described properties, and a good and sufficient 
 grant deed conveying the same. 
 
 And it is further agreed with said (Woodro^r 
 & Wilson) that w^hen they have secured an ac- 
 ceptance of the proposition to exchange the 
 above described property on the above terms, 
 I will then pay them the sum of (so many dol- 
 lars) as commission aud compensation for such 
 services. 
 
 (Signature ) 
 
 (Dated at ) 
 
 ACCEPTANCE OF OFFER TO EXCHANGE 
 PROPERTY. 
 
 THIS AGREEMENT witnesseth: That (Jere- 
 miah Johnson) owner of the second piece of 
 property described in the within Instrument, 
 hereby accepts the proposition of exchange 
 made therein, and upon the terms and conditions 
 stated therein, and agrees, within (thirty days), 
 to furnish a certificate of title from a reputable 
 abstract company, showing the said property to
 
 THE LAW OF REAL ESTATE 189 
 
 be free and clear of all encumbrance, except 
 (Ntate encumbrance here, If any> and then, upon 
 the fulfillment of said ternis and conditions, to 
 execute and deliver a ^rood and sufflcient grant 
 deed of said property to the said (Jacob Jack- 
 son), his assigns or representatives. 
 
 And I further agree to pay Messrs. (AVoodrovr 
 & AV'ilson) the sum of (so many dollars) as 
 commission and compensation for their services 
 In making said exchange. 
 
 ( Signature ) 
 
 (Dated at )
 
 INDEX 
 
 CHAPTER I. 
 WHAT IS REAL, PROPERTY. 
 
 Civil code definition, page 5. 
 
 What is land, 5. 
 
 Minerals, oils, gases, 8. 
 
 Alluvion, avulsion, 9. 
 
 Islands, 10. 
 
 Trees on property line, 10. 
 
 Things affixed to land, 12. 
 
 Growing crops, 13. 
 
 Houses, barns, sheds, etc., 16. 
 
 Fixtures, 19. 
 
 Things appurtenant to land, 25. 
 CHAPTER II. 
 OW NERSHIP AXD CONTROL, OF REAL. PROP- 
 ERTY. 
 
 Property rights of husband and wife, 27. 
 
 What is husband's separate property, 28. 
 
 What is wife's separate property, 28. 
 
 Community property, 30. 
 
 Management and control of community pro- 
 perty, 30. 
 
 Conveyance of separate and community pro- 
 pertj^ 31. 
 
 Necessity of wife's signature to convey- 
 ance, 32, 
 
 Holding property as joint tenants, 33. 
 CHAPTER III. 
 CONTRACTS OF SALE OF REAL PROPERTY. 
 
 ]Must be In writing, 37. 
 
 Contract by corporation, 42. 
 
 Contract by minor, 43. 
 
 Sale of wife's property by husband, 44. 
 
 Construction of contract, 45. 
 
 Form for contract, for cash, 47. 
 
 Form for contract, for part cash, 50. 
 
 Form for contract, with mortgage, 52. 
 
 Form for contract, on installments, 57. 
 
 Form for contract, by corporation, 54. 
 
 Form for contract, option, 61.
 
 INDEX 191 
 
 Forms for assignment of contract, 65. 
 
 Form for contract of exchange, 66. 
 
 Form for acceptance of agreement of ex- 
 change, 68. 
 
 Contract binds seller to execute convey- 
 ance, 62. 
 
 Recording contract, 63. 
 
 Assignment of contract, 64. 
 CHAPTER IV. 
 TRANSFER OF REAL. PROPERTY. 
 
 Description of property, 70. 
 
 Consideration, 71. 
 
 Warranty, 72. 
 
 Form for grant deed, code, 74. 
 
 Form for grant, bargain and sale deed, 74. 
 
 Form for warranty deed, 7.^. 
 
 Form for quitclaim deed, 77. 
 
 Form for deed of gift, 78. 
 
 Form for deed by corporation, 79. 
 
 Form for joint tenancy deed, right of sur- 
 vivorship, 80. 
 
 Forms for restrictions in deed, 83. 
 
 Form for power of attorney, 92. 
 
 Form for revoking power of attorney, 93. 
 
 Forms for acknowledgment of deeds, 87, 88. 
 
 Acknowledgment of instruments, 85. 
 
 Recording deed, 89. 
 
 Power of attorney to make transfer, 90. 
 
 Deed by minor, 94. 
 
 Witnesses to deed, 94. 
 
 Seals, 95. 
 
 CHAPTER V. 
 LANDLORD AND TENANT. 
 
 When lease must be in writing, 98. 
 
 Lease by agent, 99. 
 
 Lease by minor, 100. 
 
 liimit of term of lease, 100. 
 
 Computing term of hiring, 101. 
 
 Payment of rent, 102. 
 
 Default in rent, 103. 
 
 Raising the rent, 103. 
 
 Renewal of hiring, 106. 
 
 Renewal of lease, 107. 
 
 T'^rmination of lease, 113. 
 
 How lease may be terminated, 114. 
 
 Termination of hiring, 117. 
 
 Penalties and damagts, 123. 
 
 Demanding possession of leased premises, 
 124. 
 
 Surrender of lease, 126.
 
 192 INDEX 
 
 Forfeiture of lease, 126. 
 
 Unlawful detainer, 130. 
 
 Form for notice of raisin? rent. lo5. 
 
 Form for notice to pay rent, 127. 
 
 Form for notice to perform covenants, 128. 
 
 Form for landlord's notice to quit, 119. 
 
 Form for tenant's notice of intention to quit, 
 
 120. 
 Form for notice demanding possession at 
 
 end of term, 125. 
 Form for lease, 144. 
 Forms for covenants in lease, 146. 
 Form for farm lease, 157. 
 Forms for assigrnment of lease, 157. 
 Manner of serving notices, 131. 
 Use of force in eviction, 132. 
 Duty of tenant to notify landlord, 133. 
 Effect of change of ownership of leased 
 
 premises, 133. 
 Payment of taxe?. 134. 
 Removal of fixtures, 134. 
 Repairs, 136. 
 Nuisances, 140. 
 Waste, 141. 
 Leases, 142. 
 
 Lease by corporation, 152. 
 Recording lease, 152. 
 Assignment of lease, 154. 
 Subletting lease, 158. 
 Witnesses to lease, 161. 
 Seals, 161. 
 
 CHAPTER VI. 
 
 REAIi ESTATE AGENTS. 
 
 Contract of employment must be in writing, 
 164. 
 
 Contracts between agents, 168. 
 
 '^"hen agent is entitled to commissions, 169. 
 
 When agent is not entitled to commissions, 
 178. 
 
 When must bring buyer and seller together, 
 179. 
 
 Extension of time to find purchaser, 181. 
 
 Exclusive agency, 181. 
 
 Extent of agent's authority, 182. 
 
 Revocation of agency, 183. 
 
 Form for contract of employment, 186. 
 
 Form for agreement of exchange, 187. 
 
 Form for acceptance of agreement of ex- 
 change, 188.
 
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