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II Subsequent Possession

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					I.   First Possession                                                p.   1

        A. By Capture                                                pp. 17 - 23
                                                                     pp. 27 – 32
             Pierson v. Post
                  o Post pursuing a fox on uninhabited lands when he was intercepted by
                      Pierson, who knowing Post was in pursuit, killed the animal first and
                      possessed it
                  o Rule: Ownership of wild animals established by capture
                  o Mortally wounding an animal is enough to constitute capture
                           Called rule of constructive possession
                  o A property right can be acquired only if the hunter occupies it
            Keeble v. Hickeringill
                  o P owner of decoy pond to capture ducks, D fired gun on his own land
                      to scare ducks and prevent P from capture
                  o Rule: A person may not maliciously prevent another from capturing
                      wild animals in the pursuit of his trade
                  o Ct held for P because P’s business on his land was lawful, prohibited
                      interference with pursuit when intermeddler not attempting to capture
                  o Ratione soli-ownership of wild animal bc presence on claimant’s land
                           Discourages trespassing
                           Constructive possession
                                   Landowners are regarded as the prior possessors of
                                      any animals ferae naturae on their land, until the
                                      animals take off
                  o First in time- Principle that he who first takes possession to
                      unclaimed property takes title
            Animus revertendi
                  o Wild animals are free for capture if they escape unless they have
                      developed an animus revertendi- habit of returning- in which case
                      they are treated as domestic animals
            Pets- domestic animals relationship with owners doesn’t end if escape and
              doesn’t create new property rights to finder
        B. By Creation
              1. Property in One’s Persona                            pp. 69 – 81
                       No property rights in human bodies
                       Moore v. Regents of the Univ. of CA
                              o D removed P’s spleen and retained it for research. As a
                                  result of research, D established a cell line from Moore’s
                                  cells and obtained a patent for it
                              o Rule: A doctor has a duty to disclose the extent fo his
                                  research and economic interests in a patient’s body parts.
                                  Human body parts are not property such that may be
                                  converted
               o Moore no property claim to his cells but dr breached
                   fiduciary duty to him by not disclosing intent of cells
                        Moore had no interest because no case law that
                            says person retains prop interest in human organs,
                            CA statute limits patient’s control over excised
                            body parts,
               o Bundle of rights- right to use, possesses, exclude and
                   transfer/sell. In this case discussion on who has right to
                   sell or gift the spleen or body parts in general
         Right to Include/Right to Exclude
               o Jacque v. Steenberg Homes
                        Landowner sought punitive damages after a
                            developer delivered a mobile home across the
                            landowner’s property without permission
                        Rule: Punitive damages may be imposed for
                            intentional trespass to property
                        Individual landowner has strong interest in
                            protecting his land from trespass
                        Has right to exclude and exclusively enjoy
                            property without invading rights of another
                        Nominal damage wouldn’t deter trespasser
                        Private landowners should feel confident that
                            wrongdoers will be punished and less likely to
                            resort to self help remedies
               o State v. Shack
                        D entered Tedesco’s property to give legal aid to a
                            migrant farmworker. D refused to depart upon
                            Tedesco’s demand and is prosecuted for trespass
                        Rule: Property rights may not be exercised so as
                            to endanger the well being of others
                        First amendment allows D to enter property to
                            distribute information
                        State law bars Tedesco from using land to
                            endanger wellbeing of others, that there is a public
                            policy of aiding migrant farm workers who are
                            poor and disenfranchised
                        Right to exclude must yield to society’s desire to
                            aid, since delivering legal/social services, no tres
2. Introduction to Intellectual Property                pp. 51 – 56
         Competition favorable but common law had protects against
           unfair methods of competition: (1) prohibiting the deception of
           customers as the origin of products (2) prohibiting improper
           means of obtaining information
         International News Service v. Associated Press
               o INS copied news that Assoc. Press gathered
                              o Rule: Where a company has expended resources in
                                  creating news and information, the creator can exclude
                                  others from copying it until its commercial value as news
                                  has passed away
                              o Misappropriation
                              o P invested time and resources in the creation of news, it
                                  can prevent others from copying it until its commercial
                                  value as news has passed away
                          Cheney Brothers v. Doris Silk Corp.
                              o D copied a fashion design from P. All such designs have a
                                  short life
                              o Rule: Unless the common law or the patent or copyright
                                  statutes give protection from appropriation, a person’s
                                  property interest is limited to the chattels which embody
                                  his creations
                              o Permissible to copy designs and distinguished from INS
                                  on the ground that recognition of an unfair competition
                                  claim in the context of news-gathering would not create a
                                  monopoly in the production of news but that a law
                                  prohibiting any imitation of a good would set up an
                                  impermissible monopoly
                              o Ideas cannot be protected by common law or copy law
                          Smith v. Chanel
                              o Ct held perfume company could claim in ads that its
                                  product was the equivalent of pricey Chanel No.5
                              o Perfume is unpatented, so right to copy it
                                       For the life blood of competition
                                       A large expenditure of money doesn’t create
                                           legally protectable right, can’t monopolize the
                                           public’s desire for unpatented product
                              o Important public interest by offering comparable goods at
                                  lower prices

II.   Subsequent Possession

         A. By Find                                                 pp. 95 – 112
             Owners who lose their personal property retain their ownership rights unless
               they intentionally relinquish them
             Finders has superior right to possess lost objects in preference to everyone
               but the true owner, but they must hand them over to true owner if demanded
                   o Lost property finder merely acquires the right to possess it
             If personal property intentionally abandoned by original owner, then the one
               who finds becomes owner
                   o Abandoned only when owner intends to relinquish ownership and
                       engages in some type of action to demonstrate that intent
        o Finder becomes owner
   Armory v. Delamirie
        o Armory found a jewel and took it to D’s jewelry shop. D refused to
            return the jewel
        o The finder of lost property has a title superior to all but the true owner
                 Prior possessor rule
                         Protects owner who can’t prove true owner
                         Protects individuals who entrust goods to others
                         Protects the expectations of prior possessors who
                            expect to prevail
                         Promotes peaceable possession and discourages
                            stealing
        o Finder of prop doesn’t acquire an absolute title, true owner has this
        o Trover- a suit to recover the value of the plaintiff’s chattel that D has
            converted… P waives right to return of the chattel and insists that D
            be subjected to a forced purchase…have to pay the price of a jewel of
            the finest water if D didn’t produce jewel and prove it wasn’t finest
        o Question of who has the better title….relative
   Trespassing finder
        o Landowner would prevail against trespasser, split between trespassing
            finder and subsequent possessor of the object
        o CL- Grant finder rights against subsequent possessors
        o MT- deny possessory rights to those who obtained possession
            illegally
   Finder v. landowner- Cts divided…However, a chattel found in a private
    place, one not generally open to the public may be granted to owner of land
    rather than the finder
   Hannah v. Peel
        o Awarded brooch to the finder rather than the landowner when
            landowner was not physically occupying the property and the finder
            turned the brooch over to the police in order to make it available for
            recovery by the true owner
        o Did because conduct commendable and meritorious and because
            landowner never been in physical possession
        o Bridges v. Hawksworth
                 Bag of money left in a shop in an area accessible to general
                    public
                 Superior right went to finder because shop owner never
                    possessed the bag and found in area open to public- CL
        o South Staffordshire Water Co. v. Sharman
                 Servant found 2 rings on landowner’s land while working for
                    landowner. Superior title goes to the landowner- MT- Finder
                    worked for landowner and by employing servant, the
                    landowner exercising control over the part of land where rings
                    found
       o Elwes v. Briggs Gas Co.
                Prehistoric boat found in land leased by D
                Boat belonged to lessor
                Discourages employees from reporting lost article
       o Rules from cases:
                1. landowner possesses everything attached to or under his
                   land
                        discourages trespassers from coming onto land in
                            search of treasure
                2. landowner doesn’t necessarily possess which is unattached
                   to his land
       o Brooch not attached to land…chooses to follow Bridges case
       o Rewarding Hannah for meritorious conduct
   McAvoy v. Medina
       o A customer of the shop placed his wallet on the counter, but
           neglected to remove it. P found the walled
       o Rule: A finder has no title to property that is mislaid
       o When property mislaid, not lost, the shop owner has duty to safeguard
           the property until true owner returns…finder never gains title to
           mislaid property
       o Bridges v. Hawkes is distinguishable because property not voluntarily
           placed somewhere and forgotten, reather there just lost
       o Promotes goal of property law to return lost property to true owner
           because true owner will likely retrace his steps and return to shop, so
           more efficiently return mislaid property to true owner
       o Hard to decide if lost/mislaid and individuals retrace steps for both
   Treasure Trove
       o English common law – belonged to the king…if treasure hidden with
           intent to reclaim then went to king, abandoned went to finder
       o American law- treated as other found property as either lost, mislaid,
           or abandoned…usually gives to finder as long as not trespassing
                Rejects law of treasure trove- unsuitable for modern
                Finders working for someone, that someone gets
       o Benjamin
                Money found in wing of old airplane by inspector
                Money hadn’t been lost, found mislaid property, possessed by
                   the owner of the plane
                Not concealed long enough to be a treasure trove and not
                   abandoned bc ppl don’t abandon that much money
       o In re Seizure
                Money found in gas tank of car, which had been seized by
                   government because used to transport drugs, sold to buyer
                Mechanic hired to fix fuel problem found cash and informed
                   the Agency, which claimed right against buyer
                Ct found for buyer as the first person to find the money,
                      mechanic buyer’s agent
         o Terry
                  Box of money hidden in a ceiling discovered by contractors
                    working on a motel
                  Possession awarded to motel owner for reasons of Benj.
         o Ships lost in territorial waters
                  US and individual states asserted clams to shipwrecks
                    embedded and constructively possessed
                  If abandoned, finder entitled to possession of recovered goods
                    but not title; finder entitled to a reward for saving the goods
                    under the law of salvage
    Bond’s record setting home run ball
         o At time ball hit, was abandoned property (previously mlb’s) and first
             person who cam in possession of ball became its new owner
         o First guy had significant but incomplete control and disrupted by
             wrongful acts, which D wasn’t a part of….
         o Both men have superior claim to ball against rest of world
         o Applied equitable division
B. By Adverse Possession                                     p. 112
      1. Theory and Elements                                 pp. 112 – 136
          Theory
                 o Method of transferring interests in land without the consent of
                    the prior owner, even in spite of the dissent of such owners
                 o Rests on social judgments that there should be a restricted
                    duration of assertion of aging claims and passage of
                    reasonable time period should assure security to a person
                    claiming to be an owner
                 o Adverse possessor may acquire title at such time as an action
                    of ejectment by the record owner would be barred by statute
                    of limitations
                 o Policy conclusion that the property in question should belong
                    to the longstanding possessor and that the record title holder
                    should no longer be legally entitled to retain her ownership
                    rights
                 o When a non-owner occupies property owned by another, the
                    owner is entitled to bring an action in ejectment to recover
                    possession. If the owner waits too long, the statute will run,
                    depriving the owner of the legal right to sue to recover the
                    land from the wrongful possessor
                 o Once the statute of limitations runs out and the title holder has
                    lost the right to eject, no one has a superior right to possess
                    the property than the adverse possessor, converting the adv.
                    Pos to the rightful title holder
                 o Adverse possessor has the right to exclude everyone but the
                    true owner
       o Possession is 9/10 of the law….don’t carry around written
          documentation of our ownership
   Elements
       o Actual possession
              possessor must physically occupy the premises in
                some manner
              must treat the property as if she owns it
              ordinary use to which the land is capable and such as
                an owner would make of it
              easiest way to demonstrate is to build a fence around
                the land and use it in a visible manner
                     will usually get all inside fence
              In the absence of a fence, the extent of area acquired
                is determined by the extent of the occupation and use
                     So could potentially only get half used
              Boundary disputes: AP or prescriptive easements
                     Result will depend on extend of his use of a
                        strip of land and whether his actions could
                        reasonably have been interpreted as asserting
                        general powers over the strip
              Uses of the land made of the land need only be typical
                of the uses made by other owners of like land in the
                area
       o Open and notorious
              Must be sufficiently visible and obvious to put a
                reasonable owner on notice that her property is being
                occupied by a non-owner with the intent of claiming
                possessory rights
              record owner is charged with seeing what reasonable
                inspection would disclose
              Enclosing land by a fence or a wall and occupying a
                house is universally recognized
              Rural land
                     The requirement that land use be typical of
                        what other owners would do with the land
                        may suggest that lesser acts should be
                        sufficient to establish actual possession in a
                        rural area while the requirement that the use
                        be open and notorious may push in the
                        direction of requiring more extensive
                        development
       o Exclusive
              the use is of a type that would be expected of a title
                holder of the land in question and that the adverse
         claimant’s possession cannot be shared with the true
         holder
      might need to show that record owner has been
         effectively excluded although occasional entry by title
         holder may not defeat the claim
o Continuous
      adverse possessor must exercise control over the
         property in the ways customarily pursued by the
         owners of that type of property
      owner’s general in holding managing and caring of
         the property
      Howard v. Kunto- adverse possession established over
         a parcel of land used seasonally as a summer cabin
      Tacking- succeeding periods of possession by
         different persons may be added together
              Most states require that successors can add the
                  original adverse possessor’s holding period
                  only if they are in privity with one another,
                  meaning that the original adverse possessor
                  transferred title to the property to the
                  successor
o Adverse or Hostile
      A.p. must treat property as their own and must not
         result from the title holder’s permission
      The state of mind of the ap and the state of mind of
         the record title holder
              Most states focus on title holder and find
                  adversity when the possession is without the
                  title holder’s permission
              Other states require both so the ap must
                  exhibit a particular attitude
      All states require record title holder’s state of mind
         must not be permissive
              When a possession begins as permissive, it
                  stays permissive until the permission is
                  formally withdrawn. Wrongful occupation
                  only when owner revokes permission and asks
                  the licensee to leave and lic refuses
              Needs explicit revocation or explicit statement
                  by ap to titleholder that intends to oust the title
                  holder form his proberty
      Tests
              Objective test based on possession (most)
                       o Act only, intent or subjective attitude,
                           comments irrelevant
                Subjective test based on a claim of right
                Intentional dispossession
                Good faith
o For the Statutory Period
      Varies widely from five years to 40 years
      Some define different periods depending on whether
          the adverse possessor has paid property taxes on the
          property in question while some whether the adverse
          possessor has color of title, or whether occupation in
          good faith
      Many states will toll the statute of limitations if the
          title holder is under a disability such as infancy,
          insanity or incompetence so the statute begins to run
          only after the disability ends
o ***Claim of right
      way of expressing the requirement or hostility or
          claim of title
      Many courts require this
      Possessor intends to appropriate use the land as his
          own to the exclusion of all others
      Must act like owner; must believe she is owner or
          assume land is her own
                Can be implied by conduct
      AP will not be established if there is evidence that the
          adverse possessor knew where the boundary was and
          although possessing land beyond that border, never
          intended to claim it as her own
      Some require intentional dispossession
                Must be aware occupying prop owened by
                   another and must intend to oust
      Some require good faith
                Only innocent possessors who mistakenly
                   occupy owned property by someone else can
                   acquire ownership through AP
o ***Under Color of Title
      Something in writing which at face value, professes to
          pass title but which does not do it, either form want of
          title in the person making it or from the defective
          mode of conveyance that is used
      Defective title
      Courts may use description in the title as conclusive
          evidence that the land area was being adversely
          possessed
      May especially help to establish possession of part of
          the property
   Cases
       o Van Valkenburgh v. Lutz
             D occupied P’s land by building a one bedroom shack
               on it, by cultivating a garden on it, and by storing
               rubbish on it. In another action to establish right of
               way across the land, D admitted that the land
               belonged to P
             Rule: In order to acquire title by AP, possession must
               be actual, it must be under claim of title, and the land
               must be either enclosed or sufficiently improved
             Holding: Garden only occupied a small portion of the
               lots, the Lutzes garage only encroached on land by a
               few inches. Law in NY required protected enclosure,
               cultivation, or improved land…not met because not
               enclosed, the shack was too small, garden
               insubstantial, and placing rubbish on land isn’t an
               improvement. Also, NY requires claim of title and
               Lutz admitted it to be P’s land
       o Mannillo v. Gorski
             Property owner sought to enjoin the alleged trespass
               of an adjoining landowner whose pathway encroached
               15 inches and who claimed title to the strip by adverse
               possession
             Rule: Possession need not be knowingly and
               intentionally hostile, but it must be notorious enough
               to give the true owner actual or constructive notice of
               the encroachment
             Entry and continuance of possession under the
               mistaken belief that the possessor has title to the lands
               may exhibit the requisite hostile possession
             Maine doctrine requires intentional hostility and
               punishes the honest, mistaken entrant
             Connecticut doctrine- mistake doesn’t negate host.
               The key is the true owner’s neglect to recover
               possession which doesn’t hinge on mistake or intent
             Minor border encroachment doesn’t satisfy open and
               notorious requirement, must be clear enough to be
               immediately visible. Shouldn’t have to survey
             Harder for AP but court may require original owner to
               convey land upon payment of fair value by ap
       o Boundary disputes
             If uncertainty between neighbors as to true boundary,
               an oral agreement to settle matter is enforceable if
               subsequently accept for a long period of time
                    Doctrine of acquiescence that long enough acqu. is
                     evidence of an agreement to fix boundary line
                  Doctrine of estoppel- one neighbor makes
                     representations about or engages in conduct that tends
                     to indicate the location of a common boundary and
                     other neighbor then changes her position in reliance
         o Mistaken improvers
                  CL- anything built on the wrong land, whether in
                     good faith or not, became prop of landowner
                  MT- ease the plight of innocent improver by forcing
                     conveyance of land to improver…Other gives
                     landowner option to buy improvement
                  If inconvenience caused by innocent encroachment so
                     minor then relief might be denied, however if
                     encroachment takes up substantial part of land,
                     removal might be ordered notwithstanding the good
                     fatith
                  2 part test
                           P has to show that it would suffered
                             irreparable harm if removal were denied
                           But even if irreparable, still relief might be
                             denied under a balancing test that compares
                             the hardship to the plaintiff if removal is
                             denied to the hardship to the defendant is
                             granted…If      precludes    removal      then
                             encroaching party acquires either title or an
                             easement in land and pays damages
2. Mechanics                                        pp. 136 – 144
    Howard v. Kunto
         o Three adjacent landowners each held deeds that did not
             coincide with the actual legal descriptions of the physical
             properties
         o Rule: Tacking on successive possessions of property is
             permitted for purposes of establishing AP if the successive
             owners are in privity
         o Uninterrupted possession doesn’t require constant, year round
             occupancy but rather such control over prop as ordinarily
             marks the conduct of owners in general in holding, managing,
             and caring for property of a similar nature and condition
         o Tacking is permitted because current possessor is in privity of
             estate with each successive possessor by operation of the deed
             running between them
    Disabilities
         o Statute of limitations is extended if specified disabilities are
             present
           o An action to recover the title or possession of real prop shall
               be brought within 21 years after the cause accrued, but if a
               person entitled to bring such action, at the time the cause
               accrues, is within the age of minority, of unsound mind, or
               imprisoned, such person, after the expiration of 21 years from
               accrual, may bring such action within ten years after such
               disability is removed
           o Disability must exist when the cause of action accrued
     Against government
           o CL- doesn’t run against government
           o American rely on this rule as well as state const provisions
           o Some states permit ap against gov, some same as private,
               some for longer period, some only as proprietary capacity
3. of Chattels                                          pp. 144 – 151
     Personal prop can be acquired by AP
     Rules---which ones do we need to know? Is there a CL/MT
           o Conversion rule
                     Starts running stat of lim when property wrongfully
                        taken and owner disposed of the property
           o Discovery rule
                     Seen in O’Keefe
           o Demand rule
                     A cause of action for replevin against good faith
                        purchaser of a stolen chattel accrues when the title
                        holder makes demand for return of the chattel and the
                        person in possession of the chattel refuses to return it
                     Replevin- action to recover possession of personal
                        property, similar to ejectment claim to discover
                        possession of real prop
     Purchaser cannot obtain good title from a thief
     Could convey good title if good faith purchaser for value, meaning a
       buyer not on notice that matters are amiss
           o Like if artist entrusted painting to gallery for appraisal, could
               transfer good title to good faith buyer if in the ordinary course
               of business
     O’Keeffe v. Snyder
           o Three of O’Keefe’s paintings were stolen from an art gallery.
               Thefts were not reported to anyone
           o Rule: The statute of limitations is tolled if the owner of stolen
               chattel makes diligent efforts to locate and recover the lost
               chattel
           o In no circumstances can a thief transfer good title
           o Kid of thief (doesn’t know how got paintings) acquires
               voidable title from his dad, has the power to transfer good
               title to a good faith purchaser under the UCC
                  o If Snyder not good faith purchaser, of if kid didn’t have
                      voidable title, Snyder may still acquire title by AP
                  o However, statute of lim sometimes tolled to avoide harsh
                      results
                  o Owner of chattels might no tknow property stolen or know
                      who AP is
                  o Discovery rule: Upon discovery of theft the statute of
                      limitations is tolled if the true owner of the chattels makes
                      diligent efforts under the circumstance, to locate and recover
                      chattels
                           Police or registry sometimes
                           Burden on P
                  o Policy motivating AP
                           After a long time, titles should be settled
                           The efficient use of land should be encouraged
                           Good faith purchaser gets bad end of deal
                           Replevin- an action to regain possession
                  o Native American graves
                           Native American sacred objects must be returned
                              upon requires by Indian tribe
                           Unless museum can show “right of possession” that
                              obtained with voluntary consent of an individual or
                              group that had the authority of alienation
C. By Gift                                                     pp. 157 – 159(802)
    To make a gift of personal property, donoer must transfer possession to the
      donee with the manifested intention to make a gift to the donee
           o Need intent and delivery!!!
    Feudal in origin-livery of seisin
    Symbolic delivery involves handing over something symbolic of property
      given like written instrument declaring gift of subject matter
    CL- if object can be handed over, it must be….required intent to transfer title,
      delivery of the property, and acceptance by the donee
    MT- valid constructive delivery when evidence of donative intent is concrete
      and undisputed, where every indication of intent of donor to make present
      transfer
    Bailments
    Good faith purchasers
           o Ordinarily, an owner does not lose title to her property when it is
              stolen even if it is subsequently purchased by a buyer who was not
              aware of the theft
           o The thieft’s title is void, transfer of such title transfers nothing
           o May induce buyers to investigate or to act reasonably to discern
              whether the seller really owns the goods she sells
           o Exception in UCC –exception that thief can’t convey good title
                   If owner entrusts an item to a merchant who deals in goods of
                                 that kind, merchant has power to transfer all rights of the
                                 entruster to a buyer in the ordinary course of business
                      o If wrongful sale and dispossession by merchant when owner induced
                        to sell personal property by fraud, title is voidable, not void
                             Seller may sue to regain title from buyer who defrauded her
                             However, if that buyer has resold the property to a good faith
                                 purchaser who was not aware of the fraud, title cannot be
                                 reclaimed by the original owner and the seller is relegated to
                                 damages

III. System of Estates           Wendel, Possessory Estate & Future Interest Primer

          A.   Introduction                                            pp.    1-5
          B.   The Fee Simple Absolute                                 pp.    6 - 15
          C.   The Fee Simple Defeasibles                              pp.   16 - 35
          D.   The Finite Estates                                      pp.   36 - 48
          E.   Remainders: Vested vs. Contingent                       pp.   49 - 76
          F.   Alternative Approach to Analyzing                       pp.   76 - 86
          G.   Variations on the Executory Interest                    pp.   87 - 107
          H.   Distinguishing Condition Precedents from
                   Condition Subsequents                               pp. 108 - 119
          I.   Life Estate Defeasibles                                 pp. 120 - 126
          J.   Miscellaneous Common Law Rules                          pp. 127 - 137
          K.   Class Gifts                                             pp. 138 - 152
          L.   The Rule Against Perpetuities                           pp. 153 - 180

IV. Co-ownership                                                       p. 275

          A. Common Law Concurrent Interests                      p. 275
               1. Types, Characteristics, Creation                pp. 275 – 280
                   Tenants in Common
                         o Separate but undivided interests, undivided share of whole
                         o Interest of each is descendible and may be conveyed by deed
                            or will
                         o No survivorship rights
                   Joint Tenancy
                         o Have a right to survivorship
                         o Considered single owners, owns undivided whole
                         o When JT dies, nothing passes to surviving JT and the interest
                            is extinguished…can’t pass interest by will
                         o Four unities-CL
                                 Time
                                          Interest of each acquired or vest at the same
                                            time
                                 Title
                             All must acquire title by same instrument or
                              by joint AP…
                             JT can never arise by intestate succession or
                              other act of law
                     Interest
                           All must have equal undivided shares and
                               identical interests measured by duration
                  Possession
                           Each must have right to possession of the
                               whole. After JT created, one JT can
                               voluntarily give exclusive possession to other
                               JT
          o CL- if all 4 didn’t exist then tenancy in common created
                  If existed at time of JT created but later severed, JT
                      turns into tenancy in common
                  Any one jt can convert JT into tenancy in common
                      unilaterally by conveying his interest to a third party
                      severing JT between 3rd party and one or more of the
                      unities
    Tenancy by the Entirety
          o An be created only by husband and wife
          o Considered to hold as one person at CL
          o Neither can defeat the right of survivorship of the other by a
             conveyance to a 3rd party, can’t partition alone
          o Divorce terminates tenancy, usually become ten in common
    Default
          o CL- dislike dividing- joint tenancy
          o MT- Tenancy in common unless intent for JT
          o Default for married is –T entirety, still presumption now for
             states that have it
    Avoidance of probate
          o JT common particular between husband and wife because
             practical equivalent of will without probate
          o Probate costly and property tied up for month
          o JT avoids probate because no interest passes on the joint
             tenant’s death bc decedent’s interest vanishes @ death
    Unequal shares…during JT
          o CL- would be tenants in common
          o Ignored by courts, ok for 1/3 to 2/3 with JT intent
2. Severance of Joint Tenancies                       pp. 280 – 289
    Riddle v. Harmon
          o Mrs. Riddle did not want her husband to get their land
             automatically when she died, so she tried to sever the joint
             tenancy without him
          o Rule: A joint tenant can unilaterally sever a joint tenancy
              without the use of an intermediating third party by conveying
              his or her property interest to himself or herself
          o Tradition of requiring two separate parties to transfer property
              was rooted in the Eng CL ceremony of livery of seisin
                    Hand a symbol of land to grantee and relinquish
                    Archaic rule, replaces by granting deeds and titles
          o Found ways around this rule like transfer to third party to
              transfer back to yourself or give to son as a trust for her use
              and benefit (use strawman)
          o JT can be terminated by any number of means, livery of seisin
              out
    Harms v. Sprague
          o As a favor to Sprague, John mortgaged his and William’s
              land, without telling William, and later devised everything to
              Sprague when he died
          o A mortgage does not sever a joint tenancy, and the surviving
              joint tenant takes the interest of a deceased joint tenant
              without being encumbered by the mortgage
          o A lien on a JT’s intrest doesn’t sever absent conveyance by
              deed
          o In mortgage, title of mortgagee(lender) really only exists
              between the mortgagee and the mortgagor (borrower), so no
              title transfer occurs, only a lien on mortgagor’s interst
          o Because mortgage didn’t sever the JT, inherent right of
              survivorship still exists
          o Property right of the deceased JT Harms was extinguished at
              the moment of his death and at that moment the lien of the
              mortgage ceased to exist
3. Joint Tenancy Bank Accounts                        pp. 289 – 291
        True joint tenancy
              o Deposit 5000 intending present of ½ plus survivorship
                   rights to the whole sum of the deposit
        Payable on death
              o O may intent to make gift to A only on survivorship rights
        Convenience
              o O may intend that A only have power to draw on the
                   account to pay O’s bills and not have survivorship rights
        Litigation with intent of the depositor
              o Agreement signed at bank not controlling
        Majority of jurisdictions holds that the surviving JT takes the sum
          remaining on deposit in a joint account unless there is clear and
          convincing evidence that a convenience account was intended.
              o Burden of proof is on persons challenging surviving JT
        During lifetime of the parties the presumption is that the joint
          account belongs to the parties in proportion to the net contribution
          of each party
4. Relations Among Concurrent Owners                   p. 291
       Each tenant owns an equal interest in all of the fee and each has
          an equal right to possession of the whole. Neither JK nor TIC can
          do any act to prejudice of his cotenants
      a. Partition                                     pp. 291 – 300
              o The privilege of each co-owner to transform a concurrent
                 estate into estate held in severalty
              o Available to any JT or TIC, unavailable to TIE
              o Delfino v. Vealencis
                       Delfino owned 99/144 on the property and wanted
                          a residential development while Vealencis owned
                          45/144 and wanted to keep her garbage business
                          on it
                       Rule: A partition by sale should only be ordered
                          if the physical attributes of the land in question are
                          such that a partition is impracticable or
                          inequitable, and the interests of the owners would
                          be promoted by a partition by sale
                       TIC here
                       Ct not required to order a physical partition while
                          partition in sale only when interest of all the
                          owners would be better promoted by such a sale
                       Property rectangular with Vealencis on extreme
                          west side, so a physical partition of property into 2
                          separate tracts clearly practicable here
                       Otherwise V would have to sell home and
                          business…so partition in kind ordered (preferred
                          by courts)
      b. Sharing Benefits & Burdens                    pp. 300 – 310
              o Spiller v. Mackereth
                       After another tenant vacated their building, Spiller
                          used it as a warehouse, and Mackereth demanded
                          he pay rent or vacate half of the building
                       Rule: In the absence of an agreement to pay rent,
                          a cotenant in possession is not liable to his or her
                          cotenants for the value of his or her use and
                          occupation of the property unless there is ouster of
                          cotenant
                       Ouster- beginning of the running of the statute of
                          limitations for AP or the liability of an occupying
                          cotenant for rent to other cotenant
                       Liability for rent- ouster is evidenced when an
                          occupying cotenant refuses a demand of other
                          cotenants to be allowed into use and enjoyment of
         the land
      Mackereth told him to pay rent, didn’t state any
         desire to enter the premises so Spiller, as an
         occupying tenant, can occupy whole property until
         another cotenant asserts possessory rights
      Spiller didn’t ouster with new locks because no
         evidence that trying to keep Mac out
o Note:fiduciary duties
      Usually if cotenants family
      Where one cotenancy buys in concurrently owned
         property at a mortgage forclosure or tax sale and
         asserts superior title against cotenants. Cts here
         usually compel buyer to hold superior title for
         benefit of all providing they reimburse buyer
      Claim of AP by cotenant in exclusive possession
              When cotenants kindred courts often treat
                  cotenant in poss as fiduciary and can claim
                  AP only where his claim of sole
                  ownership is unequivocal and notorious
              AP against cotenants not easily achieved
o Swartzbaugh v. Sampson
      Mr. Sw leased part of some land for a boxing
         pavilion, but Mrs. Sw never signed the lease and
         wants to cancel it
      Rule: A JT, during the existence of a joint estate,
         has the right to convey or mortgage his or her in
         terest in the property, even if other JT objects.
      Each JT has an equal interest and has equal right
         to possession of whole property
      Each can mortgage an equal share of prop, pledge
         their interest, or lease
      Even a lease to all of the joint property by one
         joint tenant would be a valid and supportable
         contract as far as the lessor in joint prop is
         concerned
      Sampson had right of possession of Mr. Sw’s prop
      A JT cannot recover exclusive possession of joint
         property from a cotenant, since Sampson has same
         right as Mrs., she can’t cancel lease
      Mrs doesn’t need to fear prescription because
         lessee can’t generally dispute a landlord’s title or
         claim AP while holding conditions of lease
      Mrs can attempt to prove ouster if Sampson resists
         her attempts to enter, but only entitled to ½
         reasonable rental val of land
       Prescription- a person’s acquisition of the right to
        use property by virtue of his or her continuous use
        of that property
o Accounting for benefits, recovering costs
      In all states, a cotenant who collects from 3rd
        parties rents and other payments arising from the
        co-owned land must account to cotenants for the
        amount received
      Absent ouster, the accounting usually based only
        on actual receipts, not fair market value
      A cotenant paying more than his share of taxes,
        mortgage pmt, or other necessary carrying charges
        generally has a right to contribution from other
        cotenants, at leas up to the amount of the value of
        their share in the property
      Necessary repairs
             A cotenant making or paying for them has
                no affirmative right to contribution from
                the other cotenants in the absence of an
                agreement
      Improvements
             Cotenant has no right to contribution from
                other cotenants for expenditures for
                improvements and no credit given during
                accounting or partition act
             General rule that interests of the improver
                are to be protected if can be accomplished
                without detriment to interests of others
             If prop physically divided, the improved
                portion awarded to improving cotenant
             If physical partition impossible or would
                result in injustice, the property is sold and
                the proceeds distributed in such a way as
                to award the improver the added value
             Alt remedy- if phys partition possible but
                would jeopardize the interests of
                improver, divide the property but order
                payment (owelty) from noncontributing
                cotenants to the improver in an amount
                equal to the former’s share of the
                enhanced value of the property from
                improvements
             If improvements cost more than they yield
                in sales or rental, improver bears full
                downside risks, when improvements
                                               increase value beyond costs, improver gets
                                               upside
         B. Marital Interests - Overview                          pp. 310 – 312
                English- husband and wife have separate property; ownership given to
                   spouse who acquires the property
                Continental system of community property
                        o Husband and wife in marital partnership and should share their
                           acquests equally
                ADD STUFF HERE FROM WENDEL

V. Leaseholds: The Law of Landlord and Tenant                        p. 361
        A. Leasehold Estates                                         pp. 363 – 373
                Leasehold is a transfer of the right of possession of specific property
                  either for a definite or an indefinite period
                Term of Years
                      o Estate that lasts fro some fixed period of time or for a period
                          computable fixed on calendar dates
                      o CL- no limit on the number of years permitted, some statutes
                          limit duration though
                      o Can be terminable earlier upon happening of some event/cond
                      o No notice of termination necessary because know from outset
                      o Eviction proceedings required to remove holdovers
                      o Death of landlord or tenant has no effect on duration
                                Leasehold passes to heirs or devisees, same for LL’s rev.
                      o Landlord’s future interest called a reversion
                      o Term of years and landlord’s reversion are alienable unless the
                          lease agreement prohibits transfer of the tenant’s leasehold
                      o Stat of frauds over 1 yr, okay if oral for 1 yr or less
                Periodic Tenancy
                      o Period for some fixed duration that continues for succeeding
                          periods until either the landlord or tenant gives notice of
                          termination
                      o Ex: month to month, yr to yr
                      o CL- half a yr’s notice is required to terminate a yr
                                If don’t, can be held over for another period
                                Notice must terminate tenancy on final day of period
                                Notice equal to the period to terminate periodic tenancy of
                                  less than a year (1 month for month to month)
                      o MT
                                Many states have shortened the length and required month
                                  to month termination after 30 days notice
                      o Death of landlord or tenant has no effect on duration
                      o Usually if pay monthly, considered month to month
                      o Transferable and inheritable unless agreement provides otherwise
                      o Stat of frauds requires in writing for over a year, under a year up
           to 1 yr oral is okay
   Tenancy at Will
       o No fixed period so land as both landlord and tenant desire
       o Unilateral power to terminate a lease can be engrafted on a ToY
           or PT
       o Terminates when one party terminated it or at death of one of the
           parties
       o Not transferable because at will
       o Transfer of landlord’s title also terminates a tenancy at will
       o MT- require period of notice, 30 days or time equal to interval
           between rent payments, to terminate
       o Resembles license because terminable at any time by either party,
           but distinguished that tenant given right to possess property
       o Also may be found if tenant holds on after the end of a prior
           tenancy with consent of the landlord and haven’t reached
           agreement as to term of payment
   Garner v. Gerrish
       o Donovan leased house to Gerrish (D) for as long as D wished
       o Rule: If a lessee has the option of terminating a lease when he
           pleases, a determinable life tenancy is created
       o CL- rule so long as lessee shall please is at will of both lessee and
           lessor, originating in livery of seisin, so didn’t allow creation of a
           determinable life tenancy without livery, considered prop law
       o MT- livery abandoned and Ct looks at terms of agreement to
           determine type of lease created
       o Here, terms indicate D would have a determinable life tenancy
       o Tension between K law and property law
                Leasehold viewed as prop law in early CL, so premises
                   were conveyed without warranty as tot eh condition and
                   breach of agreement by landlord didn’t excuse tenant
                   from paying rent
       o Quiet enjoyment- a covenant, implied if not expressly
           incorporated into a lease, which states that a lessor shall not
           interfere with the lessee’s ability to enjoy the premises
   Tenancy at Sufferance: Holdovers
       o Occurs when a tenant remains in possession (holds over) after
           termination of the tenancy
       o Tenant liable for fair rental value of the property during the period
           of occupation
       o Notice not generally required, self help not allowed, and court
           proceedings required to dispossess tenant
       o CL- landlord has two options:
                (1) eviction (plus damages) or
                        may recover possession from her, usually by
                            summary eviction proceedings
                                 LL recovers fair rental val of premises during
                                  wrongful occupation
                        (2) consent (express or implied) to the creation of a new
                          tenancy (for up to one yr)
                               If you accept rent from holding over tenant, held
                                  to have consented to a renewal or extension
                               CL- Can hold tenant to a new tenancy, sometime
                                  term of years
                               MT- treat new tenancy as periodic
                               Eviction- a legal proceeding to remove a non-
                                  owner from possession
                               Holdover- one who stays in possession of leased
                                  premises longer than he is entitled
               o Crechale & Polles, Inc. v. Smith
                        Smith(D) held over past the expiration of his lease.
                          Crechale decided to treat D as a trespasser. Later, he
                          decided to hold him over for a new term
                        Rule: Once a landlord elects either to treat a hold-over as
                          a trespasser or to hold him to a new term, he may not
                          change his mind
                        Since P initially elected to treat him as a trespasser, he
                          can’t hold him over to a new term
                        Since Crechale accepted rent for the first month over, he
                          has effectively held Smith over on a month-to-month bais.
                           However, he cannot hold Smith over for a new term
                        In most jurisdictions, holdin over gives rise to a periodic
                          tenancy; in the balance it results in a term
B. The Lease                                                   pp. 373 – 376
        A lease transfers a possessory interest in land, so it is a conveyance that
           creates property rights. Usually contain a number of promises
           (covenants) such as a promise by tenant to pay rent or promise by
           landlord to provide utilites, thus a lease is a K too with K rights
        CL- Property
        MT- K
        Statute of Frauds
               o Leases for more than one year must be in writing
               o All but a few permit oral leases for a term of 1 yr or less
        Bargaining power
               o Leases can be wordy, full of clauses to handle contingencies
               o Landlords use form leases, std docs, adhesion K
                        Seller tryin to avoid costs of negotiating and drafting
C. Selection of Tenants                                        pp. 376 – 384
        CL- landlords could discriminate
        Fair Housing Act
               o Exempts religious orgs and private clubs, old ppls houses
              o Nothing from 3604 Applies to any single family house, if doesn’t
                 own more than 3, or rooms intended to be occuptied by no more
                 than 4 families if owner actually maintains and occupies one
              o 3604- because of race, color, religion, sex, familial status,
                 national origin
                       refuse to sell or rent
                       discriminate against
                       to make print or publish with any preference or limit (plus
                         handicapped)
                       to represent that any dwelling is not available for
                         inspection, sale, or rental when in fact available
                       profit induce or attempt to induce to sell or rent by
                         representations
              o 3604 still- To discriminate in sale or rental because of handicap
                 of buyer or renter or a person residing or intending to after sold
              o discriminatory motive need not be proved in order to make out a
                 prima facie case, proof of discriminatory effect is sufficient
       Civil Rights Act of 1866
              o All citizens shall have the same right as enjoyed by white citizens
                 to inherit, purchase, lease, sell, hold, and convey real and personal
                 property
                       Bars all reacial dscrim private or public
                       Requires proof of intentional or purposeful discrimination
D. Delivery of Possession                                      pp. 384 – 388
       Hannan v. Dusch
              o When P’s lease was to begin, D failed to evict holdover tenant
              o Rule: A landlord has only a duty to deliver the right to possession
                 of the premises to a tenant, not actual possession
              o Once tenant takes possession, he is responsible fro ejecting a
                 trespasser
              o English rule
                       Landlord must place tenant in possession-actual and legal
                       Only of first day does landlord have duty of actual
                         conveyance
              o American Rule
                       Landlord must give tenant the right to possession
              o Although English rule good because tenants contract for
                 possession and not for a lawsuit and landlord better position to
                 assess whether current tenant is in fact a holdover
              o Must go with American because it is unfair to hold the landlord
                 liable for the wrong of another
              o For commercial- corp seeks not just possession, but also some
                 form of title and has more resources to vindicate its rights
              o Family- land will be used as a residence and primary concern of
                 tenant is possession, so lease more viewed as K where landlord
                  has duty to deliver possession
              o MT- moved strongly in direction of landlord duty to deliver the
                  right to possess the property but also to deliver actual possession
                  of the premises
E. Subleases and Assignments                                   pp. 388 – 402
       Ernst v. Conditt
              o Rogers, the original lessee, transferred his interest to COnditt
              o Rule: In determining whether an assignment or a sub-lease has
                  occurred, the court looks to the intentions of the parties
              o An assignment allows the land owner to recover from the
                  assignee, a sublease doesn’t allow the land owner to recover from
                  sublessees.
              o CL-
                       An assignment conveyed the entire interest in the lease, it
                           left nothing to the original lessee
                       A sublease granted an interest that was less than that
                           owned by the original lessee, the original lessee retained a
                           reversionary interest
              o MT- look to intention of the parties to ascertain sub or assign.
              o Under CL, Conditt liable to Ernst because took Rogers’ entire
                  interest, fact that the modified K between Rogers and Ernst held
                  Rogs personally liable to Ernst doesn’t matter because liability of
                  Rogers to Ernst not determined by an agreement between Rogers
                  and Conditt
              o MT- Conditt liable to Ernst because under their terms, Rogers
                  retained no reversionary interest; he conveyed all he had, so
                  assigned lease to
              o Privity of K- a relationship between parties that arises because
                  they have entered into a contract with one another
              o Privity of Estate- a relationship between parties hat arises because
                  they share an interest in property
                       If the transfer is a sublease, no priv of estate exists
                           between complaintants and D, and D can’t be lieable to
                           complainants on the covenant to pay rent
                       If assignment, priv of contract does exist between
                           complainants and D then D would be liable directly as
                           primarily for the amount of the judgment
              o Actual language doesn’t help, although said sublet, still an assign.
       Note: Whether sub or ass, if primary lease between landlord and original
          tenant is prematurely terminated
              o If landlord exercises a power to forfeit the primary lease because
                  of some breach by original tenant, then the landlord is entitled to
                  possession as against sublessees and assignees
              o If original tenant merely giver up the primary lease voluntarily
                  surrendering it, the rights of possession of sublessees and the
                 assignees remain intact
       Subrogation- If T liable to L, then T steps into L’s shoes and can sue
         anyone L can sue
       Kendall v. Ernest Pestana
             o Pestana demanded increased rent in exchange for consent to
                 assign a lease
             o Rule: A lessor may not unreasonably and arbitrarily withhold his
                 or her consent to an assignment
             o The law favors free alienability of property, including leasehold
             o Alienability may be restricted by K so as to protect lessor
                      These construed agaist lessor
             o Majority rule- allows lessor to arbitrarily withhold consent
             o Growing trend- lessor may withhold consent only when he as a
                 commercially reasonable objection to the assignment
                      Public policy favors free alienability
                      Relationship between lessor and lessee become more
                         impersonal and as a result lessor just as likely to find a
                         high quality tenant
                      Lessor’s interests are protected by the fact that lessee
                         remains contractually liable to lessor
                      A lease increasingly viewed as a K, so lessor has
                         discretion in withholding consent and lessor can withhold
                         only in good faith
                              Property is ill suited for proposed use
                              Proposed use is illegal
                              The proposed use requires altering the premises
                              Can’t withhold consent solely on personal taste
                                 not may he demand higher rent in exchange for
                                 consent
             o Landlord has the duty to mitigate damages
F. The Tenant Who Defaults                                  p. 403
      1. Tenant in Possession                               pp. 403 – 410
          Landlord may sue tenant for unpaid back rent and or recover
             possession of the premises (eviction)
                 o LL entitled to recover the fair rental value of the premises
                     during the wrongful occupation, usually measured by rental
                     amount under prior agreement
          Landlord can try and maintain leasehold relationship with tenant and
             attempt to treat the wrongful holdover as an offer on the aprt of the
             tenant to enter a new leasehold
                 o Hold tenant to a new term or periodic tenancy
                 o Entitles to get rent same as before
                 o MT- to allow to new tenancy as periodic tenancy
                          CL- term of years to a new term
          MT- landlord’s covenants in the residential rent context are
      dependent on the tenant’s covenants
          o If tenant breaches obligation to pay rent, landlord relieved of
             his obligations under the lease
    Berg v. Wiley
          o Wiley changed the locks on property that he leased to Berg-P
          o Rule: A landlord may not use self-help to regain possession
             of his land
          o Evidence that Berg didn’t abandon premises
          o CL- landlord could use self help if
                  Landlord is legally entitled to possession, such as
                      when tenant is hold over
                  The landlord’s means of entry are peaceable
          o In terms of peaceable means
                  Public policy discouraging self help, so legislature
                      created summary proceedings to help landlord regain
                      possession quickly
                  Leg provided for treble damages for forced entry
          o Wiley’s entry not peaceable because troubled history between
             the two and violence didn’t erupt bc Berg not present when
             locks changed
          o MT- unless tenant has abandoned or surrendered the
             premises, a landlord may not use self-help and must resort to
             judicial process to regain possession
                  Applies to commercial and residential
    Note: Summary Proceedings
          o Intended to be just- a quick and efficient means by which to
             recover possession
          o Requires only a few days notice to tenant prior to bringing
             eviction action
                  However now landlord not maintaining habitable
                      conditions allows tenant self help measure of rent
                      withholding
2. Tenant Who Has Abandoned Possession               pp. 410 – 421
    Sommer v. Kridel
          o Sommer failed to make efforts to re-let an apartment when
             Kridel abandoned it
          o Rule: A landlord is under a duty to mitigate damages by
             making reasonable efforts to re-let an apartment wrongfully
             vacated by the tenant
          o Majority Rule- no duty to mitigate
                  Based on property view of lease and forecloses any
                      control of the property by the landlord
          o MT- Now viewing a lease as a K, apply K principle:
                  Landlord must mitigate damages…derived from
                      considerations of fairness
                    Unfair to let a landlord sit idly by and watchdamages
                     mount when he can prevent them
                  Can’t argue that he will lose opportunity to rent
                     another if he required to rent the frist apartment that
                     has been abandoned because each apartment is unique
                     and no reason to believe that a tenant who wished to
                     rent the apartment abandoned would have been
                     willing to rent a another vacant apartment
                  In fact, there was a request for the abandoned one
        o Rule: If landlord has many vacant apartments, he must treat
             the abandoned apartment as one of his vacant stock and make
             reasonable efforts to re-let it. Since landlord in better position
             to demonstrate that his efforts were reasonable, he shall have
             the burden of showing reasonable efforts to re-let
   Jusitification for no mitigation rule
        o Tenant purchased interest in real estate, landlord shouldn’t be
             forced into relationship if doesn’t wish to
        o Efforts on the part of a landlord to mitigate damages by
             reletting abandoned premises might be held to constitute an
             unwilling acceptance of the surrender offered by the
             defaulting tenant
                  Not requiring mitigation encourages economic and
                     physical waste
   Surrender
        o When tenant fails to pay and moves out, ll can
        o (1) sue to recover poss and back rent and cost of finding
             replacement
        o (2) Accept tenant’s surrender of the lease
                  Terminates a lease, provided that landlord accepts
                     tenant’s offer.
                  If he does, surrender effected, and extinguishes the
                     lessee’s liability for future rent, but not for accrued
                     rent or for past breaches
                  May still sue immediately for damages based on
                     tenant’s anticipatory breach of the rest of the lease
                          Damages based on the difference between the
                             reserved rent and the fair rental value of the
                             premises
        o (3) relet premises on tenant’s account
                  Refuse to accept surrender
                  seek to find another person to move in and pay rent
                  Treat as implied offer to end the relationship, but
                     refuses to accept that offer, thereby maintaining
                     tenant’s contractual obligation to pay rent for the rest
                     of the term
                           Treats conduct as an implied representation that the
                            tenant wishes to be relieved of rent liability and
                            authorizes landlord to reduce tenant’s obligation by
                            finding replacement tenant
                          Tenant liable for difference if new rent lower
                  o (4) Wait and allow rent to accrue, then sue
                          Allowed in CL
                          MT- usually not available, must mitigate damages
                          Must reasonable efforts to find a new tenant
                          then limits damages to what would have suffered had
                            she acted reasonably
                  o Surrender may come about explicitly
                          Express acceptance
                  o If tenant abandons an implied offer to surrender
                          Turns on intent of landlord in retaking possession
                          Consider whether the landlord’s actions are
                            inconsistent with or repugnant to continuation of the
                            original lease
                                 The length of the new tenancy
                                 Whether alterations have been made
                                 The new rent, etc are suggestive
                  o Landlord’s remedies and security devices
                          If tenant doesn’t pay, landlord has right to sue for
                            back rent and for damages occasioned by breach and
                            if tenant in possession, the landlord may also
                            terminate the lease and recover possession
                          Doctrine of Anticipatory breach
                                 If landlord terminates because of breach of
                                     lease, he may recover, in addition to back rent
                                     and other damages, the present value of the
                                     amount by which the unpaid rent for the
                                     balance term exceeds the amount of such
                                     rental loss that the lessee prove could be
                                     reasonably avoided provided lease either
                                     expresses such a remedy or landlord has relet
                                     in mitigation
                          Absent such a statute, it appears the anticipatory
                            breach remedy is generally unavailable, at least as to a
                            failure to pay rent
                          In case of tenant’s abandonment, repudiation is clear
                            cut and anticipatory breach will apply if jurisdiction
                            extends that contract doctrine
G. Duties, Rights and Remedies                              p. 421
      1. Landlord’s Duties; Tenant’s Rights:                pp. 421 - 422
               CL- tenant took premises as is and landlords under no obligation
   to warrant fitness…
 MT- if landlord breaches covenant of quiet enjoyment,
   constructively evicting the tenant
a. Quiet Enjoyment & Constructive
   Enjoyment                                   pp. 422 – 431
       o Reste Realty Corp. v. Cooper
                Whenever it rained, the basement that Cooper was
                   leasing flooded
                Rule: A tenant may vacate premises and
                   terminate the lease if his quiet enjoyment is
                   interfered with by the landlord
                Abandonment not unjustified because although
                   inspected premises the driveway and surfacing not
                   considered part of it
                She didn’t waive her right to quiet enjoyment
                   because she signed a second lease with a promise
                   to remedy flooding
                A covenant of quiet enjoyment is implied in a
                   lease and when an act or failure to act renders the
                   premises unsuitable for the purpose for which it
                   was leased, this convenant wis breached and if
                   this occurs, tenant may terminate if she chooses
                   by vacating
                Cooper vacated within a reasonable time under the
                   circumstances
       o Doctrine of quiet enjoyment-tenant is entitled to
          possession free of interference from landlord, and
          warrants that premises will be fit for the purposes for
          which it was leased…protects tenants by ensuring
          premises are clean, safe, and enjoyable
       o Caveat emptor- let the buyer beware- doctrine that buyer
          takes what he buys as si and should be aware of defects-
          CL
                Exceptions
                        Short term leases of furnished dwellings:
                           implied duty to make and keep premises
                           habitable
                        Duty to disclose latent defects that
                           landlord knew or should have known and
                           not apparent on reasonable inspection to
                           tenant
                        Maintain common areas used by all
                           tenants in building
                        To         abstain      from       fraudulent
                           misrepresentations as condition of leased
                      premises
                  Sometimes- to abate immoral conduct or
                      other nuisances that occurred on property
o   Constructive eviction- obligation to pay rent dependent
    upon undisturbed possession by landlord and if
    disturbance so substantial as to amount to eviction, and
    thereafter tenant abandons premises, was as though tenant
    was evicted and tenant relieved from paying rent
o   Partial eviction-actual and constructive
         If there is an actual eviction, even though from
             part of the premises only, tenant relieved of all
             liability for rent notwithstanding continued
             occupation balance
                  Actual eviction if bar tenant from
                      premises, removes belongings, etc
         If constructive partial eviction, most jurisdictions
             say tenant is not relieved of paying rent
         Partial Const eviction allowed bc
                  Don’t know what courts would determine
                      if justifies abandonment
                  Hard time finding a suitable, affordable
                      place to live
                  Implied warranty of habitability authorizes
                      tenants to move out and repudiate the
                      lease or to stay and stop paying rent if LL
                      rails to maintain premises in habitable
                      manner
o   Tenant remedies
         If implied cov broken, landlord could be remedied
             by suing for damages equal to difference between
             the value of the property with and without the
             breach
         If the breach is substantial, tenant may leave on
             theory of constructive eviction and relieved of any
             liability for future rent and can recover damages to
             compensate for losses realized while in possession
             and for loses resulting from a higher rent for
             equivalent replacement premises
o   Illegal lease
         Violating housing codes
         Does not apply if code violations develop after the
             making of the lease
         Minor technical violations do not render a lease
             illegal, nor do violations which the landlord had
             neither actual nor constructive notice
                Tenant under an illegal lease is a tenant at
                 sufferance, and the landlord is entitled to the
                 reasonable rental value of the premises, given
                 their condition
b. Implied Warranty of Habitability          pp. 431 – 441
    CL- didn’t exist, transfers of estate in land, no implied
      representations
    MT-Suitable for purpose of habitations: clean, safe, sanitary
          o Must comply with housing code
          o Tenant must just provide notice to LL and LL has a
             reasonable time to fix
    Hilder v. St. Peter
          o St Peter leased an apartment unit for habitability to
             Hilder. Though Hilder informed St. Peter of these
             defects, he failed to remedy
          o Rule: There is an implied warranty of habitability in
             every residential lease
          o CL- caveat emptor, landlord no duty to make
             habitable unless covenant in the lease ebcasue
             leasehold an estate in land…land was essence of
             conveyance, not the house
          o MT- tenant leases land for a safe, sanitary dwelling,
             not for arable land, and city dweller unable to repair
             complex living units
                  LL in much better position to repair
                  Due to changes exists in every residential
                     lease implied covenant of habitability and
                     cannot be waived by the tenant
          o To check for breach, can look to local municipal
             housing code, or min state code stds
          o Once warranty breached, tenant must notify landlord
             and allow him time to remedy defect
          o If not remedied, tenant may pursue rescission,
             reformation, and damages
                  Damages- difference between value of the
                     residence as warranted and value of residence
                     as defective
          o Tenant may recover for discomfort and annoyance, he
             may repair defect and deduct from expenses of rent,
             and may withhold rent until damages calculated
                  Must show L notice of defect and failed to
                     repair
                  Defect existed during time rent w/held
          o Burden of bringing suit will then be on landlord who
             can better afford to bring the action
         o P may pursue punitive damages
                  If willful and wanton
                  Fraudulent
   Termination of tenancy
         o Recission of K
         o Right to stop paying rent and abandon premises,
            moving out before end of lease and repudiate lease
         o Must be material…materially affects health/safety
   Tenant who has paid rent and remained in possession later
         o Sues for reimbursement and damages claiming breach
            of implied warranty of habitability
   If remains in possession but withholds rent
         o Tenant remains in possession to withhold rent until
            landlord fixes problem
         o Landlord sues for possession and back rent and tenant
            asserts breach of the warranty as a defense
         o Implied warranty of hab used as a defense and will
            constitute defense both to back rent claim and the
            claim for possession
         o Rent is reduced partially or totally
   Rent abatement
         o If LL sues to evict the tenant for nonpayment for back
            rent, court may reduce the rent owed during the period
            of violation
         o Reduced from the actual rent to the fair rental value of
            premises subject to the unlawful condition
   Ways to determine damages
         o Difference between value of the dwelling as
            warranted and the value of the dwelling as it exists in
            its defective condition
         o Diff between agreed rend and fair rental value of
            premises as they were during their occupancy in
            unsafe, unsanitary, or unfit condition
         o Agreed rent is reduced by percentage equal to the
            percentage of lease-value lost by the tenant in
            consequence of the LL’s breach
         o Can sue for any real damages to person or property
            out of violation
         o Could sue for injunction requiring landlord to remedy
            the problem
         o Repair and deduct from rent
   Retaliatory Eviction
         o CL- Landlords unlimited to terminate PT and TAW
            upon proper notice
         o MT- forbid retaliatory action by landlords
                                              Must allow sufficient time to find other
                                               suitable housing
                                             Burden on LL to show that given tenant
                                               reasonable opportunity to procure other
                                               housing
                  2. Tenant’s Duties; Landlord’s Rights                 pp. 441 – 444
                             A duty not to commit waste is breached if a tenant makes
                                such a change as to a vital and substantial portion of the
                                premises as would change its characteristic appearance, the
                                fundamental purpose of erecting or the sues contemplated as
                                would affect the very realty itself extraordinarily
                             Usually to occupy as well
                             Duty to repair- Tenant has an implied duty at CL to make
                                minor repairs, a duty which arose out of his durty not to
                                commit waste. Repairs as would keep buildings windtight and
                                watertight thust preserving property
                                    o MT- no longer makes sencese
                             Depends on language of agreement
                                    o Covenant tha excepts fiar waer and tear amounts to no
                                        more than the common law duty
                                    o To keep in good repair enlarges tenant’s obligations
                             If leased premises destroyed
                                    o CL- had to keep paying
                                    o MT- no, consideration of K gone, frustration of
                                        purpose
                             Landlord’s Remedies
                                    o Seek to recover possession of the property from the
                                        breaching tenant
                                             Can sue immediately for damages
                                    o May seek to bind tenant to a new leasehold
                                    o Interested in obtaining back rent
                                    o Fair rental values of the property during the time the
                                        holdover tenant wrongfully occupies the premises
                                    o

VI. The Law of Servitudes                                           pp. 667 - 668
          5 types:
                o Easement- A’s Right to enter B’s Land
                o Profit- A is given right to enter upon B’s land and remove something
                   attached to the land
                o Negative easement- A right to enforce a restriction on the use of B’s land
                o Covenant (real or equitable servitude)
                        A is given right to require B to perform some act on B’s land
                        A is given right to require B to pay money for the upkeep of
                          specified facilities
A. Easements                                             p. 668
      1. Background; Terminology                         pp. 668 – 671
              Affirmative easements
                    Give someone right to enter or perform an act on the
                       servient land
              Negative easements- Forbids landowner from doing something on
               his land
              Easement Appurtenant
                    Gives that right to whomever owns a parcel of land that
                       the easement benefits
                    Benefits the easement owner into the use of land
                       belonging to that owner
                    Runs with the land such that the benefit fo the easement
                       will pass to any future owner of the dominant
                       estate(benefited by easement) and the burden will be
                       imposed on any future owner of the servient estate (parcel
                       on which easement passes)
                           o Must intend to run with the land
                           o In writing
                           o Owner of servient estate purchased with notice of
                               easement
                    Require both a dominant tenement (estate) and a servient
                       tenement
                    Easement attaches to and benefits the dominant tenement
                    Usually transferable, transferring along with dominant
                       tenement to successive owners
                    Can be made personal to the easement owner only and not
                       transferable to others
                    Default easement if unclear
              Easement in gross-
                    Gives the right to some person without regard to
                       ownership of the land
                    Benefits the easement owner personally rather than in
                       connection with use of land which the person owns
                    Because it doesn’t benefit any land, involves no dominant
                       estate, only a servient estate
                    May be alienable or inalienable
                    “personal” but they are personal only in the sesnse that
                       hey don’t attach to any parcel of land owned by the
                       easement owner
                    Transferability raises problems
                           o When commercial in nature then okay
                           o If residential/personal then no
                           o Restatement says yes
                          Character suggests intended to be a private
                           accommodation to benefit a particular person for
                           noncommercial purposes
                  If not sure, default is easement appurtenant
   Profits
       o subset of easement law, so either a license or
            easement coupled with right to take off land. If
            revocable then license with take off, it not then
            easement…Have to take property off of servient
            estate
       o Universally held to be transferable
       2. Creation                                           pp. 671 – 709
             Within statute of frauds so requires written instrument signed by the
               party to be bound thereby
             Exceptions of fraud, part performance, and estoppel, may under
               certain circumstances be created by implication or prescription
             Willard v. First Church of Christ
                   o McGuigan sold Petersen a lot with an easement allowing
                       nearby churchgoers to part on it, but Peterson sold it to
                       Willard without mentioning the easement
                   o Rule: A grantor can reserve an easement in property for a
                       person other than the grantee
                   o CL- reservation of interest not possible
                   o MT- carry out intent of grantor
                            Original grantee likely paid a reduced price on the
                              property for allowing certain use to continue
                            Willard not prejudiced bc Church used it during time
                              he was trying to buy it
                            Interests of the grantors outweigh interests the
                              grantees may have if the old rule was followed
                            Most jurisdictions today however say cannot hold an
                              easement in favor of a third person because 3rd party
                              would have no interest in the land being conveyed
                              from which the third party could reserve an easement
                              in the first place
                            Can avoid problem of reservation by making explicit
                              grants of given property and of the desired easement
                              in one deed
                   o Reservation- provision in a deed creating some new servitude
                       which did not exist before as an independent interest
                   o Exception- provision in deed that excludes from the grant
                       some preexisting servitude on the land
             Licenses
                   o An oral or written permission given by the occupant of land
                       allowing the licensee to do some act that would otherwise be
          a trespass
       o Revocable while easement isn’t
       o Exception
               A license coupled with an interest can’t be revoked
                       Incidental to ownership of a chattel on
                          licensor’s land
               License becomes irrevocable under rules of estoppel
                       Treated as an easement
       o Holbrook v. Taylor
               Holbrook tried to block off a road on his property
                  after Taylor used it extensively while building a
                  tenant house for himself
               Rule: A license cannot be revoked after the licensee
                  has erected improvements on the land at considerable
                  expense while relying on the license
               Easement can be established by estoppel, even when
                  the person making use of the property doesn’t do so
                  adversely, but with permission of property owner
               Can’t revoke after erected improvements on the land
                  at considerable expense
               Taylor used the road with consent, or at least tacit
                  approval and used to build improvements, widened
                  road, all at own additional expense
               Oral agreement here out of the Statute of Frauds
                       Estoppel
                       Part performance
                               o Demonstrated by act of improving the
                                  property is tangible evidence that the
                                  license, or oral easement, actually
                                  exists
                               o Improvements themselves attest to
                                  presence of easements, don’t’ need
                                  oral statements
   Easement implied from a prior existing use
                       quasi-easement when basis of an apparent
                          and continuous use of a portion of the tract
                          existing when the tract is divided
                       implied to protect the probable expectations
                          of the grantor and grantee that the existing
                          use will continue after the transfer
       o Elements
               (1) two parcels were at one time in common
                  ownership
               (2) one of the parcels had derived a “benefit or
                  advantage” from the other parcel prior to the sale
                (3) This use was both apparent and continuous
                (4) continuation of the use is reasonably necessary or
                 convenient to enjoyment of the dominant estate
       o Van Sandt v. Royster
               P claimed he never granted an easement for a sewer
                 drain which connected his house to two others and
                 flooded his basement
               Rule: The implication of an easement will depend on
                 the circumstances under which the conveyance of
                 land was made, including the extent to which the
                 manner of prior use was or might have been known
                 by the parties; each party will be assumed to know
                 about reasonable necessary uses which are apparent
                 upon reasonably prudent investigation; an easement
                 may be implied for a grantor or grantee on the basis
                 of necessity alone
               A person can’t have an easement in their own land,
                 but can use a part of his land to benefit another part
                 of the land…called a quasi-easement
               Part of the land that benefits from this use is a quasi
                 dominant tenement, while the part of the land
                 burdened with the particular use is a quasi-servient
                 tenement
               Implied easement arises as an inference of intentions
                 of the parties in a conveyance based on
                 circumstances, not language
               Jones was aware of the lateral sewer drain and knew
                 that it was build for the benefit of Bailey. The
                 easement for the drain was necessary for the
                 comfortable enjoyment of her property, and an
                 easement can be implied on the basis of necessity
                 alone
               Easement will be hidden
   Easement by Necessity
       o Necessary to the enjoyment of the claimant’s land and that
          the necessity arose when the claimed dominant parcel was
          severed from the clamed servient parcel
       o Landlocked
               No prior use required
       o CL- strictly interpreted with no other access
       o Othen v. Roiser
               Othen used a roadway on Rosier’s property to access
                 the public highway, but Rosier later built a levee
                 which made the road impassable to Othen
               Rule: An easement can be created by implied
                   reservation only when it is shown that there was unity
                   of ownership between the alleged dominant and
                   servient estates, that the easement is a necessity and
                   not a convenience, and that the necessity existed at
                   the time the two estates were severed; an easement by
                   prescription can only be acquired if the use of the
                   easement was adverse
                Whole survey had been owned by Hill so unity of
                   ownership satisfied
                Roadway was merely a convenience and still have
                   been able to cross to get to the road
                        Merely because Othen’s land is completely
                           surrounded by other people’s land doesn’t
                           automatically mean Othen has a way of
                           necessity over other property
                        No easement by necessity can be implied here
                Since used by permission or license, non owner
                   cannot claim prescriptive easement bc not adverse
                If landlocked grant easement of necessity
                        Flexible by courts if necessary to make
                           effective use of land
   Prescriptive Easements
       o Acquired if the use of the easement was adverse
       o Run with the land and are binding upon subsequent owners
       o Elements
                Actual
                Use of property belonging to another
                Use to be Open and notorious or visible
                Adverse
                Exclusive
                        Different than AP
                        Claimant’s right to use the land does not
                           depend upon a like right in others
                        Can acquire even though easement also sued
                           by the servient owner
                Continuous/uninterrupted
                        Only that claimant engages in it as often as is
                           normal for an easement of that kind
       o Lost grant theory to acquire easement
                Owner of land presumed to consent or acquiesce in
                   the use….afterall thought to have granted easement
                Claimant must show that the use was not permissive
                   and also that the owner acquiesced (didn’t object)
       o In a jurisdiction not following the lost grant theory, to
           prevent a prescriptive easement from being acquired, the
               owner must effectively interrupt or stop adverse use
           o Public prescriptive Easements
                    Long continuous use by the public under a claim of
                       right
                    Landowner must be put on notice that claimed by pub
                    Beach access
           o Matthews v. Bay Head Improvement Association
                    The Public Advocate claimed that the Association
                       denied the public its rights of access to and use of the
                       public beaches during the summer season
                    Rule: The public’s right to use of the tidal lands and
                       waters under the public trust doctrine also includes
                       the right to gain access through and to sue privately
                       owned dry sand areas as reasonably necessary
                    Land covered by tidal waters belonged to the
                       soverign, but for the common use of all people
                    Includes recreational uses ruthering the general
                       welfare of the public’s right to enjoy therese
                       privileges
                    As long as reasonable acess to the sea is provided, the
                       public interest is satisfied
                    Prescriptive easement doctrine not particularly
                       successful in this application because most courts
                       assume that the public use of private beaches occurs
                       with permission ot the owners
                            For some states, customary rights allow use
                               that existed as long as anyone can remember
    Express easements
           o In writing by means of a deed
3. Assignability                                       pp. 709 – 716
       Benefits and burdens of appurtenant easements pass automatically
          to assignees of the land to which they are appurtenant, if the
          parties so intend and the burdened party has notice of the
          easement
       Where benefit is in gross, however, the benefit may not be
          assignable
       Miller v. Lutheran Conference and Camp Association
              o Miller’s executors licensed the Association to use the lake
                  without referring to Miller, who owned ¾ of the interests
                  in such rights
              o Rule: When two or more persons own an easement in
                  gross, the easement must be used as “one stock,” meaning
                  that any actions involving the easement must be made
                  with common consent of all the owners
              o No principle of law forbids an adverse enjoyment of an
                easement in gross form becoming a title by prescription
             o One user along cannot convey a share in the common
                right, such action must occur with the consent of all
                owners
             o Since Frank did not wish to grant Rufus a separate right to
                subdivide and sublicense their lake priv, it is clear Frank
                intended for them to use the rights together for their
                business, with ¼ of the proceedings going to Rufus and ¾
                going to himself
             o A transfer of an easement appurtenant, created to benefit a
                particular parcel, any transfer of title of that dominant
                parcel will carry the easement along with it
             o Easements in gross for commercial benefit are
                transferable (Miller), however personal easements in
                gross, namely those held for recreation and not for eco
                benefit, are probably not alienable
                     Distinction rests on idea of grantor’s intent
                     Grantor would not intend the holder of an
                        easement to transfer it when the easement was
                        intended for a narrow purpose benefiting the
                        holder
                     MT- E in G assignable if the parties so intend
                             Only not recreational easements
             o Easement in gross is divisible when creating instrument
                so indicates or when easement is exclusive(easement
                owner has sole right to engage in activity easement
                permits)
       MT- One stock idea largely abandoned, now easements in gross
         may be divided unless contrary to the intent of the parties creating
         the easement or unless the division unreasonably increases the
         burden on the servient estate
4. Scope                                            pp. 716 – 725
       Determined by intent of grantor: language and circumstances
       When dominant estate subdivided, the new owners of each parcel
         have a right to use the easement untless terms of easement
         provide otherwise
       Brown v. Voss
             o Vos blocked off a private road easement for parcel B after
                Brown started building a house that would sit on both
                parcels B and C
             o Rule: If an easement benefits its owner in the use of a
                particular parcel of land, an extension of the easement to
                other parcels is a misuse of the easement
             o Scope of grant look to by terms and intent
             o Right to use easement to get to parcel B, but not for C
               because parcel C was not part of the original dominant
               estate under the terms of the grant
             o Misuse because home on B and C, so despite mere
               technical misuse, still misuse
             o Voss doesn’t immediately get injunctive relief
             o Note: doesn’t’ mean easements can change over time
                    Changes in dominant parcel that can reasonably
                        be anticipated can be accommodated by the
                        easement
       Changing location of easement
             o Rule: CL-The location of an easement, once fixed by the
               parties, cannot be changed by the servient owner without
               permission of the dominant owner
             o MT- Grants servient owner the right to change the
               location of an easement, at his expense, it the change does
               not “significantly lessen the utility of the easement,
               increase the burdens on the owner of the easement in its
               use and enjoyment, or frustrate the purpose for which the
               easement was created”
       Pres Easement Limits
             o Not as broad as easement created by grant, implication, or
               necessity
             o Use must be consistent with the general kind of use by
               which the easement was created and with what the
               servient owner might reasonably expect to lose by failing
               to interrupt the adverse user
5. Termination                                    pp. 725 – 736
       Preseault v. US
             o Property owners sued the Government for an
               unauthorized taking after the Gov authorized the
               conversion of an abandoned railroad easement into a
               nature trail across the owner’s property
             o Rule: An easement is terminated by abandonment when
               nonuse is coupled with an act manifesting either a present
               intent to relinquish the easement or a purpose inconsistent
               with its future existence
             o Gov use beyond scope of easement and constitutes a
               taking of the servient tenement owner’s property
             o Easement is for that needed purpose, not a fee simple
               estate
             o Act of taking off rr track is abandonment
             o Easement isn’t terminated by mere nonuse
                    Terminate easement by abandonment…
                             (1) nonuse +
                             Acts by owner of dominant tenement
                                  conclusively     and     unequivocally
                                  manifesting either a present intent to
                                  relinquish or
                                 a purpose inconsistent with its future
                                  existence
         Release
             o Requires a writing
       Expiration
             o Lasts for only a certain duration
       Automatically
             o Lasts for only a certain duration when stated event occurs
             o Like easements of necessity end when necessity ends
       Merger
             o If easement owner later becomes owner of servient estate
       Estoppel
             o If servient owner reasonably relies upon a statement or
                 representation by easement owner
       Abandonment
             o Like Preseault
             o Non-use plus intent
             o Some say nonuse is enough if for stat. period of time
       Condemnation
             o If government exercises its eminent domain power to take
                 title to a fee interest in the servient estate for a purpose
                 that is inconsistent with continued existence of the
                 easement
       Prescription
             o If servient owner wrongfully and physically prevents
                 easement from being used for prescriptive period, then
                 easement terminated
6. Negative Easements                                 pp. 736 – 738
       Right of the dominant owner to stop the servient owner from
          doing something on the servient land
       Land use restrictions
       CL
             o Blocking your windows/light
             o Interfering with air flow to your land in a defined channel
             o Removing the support of your building-lateral=soil
             o Interfering with the flow of water in an artificial stream
       MT- American
             o Light
             o Air flow
             o Support(walls) soil
             o Water flow
             o View
                    o Solar
       7. Conservation & Other Novel Easements             pp. 738 – 740
              Conservation easements to preserve scenic and historical areas
                and open spaces
                    o Charitable gift…can’t build on land except for as stated in
                        the grant
                    o Perpetual in duration, transferable, and can be in gross
              Environmental covenants
                    o Impose activity and use restrictions on contaminated land
                        and permit the contaminated land to be developed within
                        limits imposed by these restrictions
              Façade preservation easements
                    o Preventing the façade of a house registered on the national
                        Historic Places form being altered
              Primary Residence Easement
                    o Gives home to historical society so home so can’t be used
                        as a vacation home

B. Covenants Running with the Land                        p. 740
      1. Background
         a. Real Covenants                                pp. 740 – 746
              Unlike English courts, American didn’t define privity of estate to
                include only a landlord tenant relationship
              Permitted covenants to run in favor of and against successor
                owners
              Real covenant is a promise respecting the use of land that runs
                with the land of law
              Remedy for real cov is damages in a suit of law
              Only enforceable against an assignee who has notice of it
              2 ends of a covenant that run with the estates of the land, not the
                land itself.
                    o Benefit
                    o Burden
              2 types of privity of estate
                    o horizontal
                              between the original convenanting parties
                    o Vertical
                              Privity of estate between one of the covenanting
                               parties and a successor in interest
                              Implies covenant is enforceable by and against
                               remote parties only if those parties have
                               succeeded to the original parties’ estates in the
                               land in question
                              Burden side
                                    Only enforceable against someone who
                                   has succeeded to the SAME estate
                                  So FSA to FSA, or LE to LE, never
                                   adverse possession
                         Benefit
                                Enforceable by a person who succeeds to
                                   the original promisee’s estate or to a lesser
                                   interest carved out of that estate
       Horizontal privity of estate is not required for a covenant to run at
          law to successors
   b. Equitable Servitudes                             pp. 746 – 750
       A covenant regarding the use of land that is enforceable in equity
          against subsequent possessors, even if the covenant itself is not
          enforceable at law
       Difference between equitable serv and real cov relates to the
          available remedies
              o When a real covenant is breached, the remedy is damages
                  in a suit of law
              o When an equitable servitude is breached, remedy is either
                  an injunction or enforcement of a consensual lien, which
                  secures a promise to pay money in a suit in equity
       Tulk v. Moxhay
              o Tulk had a covenant which required maintenance of a
                  garden on some land, but Moxhay later tried to put
                  buildings on it after buying it
              o Rule: A covenant will be enforceable in equity against a
                  person who purchases the land with notice of covenant
              o If Mox likely pd less for land because covenant and if
                  allowed to build would effectively received unburdened
                  land for a lower price than burdened land..inequitable
              o Burdens land itself, not the estate like in cov
              o Equitable serv requires
                       Intent for the promise to run
                       Subsequent purchaser has actual or constructive
                          notice
2. Creation of Covenants                               pp. 750 – 755
       Real covenant
              o Must be created by a written instrument signed by the
                  covenantor (within statute of frauds)
       Equitable servitudes
              o Implied in equity under certain limited circumstances
              o Cannot be obtained by prescription because arises out of a
                  promise
       Sandborn v. McLean
              o McLeans tried to build a gas station on their lot in a
                  residential district, but were enjoined from doing so by
                   their neighbors
              o Rule: An equitable servitude can be implied on a lot,
                   even when the servitude is not created by a written
                   instrument, if there is a scheme for development of a
                   residential subdivision and the purchaser of the lot has
                   notice of it
              o Most jurisdictions imply negative restrictions from a
                   common scheme, although a few strictly imply statute of
                   frauds
3. Validity and Enforcement of Covenants              pp. 755 - 773
       (1) Intent that the benefit and/or burden of the covenant run to
          successors of the original parties
              o optimally created in writing
       (2) Notice on the part of purchasers of the original promisor
              o actual notice-you actually know, read it
              o constructive notice-if on record, whole world can know
                   and charged with notice
              o inquiry notice-if don’t properly inquire charged with
                   notice
       (3) the covenant touch and concern the land
              o has to do with land
              o to avoid ppl from becoming slaves, can’t be too personal
       *** Some require(4) of vertical privity for the benefit (not
          burden) of a covenant to run in equity
       A K, can sue for damages
       Neponsit Prop v. Emigrant Industrial Savings Bank
              o Emigrant Bank took title to land previously deeded by
                   Neponsit Realty, and the Neoponsit Assoc. tried to
                   foreclose a lien contained in the earlier deed
              o Rule: An affirmative covenant to pay money for
                   improvements or maintenance done in connection with,
                   but not upon the land which is to be subject to the burden
                   of the covenant does touch and concern the land, and a
                   homeowner’s association, as the agent of the actual
                   owners of the property, can rightfully enforce the
                   covenant
              o Burden attached to the land by various owners to enjoy
                   benefit of roads, beaches, public spaces, etc
       Most cases that find a covenant doesn’t touch and concern land
          involve monetary obligations and tying arrangements
       Courts usually always consider tough and concern for covenants
          restricting use
       Wary to enforce affirmative covenants against successors
              o Requires judicial supervision
              o Impose large personal liability on successor
                             o Resembles a feudal service or perpetual rent
                             o Clogs on titles
                      CL- touch and concern needed
                      MT- discards T and C and says almost all neg and affirmative
                         covenants are initially unobjectionable and that the intentions of
                         the parties should be given effect
               4. Termination                                       pp. 786 – 798
                      Ways to terminate
                             o Expiration
                             o Release
                             o Abandonment
                             o Merger
                             o Estoppel
                             o Prescription
                             o Condemnation
                      Can be modified or terminated even without unanimous consent
                      A restrictive covenant establishing a residential subdivision
                         cannot be terminated as long as the residential character of the
                         subdivision has not been adversely affected by the surrounding
                         area, and it is of real and substantial value to the landowners
                         within the subdivision
                      A landowner in a subdivision under a restrictive covenant has the
                         right to insist upon adherence to the covenant even when the other
                         owners consent to its release
                      COMMON SCHEME. When grantor that holds 2 or
                         more lots, and conveys one with express
                         restriction on it, and the lots are so
                         situated as to bear the relation, the courts
                         will presume that the covenant was to burden
                         and benefit all of the lots in the common
                         scheme.
                                       will imply covenant, only in
                                          equitable servitude, not a real
                                          covenant,
Run Cov?
   1. Injunctive- eq. serv
        a. Notice
             i. Constructive- recording
            ii. Actual
           iii. inquiry
        b. Intent to run
        c. Touch & concerns
   2. Damages- real cov.
        a. Privity
        b. Intent to run
        c. Touch & concerns
Privity
   1. benefit
        a. horizontal – no
        b. vertical-estate any duration
             i. runs to pretty much anyone but adverse possessor
   2. burden
        a. horizontal
             i. mutual or
                   1. landlord tenant
                   2. easement
            ii. successive- grantor/grantee
        b. vertical- estate of exact same duration

				
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