Law School Outline - Property Outline2

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Law School Outline - Property Outline2 Powered By Docstoc
					Acquisition of property rights
1. First Possession: Acquisitions of Property by Discovery, Capture, and Creation First in Time doctrine – he who first occupies, has possession Relativity of Title –True owner has title relative to all the world. Possessor has title relative to all subsequent possessors in order of first to possess. Policy – disincentive for trespass and continuity of crimes just b/c 2 nd person believes the first person is not the rightful owner. Acquisition of property by capture o Capture Rule – First in time applied to animals. Pierson v. Post (He who first occupies a wild animal owns it – first to capture or mortally wound wild animal. Dissent – Rule should be that a pursuer acquires title to a wild animal if he is in the reach of the animal or if he has a reasonable prospect of capturing the animal. Policy – foxes are a public nuisance and the killing of them is in the public interest) o Ratione Soli – presence of wild animals on P’s land means that P owns the wild animals. Owner of land has constructive possession of animals on their land until the animals take off.  A person may not maliciously prevent another from capturing wild animals in the pursuit of his trade. Keeble v. Hickeringill  Every man should be able to enjoy the use of his land as he sees fit so long as the use is lawful  The capture of wildfowl in pursuit of trade is profitable; it creates wealth for the tradesman, for employees and for the nation  When animals are in the habit of returning to a person’s property, those animals are viewed as being somewhat domesticated and that person has a right to those animals. Owner thus has constructive possession of the animals. o Offspring Rule – offspring belongs to the owner of the female b/c the mother could be determined but the father cannot be. o Fugitive Resource Rule – 2 rules in U.S.  1. Either party has a right to tap into the pool and if they are concerned about what the other parties are doing, they should tap in themselves  2. Under most regulatory regimes, they require them to take out ratably.  Cannot drill under neighbor’s land -

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2. Subsequent Possession: Acquisition of property by find, adverse possession, and gift (first in time as it relates to ownership and possession)  Prior possessor rule (first in time relates to ownership and possession) – finder prevails against everyone except the true owner and prior possessors. Armory v. Delamirie (Armory found a jewel and took it to D’s shop to have it appraised) o Social goals achieved: protects an owner who cannot prove that he is the true owner; protects individuals who entrust goods to others which in turn protects social welfare; protects the expectations of prior possessors, who expect to prevail; promotes peaceable possession; protecting finders may preserve property o Economics – by protecting ownership, it encourages an efficient allocation of resources. o Subrogation – substitution of one person for another - stepping into someone else’s shoes – if finder comes in I am subrogated as to true owner’s rights. Just as true owner could have sued, now finder can sue. Substituting one creditor for another. o Hannah v. Peel. (Brooch case). Court wanted Hannah to win b/c his conduct was commendable and court probably wants to encourage the taking care of the property and maybe wealth distribution. If want landowner to win, say he had constructive possession.  A landowner possesses everything attached to or under his land and a landowner does not necessarily possess that which is unattached to his land. Used three cases:  Bridges – superior title goes to finder (bag of money left in store). Places where lost items are found make no difference – finder of a lost article is entitled to it as against all persons except the real owner. Landowner does not necessarily possess that which is unattached to his land. True owner never had COA against shop-keeper; therefore,  South Staffordshire – superior title goes to the landowner when employee, while working, finds something (rings) – landowner possesses everything attached to or under his land.  Elwes – Landowner possesses everything under his land - boat belonged to lessor where the lessee finds something on lessor’s land o Finder has no title to property that is mislaid (in shop). McAvoy v. Medina (Customer of the shop owner placed his wallet on the counter, but neglected to remove it. P found the wallet.)  Social policy – an article would be more likely to get back into the possession of the original owner if the shopkeeper is preferred to the customer.

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Legal Reason – Theoretically, the owner entrusted the property to the shop by leaving the item there. Therefore, owner has title.  Distinction b/t Hannah and McAvoy – probably meaningless. Brooch was probably mislaid but the court could justify by saying that the owner of home never lived there so he wasn’t in constructive possession and didn’t know it was there. Also, different jurisdictions rule differently.  Factors to consider: where item was found, who found it (employee or owner?), how was it left Employee/Agent  Finder/Employee usually can keep lost property assuming true owner doesn’t claim it  English common law rule – the principal or employer gets to keep lost property  Decided on a jurisdiction by jurisdiction basis. There may be overriding legislation Sum up - Finder of property acquires no rights in mislaid property, is entitled to possession of lost property against everyone except the true owner (not all jurisdictions), and is entitled to keep abandoned property

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Adverse Possession
One who takes possession contrary to the possessory rights of another.  Permits one who owns title to property to lose title by inaction and allows someone who doesn’t have title to get title, without buying the land  Guiding principle – first in time does not usually apply  Rationale – efficient use of property, encourage taking care of property, avoid problems where someone thinks he owns land  Method: Owner loses right to sue/eject possessor once he satisfies all AP requirements. Theories of Adverse Possession o 1. Punitive – sleeping theory – if you own property and you sleep on your rights, you don’t assert the rights, you lose them. It is punishment for not asserting ownership rights on a piece of property o 2. Reward – earning theory – if someone comes on the property and puts it to good use, and they do it for an appropriate amt of time, then they should be rewarded. So you reward them with immunity to lawsuit.  In order to acquire title by adverse possession, possession must be actual, it must be under claim of title and the land must either be enclosed or sufficiently improved. Van Valkenburgh v. Lutz (1952) (D occupies P’s land by building a one-bedroom shack on it, by cultivating a garden on it and by storing rubbish on it. D admitted that the land belonged to the P. Dissent – it doesn’t matter if he admitted it or not, he admitted it after the statutory period for AP had passed.) o Prescriptive easement (gives trespasser the right to use a piece of property that they previously trespass on – unlike AP, not an exclusive right.  Requirements o 1. Actual entry giving exclusive possession  Entering must be un-permitted b/c if you recognize the right to property, have to recognize subordinance.  Clock starts running once you go onto another’s property o 2. Open and Notorious – entry that would put the owner on notice that the person is on his property  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. Manillo v. Gorski. (property owner sought (and failed) to enjoin the alleged trespass of an adjoining landowner whose steps encroached 15 inches and who claimed title to the strip by adverse possession.)  Maine doctrine – possession as an element of title by adverse possession cannot be based on mistake. It must be a knowing wrongful taking.  Connecticut doctrine (French v. Peace) – the very nature of the act (entry and possession) is an assertion of his own title, and the denial of the title of all others. Mistake is of no matter. o 3. Possession must be adverse or hostile or under claim of right  It is not permissive – must be on property acting as if he/she is owner of property  Rationale – owner should know someone is on his property but person should also know that a person is acting on the property that is not consistent with the owner’s wishes – owner should know that the person is on property treating it as if he were the owner  Claim of title is one way of expressing the requirement of hostility or claim of right on the part of an adverse possessor  Mental state  1. Objective standard –Majority – state of mind is irrelevant – so long as you intend to claim the land as your own  2. Good faith Standard – can only satisfy element of claim of right if you mistakenly believe that property you occupy is yours – thought you owned it  3. Aggressive trespass standard (Maine Doctrine)– only if you know the property is not yours, but you claim that it is yours o Rationale – cannot acquire by AP if you mistakenly occupied b/c if you knew it was yours, you would not have occupied it.

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o this is like a reward for possessing land and followed in distinct minority 4. The occupation must be continuous for the entire statutory period.  Land that is used in a customary manner (if such lands are used this way) is deemed to be used continuously. Howard. It is not necessary that land be occupied continuously to vest title by AP. All that is required is that the possession be of such quality that a third party would believe that the actual owner was occupying it.  Tacking between successive adverse possessors is established if there is a reasonable connection between them (privity) Howard v. Kunto. (D had a house on and occupied land to which Howard had title)  Privity is established if there is any voluntary transfer from prior to subsequent possessor. By deed, oral or other writing as long as it is voluntary privity is established.  Time runs against the true owner from the time when adverse possession began, and so long as AP continues unbroken it makes no difference who continues it as long as voluntary transfer.  There must be a voluntary transfer to establish privity.  Once an AP enters a piece of property, that person’s possession must be interrupted by the true owner, whoever that is. It doesn’t matter that the owner of the property transfers the property to a third person.  Once AP enters the property and the clock can’t be stopped by change of ownership. o One an AP enters a piece of property, that person’s possession must be interrupted by the true owner, whoever that is to avoid possession. (prob. 2, page 150)  If O dies b/f A enters property and O had devised it to B for life and remainder to C. B dies and then starts the clock running again when C takes possession (gets remainder). Improvements and Encroachments  Buildings or fixtures erected without right, whether in good faith or not, became the property of the landowner – (Howard)  Modern tendency is to soften the impact of this rule on innocent improvers like Kuntos, either by granting them compensation equal to the market value of the improvements or permitting removal of the improvements.  Occupying claimant or betterment Acts  If the encroachment is the result of an innocent mistake, courts tend to look at the relative hardships to the parties of granting or denying injunctive relief.  If the encroachment is willful or intentional, most courts issue an injunction requiring removal of the encroachment regardless of the balance of convenience or relative hardships. Color of Title (not essential to AP) o Refers to a claim founded on a written instrument or a judgment or decree that is for some reason defective and invalid, although not known (as where the grantor does not own the land conveyed by deed or is incompetent to convey, or the deed is improperly executed.)  Wrt AP: when you have a claim under color of title, if you occupy a part of what the deed gives you, you have constructive possession of all. However, owner gets benefit of constructive possession if he lives on part of property; but A’s actual possession of some part of that trumps the possession of the owner.  If 2 lots are conveyed by an invalid deed under color of title, and possessor of the deed adversely possesses one lot, he doesn’t adversely possess the 2nd, because the owner didn’t have notice of Adverse Possession. o Disabilities – mitigates the harsh doctrine of AP Vary from jurisdiction to jurisdiction as does the length of time granted to the true owner. 1. Insanity – honored in most states 2. Minor – honored in every state 3. Prison – honored in most states Only relevant disability is the one that exists at the time the AP commences Disability is immaterial unless it existed at the time when the COA accrued. Have whatever is longer, whatever is left of SOL when the disability ceases or an additional 10 years. Benefit of waiver goes to the true owner, whoever that true owner happens to be when the AP enters property. The heir’s disability is not at issue. If heir is child, then his guardian can assert his ownership rights. Once H’s guardian asserts his rights, then H has a disability. The guardian has 10 yrs to claim right of property if he does so, H owns property. That doesn’t mean that an AP can come onto the property and begin to assert rights. Clock starts running again. Cannot tack on disability of a transferee As a general matter, AP have no rights vis-à-vis (federal) governmental property (may be relief from rule in state or local.

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Disabilities policy is not inconsistent w/sleeping theory b/c the disabled person is not negligently sleeping on his rights, something prevents him from asserting his rights. Wrt earning theory, it is problematic b/c tring to reward Ap for making good use of property and shouldn’t matter the status of the true owner.

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Adverse Possession of personal Property The statute of limitations is tolled if the owner of stolen chattel makes diligent efforts to locate and recover the lost chattel. O’Keeffe v. Snyder. (Three of O’Keeffe’s paintings were stolen from an art gallery. The thefts were not reported to anyone.) Court gives the true owner the benefit of the Discovery Rule (B/f, the court of appeals said the COA occurred at the time of the theft) once the true owner has actual or constructive knowledge of the missing chattel o 1. you have to know your property is missing (actual or constructive knowledge) o 2. Know or should know you have a COA (court says you have to know who has the property). Only when you know who has it, can you pursue the COA o 3. Must diligently pursue - You have to know that you have a cause of action  If you do not diligently pursue, SOL accrues from time of theft, in absence of fraud or theft. o Court says that if you are diligently pursuing your goods, the SOL doesn’t start yet AP has to prove o Open and notorious possession (have to know property is missing and know who has it) o Aft establishing that, true owner has to prove that the true owner diligently pursued so sol is tolled o If they can’t prove they diligently pursued, then sol runs. Here, NJ does away with the AP rule wrt personal property and applies the discovery rule. As a result, there is a shifting of burdens, under old rule, burden was on the AP to prove the satisfaction of all the elements; under discovery rule, the burden is shifted to the true owner who has to demonstrate that it gets to take advantage of the discovery rule and if it doesn’t the SOL begins to run. True owner has to prove diligence to take advantage of the discovery rule o Thief can acquire title to property if the owner knows he has it and if the owner fails to pursue diligently, the SOL begins to run o This is a rule of quasi adverse possession. o Discovery rule allows the true owner a little bit of extra leeway – it defers the running of the statute o Entire burden is on the true owner.

Under UCC, a purchaser of property acquires all title that the transferor had the power to convey. If the transferor had good title, the purchaser has good title; if the transferor has bad title, it can’t convey good title to the transferee. In that case, the purchaser would only acquire possession from the transferor – then we have to apply the rules of AP or discovery rule: o Exception 1 – Conveyance when the transferor holds a voidable title - a person with voidable title, has the power to convey good title to a good faith purchaser for a value (bona fide purchaser). True owner has no COA if the holder of voidable title sells to a BFP.  Voidable title – obtained when the true owner voluntarily transfers property to someone; however transfer is based on some fraud in the transaction (like a bad check) o Exception 2 – if property is entrusted to someone who deals in such goods, the dealer/non-owner has the power to convey good title (bicycle shop) o Policy - Law does balancing act – as between the BFP and the true owner who had the best opportunity to avoid this situation?  Non-owner can good transfer title to BFP, but a thief cannot transfer good title, except within AP/discovery rule. Property can be transferred by: 1. will 2. Intestate succession 3. Deed 4. AP – adverse possessor gets title aft sol 5. Court decree 6. Legislative Act

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Voidable Title – only applies to Chattel

Deeds
Development  Interest in property can be broken up temporally (LE, remainder)  Livery of seisen – physically transfer the property symbolically  Courts of law began to recognize the written transfer and it became simpler to write a document so these various types of deeds were developed. System developed to require writing under SOF.  Most predominant way to transfer real property Traditional / Central Elements Premises  Granting clause - Owner of property intends to transfer property to other person  Recitation of consideration  Description of property Habendum Tenendum Clause – “to have and to hold” – describes the nature of the estate.

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Warranty Clause – tells you about the strengths of the transferor’s conviction wrt property, provides potential liability for the seller. Tells force of conviction as to quality of title.  Present Covenant i. Covenant of Seisin – promise by grantor that he does owns property to be conveyed. Seller says to purchaser that he has the right to possess this property that he is conveying to purchaser. Once I convey it, you’ll have the right to possess this property ii. Right to convey – promise grantor has power and legal ability to convey property (different with seisin b/c right to possess (wife) not the same as right to convey (power of atty.) iii. Covenant against encumbrances – guarantee that there no one else has an interest in this property – there are no easements, mortgages or tax liens or rental agreements  Future Covenants – i. Covenant of Warranty/Covenant of quiet enjoyment – The grantor covenants that the grantee will not be disturbed in possession or enjoyment of the property by a 3 rd party’s lawful assertion of superior title. If grantee is disturbed the grantor covenants to defend and compensate for any loss sustained by the assertion of superior title. Seller is liable. ii. Covenant of Further Assurances – if there are any defects in the conveyance, owner will provide you with corrected documentation Testimonium – “In witness whereof” (seller) Acknowledgement – in most jurisdictions, a deed cannot be enforced without a notary

Categories of Deeds
1. 2. 3. What caption of deed says is irrelevant, it is the text of the deed that matters. General Warranty Deeds – Grantor warrants that he will defend that recipient’s title against all claims, even claims that have arisen b/f the grantor received his title, and even if the title grantor received is totally invalid. Special Warranty Deeds – Grantor only covenants to grantee that he will defend title against anyone claiming title by, through or under grantor. Quitclaim deed – “As is” transfer – Grantor gives grantee what he has, but doesn’t know precisely what he has. Special burden on grantee b/c no indemnity is available. Still sufficient to convey good title, grantor retains no liability.

Freehold Estates (possession and seisen)
1. Definitions a. Freehold – possession and seisen (ownership) i. Present ii. Future iii. Co-ownership b. Heirs – persons who survive the decedent and are designated as intestate successors under the state’s statute of descent i. A living person has no heirs (yet) ii. Classes of kindred are usually preferred as heirs in the following manner: first issue; and if no issue, then parents; and if none, then collaterals. iii. Spouses are not considered heirs. c. Issue – Children and descendants. Sub-category of heirs d. Primogeniture – The eldest son inherited the land. If the eldest son predeceased the decedent, leaving issue, his eldest son or other issue represented him under complex rules. Only if there were no sons would the decedent’s daughters inherit. e. Ancestor – parents usually take as heirs if the decedent leaves no issue. f. Collaterals – all persons related by blood to the decedent who are neither descendants nor ancestors are collateral kin. Subset of heirs g. Escheat – if person dies intestate without any heirs, the person’s real property escheats to the state where the property is located. h. Can divide property by possession, by time, by geographically i. Order of heirs if person dies intestate i. 1. issue ii. 2. parents iii. 3. collateral j. Note: child is considered as in being from time of conception if later born alive for purposes of property law. Present/current possessory estates a. Fee Simple Absolute – greatest estate in land; it is absolute. i. Cannot own more than a FSA – all interests must add up to FSA 1. Fee – potentially infinite durations 2. Simple – no limitations on inheritability 3. Absolute – cannot be divested

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ii. FSA can have encumbrances (mortgage) iii. No artificial/automatic end to it. – can sell it to anyone chosen; after death, will go to heirs iv. At English CL – FS transferred by conveying deed “to A and his heirs” 1. To A – Words of purchase – conveyance by deed or by will 2. and his heirs – Words of limitation – indicate that the property can be passed by inheritance. 3. And one’s heirs means that it is possible for property to descend to one’s heirs v. At American law, granter is presumed to convey his entire estate unless something is said that indicates less than that 1. In most jurisdictions, if grantor makes a conveyance to A, it is presumed that A gets a fee simple interest in that property. 2. To A and his heirs: A has a FSA. 3. Potential heirs have no present interest in the property. 4. Will can only devise property testator held at time of death. (Dad dies devising all prop to mom; then g-pa dies without a will; since dad is dead, prop goes to kids, not wife) Fee Tail – lessor estate than fee simple - conveyance to a person and his or her descendants i. Typically created by the words “to B and the heirs of his body,” limited inheritance to lineal descendants of the grantee. If no lineal descendants survived at the grantee’s death, the property either reverted to the grantor or her successors or passed to a designated remainderman. ii. Any intervivos transfer aft original feetail will not thrwart reversion to the original grantor. iii. Today most U.S. jurisdictions have abolished the fee tail and have enacted statutes under which any attempt to create a fee tail result in the creation of a fee simple. Life Estates – An estate that last either for the life of the owner or life of another person i. An estate for life is an estate that is not terminable at any fixed or computable period of time, but cannot last longer than the life or lives of one or more persons. It may arise by operation of law or may be created by an act or agreement of the parties. ii. Courts presume that a conveyance of real property in a will was intended to convey a fee simple estate, unless contrary intent is demonstrated. White v. Brown (1977) (Jessie Lide died leaving a will stating “I wish Evelyn White (P – sister in law to Lide) to have my home to live in and not be sold . . . My is not to be sold. White claimed FSA. Brown (niece)). Note: court probably didn’t like 12 sobrinos coming out of woodwork to try to inherit the property.
Court reached the result it wanted.

Rule of constructions - Courts only apply the rules of construction when there is some ambiguity where there is a statute to be interpreted. a. Unless expressly that the testator is conveying less than all they have, assume that they are conveying entire interest. b. Rule construes against partial conveyance in the will, we will construe against partial intestate (part goes to willed person and part through intestate succession ) c. Courts do not favor restraints on alienation i. Public policy – goal is for people to convey their land and not limit d. Court will attempt to implement intent of testator – underlying principle. iii. Valuation of life estate and remainder 1. In ordering a sale of land courts must balance the interests of those whose have a present interest and those with a future interest. Baker v. Weedon (MI SC 1972) (Jon Weedon left a LE to Weedon and a remainder to the Bakers. Weedon wishes to sell the land now to reap its value; Baker wishes to retain ownership of the land to allow its value to increase.) a. Must look at interests of all parties. Life tenant must not act to the detriment of the remainderman and vice versa. b. Economic waste. See below. 2. Economic Waste - is relevant whenever 2 or more persons have rights to posses property at the same time. Waste is conduct by life tenant that permanently impairs the value of the land or the interest of the person holding title or having some subsequent estate. a. Voluntary Waste – someone makes an affirmative act that results in the devolution in value b. Involuntary waste – based on negligence – failure to take reasonable care of the property. c. Legal (ameliorating) – principle use of land is substantially changed but the change increases the value of the land – e.g. tear down a house and put up shopping center – still considered waste b/c the property isn’t being maintained for its current use. d. Rationale i. Grantor intends that the life tenant use the land in a reasonable manner and that it passes remainder to have it and near as possible unimpaired in its nature, character and improvements ii. One should not impose severe economic damage on the other.

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Restraints on Alienation Courts do not like restraints on alienation. When a restrain is absolute meaning you can’t convey the property to anyone, it is always unenforceable. Courts will allow for some restrictions on alienations but prohibit unreasonable ones. (e.g. ok if you don’t want to sell house to mean neighbor, it doesn’t restrict that much). Policy – want people to be able to freely convey land. 1. Disabling restraint – takes away from the owner the ability to transfer the property. This is null and void (could get injunction) 2. Forfeiture restraint – causes immediate forfeiture of title if transfer is attempted. As soon as the attempt is made, title to the property goes to someone else 3. Promissory restraint – grantee promises not to transfer his interest. It does not mean interest cannot be conveyed. If grantor catches the transfer b/f it is complete, he might get injunction. If transfer is already complete, relief would be limited to damages. 3. Defeasable estates a. 3 categories, contemplating a termination of the estate (3 types can apply too the three types of freehold estates) b. Fee simple estates of potentially infinite duration that can be terminated by the happening of a specified event. B/c defeasble fees can result in forfeitures, courts will construe, where possible, a purported limitation as a mere declaration of the grantor’s purpose or motive for making the grant i. Fee simple determinable estate (FSD) – estate that will automatically terminate upon the occurrence of an event or the satisfaction of a condition. Not only will the determinable interest terminate on the event that satisfies the condition, but the property will automatically revert to the grantor, the person who originally created the determinable interest. ii. Fee simple subject to condition subsequent (FSS) – an FSS can terminate upon the occurrence of the event. Interest can end upon the occurrence of the event or satisfaction of a condition. However, it only ceases when the grantor takes an affirmative step to reclaim the property. If grantor doesn’t do so, the present possessor retains property iii. Fee simply subject to an executory limitation (FSE) – ends when a condition is met or occurrence of event – when the event occurs goes to third party, not back to the grantor. It is called this whether the transfer to a third party is automatic or whether it requires some affirmative action by the third party.

Present interest Future interest 1. (fee tail, LE, fee simple) Fee simple determinable- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -Possibility of reverter 2. FS subject to a Condition Subsequent- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - right of reentry (power of termination) 3. FS subject to executory limitation- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - executory interest (limitation) c. Distinguishing b/t FSD and FSS i. Only where the grantor creates a possibility of reverter will he or his successors become possessory owners of property immediately upon the breaking of the condition. Mahrenholz v. County Bd. Of School Trustees (Ill 1981) (the Huttons conveyed land to the school to be used for school purposes only.” Subsequently, the school used the land for storage.) 1. Note: some state disallow intervivos conveyance of future interests except when conveyance (a release) is to the person with the residual estate (current possessory interest). 2. Was determined to be a FSD with possibility of reverter – then the issue is whether the classes ceasing satisfy the condition. If a. If determined to be FSS, then the Hutton’s retain right of re-entry, and if cessation of classes satisfies, then whoever holds that right of re-entry has to act on it. You can’t simply sit back and assume you get the property; otherwise, it continues as an on-going possessory right. 3. Rationale – courts prefer property held in most freely alienable estate ii. If grantor dies without will, there is difficulty in determining the heir to which the future interest (possibility of reverter) would go. Public policy that encourages making property more freely alienable. iii. AP: If holders of future interest aren’t aware condition occurred and don’t exercise right of possession, AP commences. iv. Many states have done away with these, but it is a trap for the unwary, but you may create one interest when you intended to create the other. 1. Hughes: the jurisdiction just needs to choose between one or the other. Distinguishing between FSD and FSC since many use mixed language. 1. FSD: Durational Language: “so long as”, “if the property ever”, “during the continuation” 2. FSC: If condition is indicated, “but if the property is used other than for . . . .then right of re-entry” To be absolutely clear, must identify interest explicitly Rule: Restraints on transfer can be valid if they are not so restrictive to amount to a restraint on alienation. If unreasonable transfer, it can be stricken. E.g. Mountain Brow Lodge No. 82 v. Toscano -Facts: A deed provided that a lot shall revert back to the grantor if the grantee, a lodge (P), either failed to use the lot (for lodge purposes) or attempted to sell it.

- Holding, the no transfer provision was stricken as a restraint on alienation; restriction on use (although narrow) provision was upheld. Note: dissent says that the restriction was effectively a restriction on transfer. Prof agrees with dissent. Proposition of too narrow restriction is valid one but the application to the particular facts are bad. Fee simple determinable (determinable fee) – an estate that automatically terminates on the happening of a stated event and goes back to the granter. It is created by the use of durational, adverbial language, such as for so long as, while, during or until. A fee simple determinable can be conveyed by the owner thereof, but his grantee takes the land subject to the termination of the estate by the happening of the event. e. Fee simple on condition subsequent (Right of re-entry) – created when the grantor retains the power to terminate the estate of the grantee upon the happening of a specified event. Upon the happening of the event stated in the conveyance, the estate of the grantee continues until the grantor exercises her power of termination (right of entry) by bringing suit or making re-entyr. The following words are usually held to create it: upon condition that, provided that, but if, and if it happens that. 4. Future Interests (note: under property law - anyone conceived and later born alive for purposes of property law is a life) D Three types of future interests that can be retained by the transferor 1. Reversion – follows LE or Leasehold - grantor conveys an estate in the land which is smaller than the one he owns and in order to become possessory, that future interest must follow the natural termination of the preceding estate. - If all interests do not equal FSA, there is a reversion - LE and R in FT add up to less than FSA, so there is a reversion. - If possibility that all estates end such that no one has (present) interest, then there is a reversion. 2. Possibility of Reverter – must follow determinable interest. Retained by grantor. Becomes possessory immediately upon the occurrence of the condition. Always cuts short the preceding possession - In FSD or FSC, future interest (of holder or grantor) cannot be divested. With CR situation, future interest can be divested. 3. Right of entry – always follows FSC - power of termination. Gives the grantor the right to forfeit the preceding estate upon the occurrence of a condition, not automatic. It cuts short the preceding possessory interest. d. Future interest held by the transferee (1) Remainder 1. Future interest in favor of a transferee that is created at the same time the prior possessory interest is created 2. Remainder can only follow a fee-tail or a LE and it must be possible for the remainder to become possessory at the termination of the prior estate (prior estate can terminate anytime including on conveyance of the property). 3. A remainder never cuts short the preceding estate – it always follows the natural termination of the preceding estate Vested (ready to become possessory when all prior estates expire) (1) If given to an ascertained persons AND (2) If it is not subject to a condition preceding Contingent (Contingent upon an event occurring rather than natural termination of preceding estates) (1) If given to an unascertained person OR (2) If given subject to a condition preceding (2) Executory interest – a future interest in a transferee that can take effect only by divesting or cutting short another interest. 1. Shifting E.I. - When one transferee (holder of EI), divests another transferee -E.g. to A to life, then to Jones, but if Jones first son gets married, to Smith. 2. Springing E.I. – when the EI holder divests the original transferor. E.g. I give to Jones my property when Jones’ first son gets married – Springing EI to Jones b/c in order to take, Jones will have to cut short my FSA. I have current possessory interest in property and I maintain that until and when Jones son gets married. a. Determining present value of future estates i. Future interest does have some value – it is the right to possess property in the future, but it also has current cash value. 1. (minority rule) Proceeds from eminent domain proceeding should be divided between the holder of the FSD and the holder of the reverter. Ink v. Canton (1965) (facts: The descendants of Harry Ink conveyed to the city of Canton land to be used for park purposes only. Subsequently, the state of Ohio instituted ED proceedings against the land for a highway.) a. (market value (as a FSD) – park value = grantor’s money. Anything above and beyond the value of the land as a park goes to the remainderman. Problems i. If all interests do not equal FSA, there is a reversion ii. LE and remainder in FT add up to less than FSA, so there is a reversion iii. If possibility that all estates could end such that no one has present interest, there is a reversion iv. LE (or any other estate) followed by a CR cannot add up to a FSA so there is reversion v. LE + VR (FSA) = FSA

b.

c.

d.

vi. Reversion 1. OA for 20 yrs. A has term of years; O retains reversion. vii. Executory Interest Executory Interest i. O A for life and then to B is B gives A a proper funeral 1. If a condition precedent can only be satisfied aft the natural termination of prior estate then B has EI b/c he would cut off O’s (by reversion) estate aft condition is satisfied. ii. Holders have an EI when it cuts short an estate, even if cutting off occurs at the present holder’s death, when the present holder has an interest they could have willed or devised (p. 265, Prob. 2) iii. If E has a child (also issue), and B is dead and A dies, the child gets interest too. (p. 265, prob. 2) iv. EI vests upon becoming possessory. Remainder i. Contingent 1. LE + CR is less than FSA, so reversion 2. Alternative CR – if one CR becomes vested, it eliminates the other – there is no way that both A&B to satisfy the condition. (E.g. page 263, problem 2.) 3. If condition is within the clause (inside commas), then interest is contingent on that condition. (p. 274, prob. 1(b)). If condition outside the clause (outside commas), interest is condition (p.274, prob. 1(a)). 4. Compare: a. To A for life, then to A’s children and their heirs, but if at A’s death he is not survived by any children, then to B and heirs – condition outside the comma so not contingent on survival. b. To A for life, then to such of A’s children as survive: condition is within commas so it is contingent on survival. 5. Always a reversion when the only remainders are CRs 6. CR vests when it becomes vested. 7. Rule from Shelley’s case a. At CL, CR were not favored, b/c it made conveying property more difficult. Several rules were instituted to make property more easily alienable b. Rule makes land alienable one generation earlier. c. If an instrument creates a freehold estate in A and a remainder in A’s heirs, the remainder becomes a remainder in fee simple in A. d. If in a single document, a LE is given to a person and a remainder either in FS or in FT, is given to that person’s heirs or the heirs of that person’s body and the LE and the remainder are both either legal interests or equitable interests, the remainder becomes a remainder in the hands of the life tenant. E.g. “To A for life, remainder to A’s heirs” – Remainder moves into the hands of the life tenant. i. Legal interest – direct conveyance ii. Equitable interest – interest conveyed in trust – no legal interest but equitable right to enjoy the interest. e. Requirements for applicability of Shelly’s Rule so that Remainder moves to Life Tenant: i. One document ii. LE to one person and R to that person’s heirs (or heirs of body in FT) iii. LE and R are both legal interests or equitable interests. f. Examples (p. 285): i. “To A for life, remainder to A’s children and their heirs” – Shelly’s rule is inapplicable here b/c the gift is to A’s children and their heirs not to A’s heirs. ii. “To A for life, then to B for life, then to A’s heirs” – Shelley’s rule applies 1. A has LE (+CR in FSA, due to Shelley’s rule, contingent on ascertaining heirs) 2. B has VR (LE) 3. O has reversion b/c FSA is contingent. A and B could renounce LE and the heirs were not yet identified. 4. Even if the interest is contingent only in the life tenant’s lifetime, he gains the ability to will, transfer or sell it away. And O still has reversion. Now, A has more say as to whom the property goes aft B’s death. iii. “O conveys to A for life, then to A’s heirs if A survives B.” 1. Rule applies so A = LE (+ CR (FSA) (vested in A’s heirs when A dies, if A had survived B)) 2. O has reversion, if A doesn’t survive B. g. Rule in Shelly’s case has been abolished, but still lingers in some cases. ii. Doctrine of Worthier Title (R or EI)

e.

Provides that when a grantor makes an inter vivos attempt to create either a remainder or an executory interest in the class of his heirs, he or she creates no interest in his or her heirs but retains for himself a reversion. 2. An inter vivos conveyance attempt to create a future interest in the grantor’s heirs is ineffective so grantor has a reversion. a. E.g. O conveys to A and her life, then to O’s heirs, the remainder of O’s heirs is void and O has reversion, A has LE. 3. Policy justification – designed to carry out the grantor’s intent. a. It is assumed that grantors seldom intend to create a remainder in their heirs that they cannot change and therefore, the doctrine gives the grantor the right to change his mind by voiding the remainder and creating a reversion in the grantor. b. Makes property alienable earlier. 4. Has been abolished in most states iii. Vested remainder 1. Ready to become possessory when all preceding estates expire 2. VR subject to open – when other later born children could dilute of a vested remainder of the first. a. E.g. page 263 number 4. 3. Can devise a VR (FSA) even if it is subject to divestment and open. (p. 265, prob. 2) 4. VR (FSA) can never be followed by a remainder, must be followed by EI. 5. If have vested remainder, the VR divests the O’s reversion. 6. vested remainder can be subject to a condition subsequent, but not a condition precedent. P. 274 1(a) 7. Subject to open means later children could be born 8. Subject to partial divestment means there is an EI that could cut it off partially. iv. Difference b/t CR and VR 1. Acceleration a. VR accelerates into possession immediately upon termination of the preceding estate. i. Natural termination is not considered to be condition preceding. Including if the life tenant renounces the estate. b. CR – non-acceleration – CR can only vest when i. the condition is met or ii. person become ascertained 2. Transferability a. At early CL, VR were transferable intervivos, but cr were not transferable intervivos, except, CR holder could transfer his interest to the current possessor of the property. b. Modern Rule: maj. of jurisdictions, VRs and CRs are freely transferable. Still a couple of jurisdictions do not follow modern rule. 3. Destructibility (CL rule abolished in ¾ states) a. VR are not destroyed b/c they are vested. Fixed right, doesn’t wait for anything to become vested b. CR could be destroyed if it doesn’t become vested at the time that it could become possessory, on the termination of the preceding estate. c. Maj rule today - both CR and VR are not destructible if person isn’t prepared to take possession at the termination. Still, a couple of jurisdictions may not follow modern rule. 4. Rule Against Perpetuities a. VR are not subject to RAP b. CR are subject to RAP Rules furthering Marketability by destroying contingent future interests i. Shelly’s Rule ii. Doctrine of Worthier Title iii. Destructibility of Contingent Remainders 1. CL – if a CR did not vest at or b/f the termination of the preceding LE, it was destroyed 2. CR could also be destroyed by application of the merger doctrine – if the LE and next vested estate in FS came into the hands of the same person, any intervening CR would be destroyed. a. E.g. O conveys WA to A for life then to B and her heirs, if B survives A. i. A = LE ii. B = CR (contingent upon B surviving A) iii. O = reversion (if B doesn’t survive A) iv. If A conveys LE to O, O’s reversion and LE would merge and B’s CR would be destroyed b/c it had not vested by the time of convergence. O would have FSA. v. If O conveys reversion to A, A’s interests (in LE and reversion) merge and CR would be destroyed and at the point of merger, A has FSA. 3. Problems, page 289, prob. 1

1.

4. Problems, p. 290, prob. iv. Rule Against Perpetuities (p. 291) 1. No interest is good unless it must vest (or fail to fest), if at all, not later than 21 years aft some life in being at the creation of the interest. If it is not certain that the interest will either vest or fail to vest, then the interest is void at its creation. 2. An interest is void if there is any possibility, however remote, that the interest may vest more than 21 years after some life in being at the creation of the interest. a. Applies to CR and EI (also to cr (LE)), not to reversion b. Technically, it also applies to vested remainders subject to open, but there is an exception to that consumes the rule: i. Under old cl, a vr subject to open became vested when the class was closed (parent was dead) and all members of the class satisfied the condition precedent (all children are 21) ii. Rule of convenience changed the rule - closed the class once any member of the class became entitled to possession. This vests the interest earlier. 3. rule either validates (you’ll know whether it vests or fails) or invalidates (interest is void at outset) 4. To determine whether the RAP is validated, is you have to find a measuring or validating life. It is a person who must be alive at the time conveyance is made b/c the person will be alive at the time of the gift. (we don’t know whether the measuring life will satisfy the condition or not, but we will have an answer within 21 years.) a. 4 classes of people: i. the preceding life tenant – page 292 ii. the person who is named take the contingent interest 1. If the condition has to be satisfied by the validating life (during his lifetime), then RAP doesn’t apply and the interest is good. iii. anyone who can affect the identity of the takers iv. anyone who can affect a condition preceding b. Requirements for validating life: i. Must be born at time of conveyance ii. Must be one of the classes above. c. If the condition must vest or not vest within the life (or 21 yrs after) of one in any of the classes above, RAP does not apply. 5. Problems, p. 293 : a. 1. A= LE i. B = CR (FSA) (continent upon reaching 30) ii. Validating life 1. preceding life tenant – A is not validating life b/c if A dies right now, B may still never reach 30. 2. person named to take the interest - B has to reach 30 or not by the time he dies. a. We don’t know if B will satisfy the condition or not, but we will know within 21 years of the end of the life in being. iii. O = reversion iv. RAP doesn’t apply b/c we will know if B is 30 or not when he dies so conveyance is good. b. 2. “to A for life, then to A’s children for their lives, then to B if B is then alive, and if B is not then alive, to B’s heirs.” i. A = LE ii. A’s children = vr (LE), subj to open (if no kids, cr, subj to open) iii. B = cr (FSA) (if alive) iv. B’s heirs = cr (FSA) (not vested b/c heirs are unascertained) v. Validating life – 1. 1st gift - preceding life tenant – (or affecting identity of takers) a. A – affects the identity of the people in his class. Will know at A’s death who A’s children are – if A has no children when A dies, then we’ll know. b. Applying the rule – and it doesn’t invalidate the first gift b/c at A’s death, or 21 yrs aft, we know the identity of A’s children so the condition is satisfied. 2. 2nd gift - B as validating life

3.

Rule does not invalidate the transfer b/c we will know (or not know) at the time of B’s death, whether he fulfilled the condition of surviving A’s children. 3rd gift – B’s heirs – condition: B has to die and outlive A’s children a. B is validating life b/c he affects the identity of the takers and affects the condition preceding. b. Condition for heirs: have to know who they are and will know at the point B dies. We also have to know whether B has survived A’s children. c. Gift is valid b/c we have to know when B dies whether B survived A’s children and if dies

a.

c.

3. i. ii. iii. iv. O = FSA, subj to EI Students = EI – have to cut short O’s interest Conditions: present members, admitted to the bar Measuring life 1. teacher – no b/c do not know within 21 yrs of death whether it will vest or not b/c people could pass the bar after 21 years. 2. student – takers of the interest – when the last student dies, you will know whether the 3. Interest is valid b/c you would know at the time of last student’s death, whether all have passed the bar. v. “For first child of A who is admitted to the bar” 1. O = FSA, subj to divestment 2. A’s child = EI (condition: first one to pass bar) 3. Measuring life – a. Not teacher b/c a child of A could be born aft teacher’s death and pass the bar. b. A – cannot be validating life b/c his child could pass the bar more than 21 years aft A’s death. c. A’s child – cannot be validating life b/c there is no child, i. But if a child were born, that child would be validating life b/c he would necessarily pass the bar or not pass the bar by his death or 21 years after. 4. Gift is invalid

5.

Modern Rule a. Most jurisdictions have adopted revisions for RAP and it is usually wait and see period for 90 days. Concurrent Interests/Estates a. Three types – i. Joint Tenancy 1. Two or more persons have separate, undivided interest in property, each has the right to use entire property, but no JT has the right to deprive any other JT of use of the property. Survivorship rights. 2. Tenant’s rights: a. Separate, undivided interest b. Right to use entire property, but not exclude c. Right to unilaterally sever by conveyance. 3. All Four Unities required: a. Interest – ownership rights of each JT must be equal b. Possession – each JT must have right to possess the entire property c. Time – each JT must acquire his or her interest in the property at the same time d. Title – All JTs must take under the same instrument. More than one instrument delivered at same time is not sufficient. 4. Survivorship right - Distinguishing feature of JT–– JT cannot pass by will or intestacy. When JT dies, the other JTs get the property. a. Cannot devise an interest as a JT. b. Rule: A single joint tenant cannot obligate prop in a way that amounts to a detriment to the other co-owners in JT. c. Can convey interest while alive which would break the JT. 5. Breaking JT a. Any JT may unilaterally sever the JT by simply conveying his or her interest in the property. b. Party who to whom interest is conveyed and all the other JTs are now TC.

6.

c. d. e. f.

Can only break JT by breaking one of the unities. (p. 337. prob. 3). Dying doesn’t sever JT Divorce doesn’t sever JT Court has recourse to correct the harshness of the survivorship rule. A court in equity may look at the other factors including contractual relationship and override rule.

b.

c.

d.

g. ii. Tenancy in common 1. Each tenant has separate undivided interest in the property. They have right to possess entire property. 2. Only unity required is the unity of possession 3. No survivorship rights 4. Interest of any TC can be inherited, passed by will or conveyed by deed. iii. Tenancy in the entirety 1. Survivorship rights 2. Require all 4 unities and a 5th - marriage. 3. Only spouses can take tenancy by the entirety. (however, some states allow same-sex or relatives to hold property in tenancy in the entirety) 4. Neither tenant can defeat the survivorship rights of the other. 5. Neither spouse may unilaterally sever the tenancy by the entirety. 6. Many jurisdictions no longer recognize tenancy in the entirety. 7. Possible ways to treat creditors of one tenant (in the entirety) a. An estate by the entirety is not subject to the claims of creditors of only one of the spouses b/c neither spouse acting alone can transfer his or her interest. Sawada v. Endo (1977) (Kokichi and Ume Endo conveyed their property to their sons the same day that Kokichi got into an auto accident that injured the Sawadas) b. Under Married Woman’s property Act, the interest of a husband or wife in an estate by the entireties is not subject to the claims of his or her individual creditors duing the joint lijnes of the spouses. B/f the husbands debtors could go after the husband’s property and the wife could be stuck – in CL, that was ok, there was nothing a wife could do to impair the interst of the husband. c. The MWPA equalized it in three ways: i. Neither party’s creditors can have any interest in the property (Sawada) ii. Equalize by giving wife same rights as husband – just as H could impair property, so could the wife iii. Other jurisdictions, let creditor wait until one dies and if the creditor is a creditor of the survivor, then they are in luck. 8. At CL only real property could be held in estate in the entirety, and cash is considered pers prop. Default estate i. CL presumption – JT was presumptive sort of concurrent ownership – if there was some ambiguity, JT was default estate. ii. Modern law – presumption favors tenancy in common – if person is less than clear about what she intends, it will be tenancy in common Problems – i. Don’t assumed just by words - For clarity, must say JT, with right of survivorship. Most jurisdictions presume TC if not clear. Saying JT might not be clear enough. Must say JT, with right of survivorship. (324, prob. 1) ii. Prob. 2 iii. Prob. 3, if they had TE, c gets undivided 1/2, then when the husband dies, A would get survivorship. 1. If husband conveys interest to another and then dies, wife gets prop. because he cannot convey right of survivorship. If husband conveys to another and wife dies, the conveyee gets interest. Effect of mortgage on JT: 2 theories i. Lien theory – if you give a mortgage, all you give to mortgagee is a lien (a claim secured by prop for payment of a debt) on the property. 1. Mortgage does not sever a JT and the surviving joint tenant takes the interest of a decreased JT without being encumbered by the mortgage. Harms v. Sprague (1984) (As a favor to Sprague, John mortgaged his and Williams’ land, without telling William, and later devised everything to Sprague when he died.) 2. Cannot devise an interest in land if you are JT b/c you can’t will a right of survivorship (something you don’t have yet) 3. Mortgage doesn’t sever a JT. 4. A mortgage will disappear if attached to a JT’s interest and that JT dies b/f the other JT. But if mortgagee (lender) forecloses b/f JT (John dies), the mortgage vests so he can demand sale of property.

e.

Policy: cannot be responsible for someone else’s mortgage – reflection of the idea that each JT will have the right of survivorship. You should examine your risk b/f taking the risk, granting the mortgage (Simmons could have found out that it was a JT). 6. JT should know that their interest is free and clear, once they survive. ii. Title theory – you give legal title to the mortgagee until the mortgage is paid. (remaining in dozen states including GA); Here, a mortgage might break the JT. Termination of Co-ownership i. Court can terminate JT and TC, but not TE ii. Partition in kind 1. Rule: If a court wants to order partition in kind the following are necessary a. 1. it has to be practical b. 2. It has to be equitable – can’t be to the detriment of one party to the benefit of the other. i. Many courts will consider bests interests (highest valued use) c. If the above is not applicable – then a partition by sale is applied. iii. Partition by sale 1. A partition by sale should only be ordered if the physical attributes of the land in question and the interests of the owners would be furthered are such that a partition is impracticable or inequitable. Delfino v. Vealencis (1980) (The Delfinos owned 99/144 of the property and wanted a residential development, while Vealencis owned 45/144 and wanted to keep her garbage business on it. Held, partition by sale was not equitable) iv. Default position (in this state) – if partition is possible, then you should do it, courts don’t favor forced sale of property. v. Ouster – a cotenant has the right to use the entire property and if he does so, the cotenant (JT,TC) is entitled to nothing. However, if the possessing cotenant possesses by ousting, then he or she is responsible to pay the ousted co-owners the fair rental value of his or her possession. Expressing an intent to use the property is not enough, must take affirmative step. So if attempt is made to go onto property and co-owner is ousted from the property, other co-owner owes half fair rental value. 1. The beginning of the running of the statute of limitations in cases of adverse possession; the liability of an occupying cotenant for rent to other cotenants. 2. Policy – nature of the ownership – you have the right to use property so long as you don’t infringe the rights/ attempt of the other cotenant to use the property. Assumption is that the co-owner permits the use until he seeks to assert right to use. Then co-owner in possession must share. 3. 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 a cotenant. Spiller v. Mackereth (1976) (Aft another tenant vacated their building, Spiller used it as a warehouse, and Mackereth demanded he pay rent or vacate half of the building) 4. A JT has the right to convey or mortgage his interest in the property, even if the other joint tenant objects. Swartzbaugh v. Sampson (1936) (Mr. S leased part of some land for a boxing pavilion, but Mrs. S, the JT, never signed the lease and wants to cancel.) a. For 5 yrs, Mrs. is JT with Sampson, not Mr. b. Any JT has the right to possess all of the property and if they do, without ousting any other JT, they aren’t required to pay an rent c. In this case, Mr. leased the 5 acres to a third party – so Mrs. is entitled to .5 of the revenue. Mr. must pay. d. Options for termination (Schwartzbaugh v. Sampson): i. Accounting: Mrs. could sue Mr. for accounting and get half of actual rent ii. Ouster 1. Sue Sampson for ouster. If Mrs. S proves ouster when Sampson resists her attempt to enter, she would only be entitled to 1/2 of the reasonable rental value of the land from Sampson. She would not be able to remove him or the boxing arena from the land. 2. Mrs. could try to oust Sampson and then would have to pay Sampson .5 fair market rental value of property 3. Try to get ousted by husband iii. Partition in kind– 1. if the court can partition in kind and do so equitably, the court will award the Mr. the part that is leased and has improvements on it and it would award Mrs. The part that is unimproved and unencumbered by the lease. 2. Court could partition and give the boxing part to Mrs. and Sampson would be out of luck for the 5 years 3. Court could also petition in kind wrt Sampson on the 5 acres. Would expire in 5 yrs when lease ends. 5.

f.

iv. Partition by sale 1. Court could auction property and split the money. Sampson would be out of luck 2. Mrs. seeks partition by sale of leasehold (right to use land for 5 years). Sampson gets half of that b/c he was the JT (for 5 years) and he would have to pay Mr. 15. vi. Dividing of property when marriage is terminated 1. division in case of divorce a. At termination of marriage, in vast majority of jurisdictions, marital property is divided by “equitable division” meaning that the court decides whatever it wants based on its view of whatever is equitable. I some jurisdictions the rule of community property pertains, and there the marital property is divided 50/50. (GA is equitable) b. Educational degree as property i. An educational degree is not usually considered property, and therefore is not subject to division upon divorce. In re Marriage of Graham. (Flight attendant supports husband through MBA school, covering 70% of their expenses, and aft he graduates they divorce. Trial court discounted his earning ability to present value and then was to pay her over time (she was screwed). Appellate reversed.) ii. Restitution - Reimbursement to the spouse who worked iii. Minority view: advanced degree and enhanced earning degree as a martial asset and they make provisions for it. (investment in human capital) (very few – NY. Dissent in Graham) 2. Marriage ending in Death a. Dower – i. Upon death of H, W was entitled to dower. Meant that W would received a life estate in 1/3 of any parcel of land owned by the H. 1. Property had to be inheritable by the issue of the couple – doesn’t mean issue get property, just that they should get the property ii. Right of dower attached to property whenever property was acquired whether by marriage or attaining property during marriage iii. Dower could only be released by the W’s consent – if the husband transferred the property at anytime during the marriage whoever took the property took it subject to the wife’s dower rights iv. At CL, applies to real property. b. Courtesy - If W died first, the husband was entitled to courtesy. H was therefore entitled to LE in the entirety of each piece of property owned by W, not just 1/3. i. Only attached upon issue of that marriage being born alive and upon the wife’s survival of that birth. The later death of the issue is irrelevant. Then courtesy attached. ii. At CL, applies only to real property c. Elected Share - Dower and Courtesy have been abolished in almost all states and have been replaced by spouse’s elected share. i. In those states, the states have defined a percentage of the deceased spouse’s property o which the surviving spouse is entitled. Called elected share b/c the deceased spouse might be more genera than what the deceased would have under just the elected share. ii. Applies to all inheritable property: real, personal and intangible. d. Problems, p. 395. i. If O conveys BA to A&B and then O dies, and O’s W didn’t consent, dower attaches to any property H owns during marriage so O’s W has marriage. ii. Only inheritable interests are subject to dower. Dower doesn’t attach to JT, because when one JT dies, the other gets all the property. It is not inheritable. iii. If JT is broken by one co-owner conveying interest to C. It is now TC so dower of C’s wife attaches and she is entitled to 1/3 LE in the property if C dies. iv. To avoid giving wife dower, could form corporation and own all stock b/c dower doesn’t apply to pers property. v. Life Insurance goes to the beneficiary – not an inheritable interest. 1. He could retain a LE in BA and give a remainder to his daughter – a. Or he could make lifetime transfers – intervivos transfers b. Or put all prop in a trust and retain for himself the life interest in the property. Benefits and Burden of JT and TC

i. Accounting – Anytime a JT in property, leases property right to 3 rd party, then his or her co-owners are entitled to an accounting and that accounting entitles them to pro-rata share of that lease. (E.g. Mrs. could sue Mr. for accounting and get have of actual rent) ii. Protection from caption 1. When one cotenant pays the mortgage or taxes on property to reserve property from foreclosure – that cotenant is entitled to a pro-rata contribution from each of the other cotenants a. Minority jurisdiction: if cotenant pays taxes and mortgage and is in sole possession of the property, he is not entitled to contribution from other cotenants – this is exception to rule. iii. Repairs 1. If one or more co-owners but less than all of them, pays for repairs or maintenance of the property, they are not entitled to contribution from the non-paying co-owners. However, they are entitled to the credit for the cost of repairs/maintenance if there is an accounting for rental or if the property is partitioned and sold 2. If property is not rented and someone seeks partition and property is sold, you will get credit first for repair/maintenance costs and then split pro rata the net proceeds of the sale. iv. Improvement 1. If one co-owner makes improvements on the property, he isn’t entitled to contribution from the other co-owners nor are they necessarily entitled to credit for the costs of those improvements; however, to the extent that the rental value of the property or rent received by the property is enhanced by the property, the improver gets to recover cots out of that enhancements 2. When property is partitioned and one has made improvements, to the extent that the court can do so equitably, the person who makes the improvements, gets the part of the land where the improvements were made. v. Waste 1. If co-owner does anything to diminish the value of the property, the other co-owner has an action of waste against that person.

Leasehold Estate
 1. Term of years (estate for years) o Fixed duration that is either specified at the outset or can be determined by the application of some formula o Period can be longer or shorter than a year(s) o Must be in writing if the term exceeds one year (SOF) o Terminates automatically at the end of the period without a requirement of notice o Neither party may unilaterally lengthen or shorten the term of years o Not terminated at death of T or LL, except residential leases for tenant in some jurisdictions. 2. Periodic tenancy (not terminated at death of tenant) o Has an initial fixed duration, however, unless either the LL or the tenant terminates the periodic tenancy, it automatically renews for another term of years equal until someone provides notice and terminates it.  Limitation: irrespective of the initial term of the lease, any renewal of the lease cannot exceed a year in most jurisdictions.  What is difference b/t term of years and periodic tenancy and sufferance. o The initial period can vary and it is set by the parties. o Under CL, a year to year tenancy required a min of 6 month notice to terminate by either party  For periodic tenancy that was less than a year, the notice required was the lesser of 6 months or the period.  Notice requirements:  Under CL, year to year Periodic tenancy, had 6 months notice  Under CL, Less than a year, notice required is the lesser of 6 months or the period o If pass deadline b/f the end of period to give notice you are locked in for the next period.  Notice was required to provide that the tenancy would terminate at the end of the period.  In most states, CL rule have been altered wrt notice periods o SOF – periodic tenancies for yr or more must be in writing o If parties agree to a tenancy and it is unclear what they’ve agreed to; in some cases, a periodic tenancy can be implied in law –if the parties don’t agree to a specified term but they identify the time for payment of rent, periodic tenancy can be implied that assumes the period per payment of rent. o If you miss deadline to provide notice, may require that you provide notice again for the day you are legally free of obligation. o Limitation 3. Tenancy at will (terminated at death of tenant) o Created when the parties expressly provide that either party may terminate at will whenever they want to o Or when a T that is given possession and parties don’t agree on a time period and rent is not denominated as covering a specific period of time. o LL has two options:  1. Eviction (plus damages) or  2. consent (express or implied) to creation of a new tenancy. o Terminated on death of LL or T, exception wrt residential leases. (Tenancy in sufferance) (not traditional) o When a tenant stays on property aft expiration of the lease term not viewed as trespasser until LL indicates he does not want T on the property. o Once a LL elects either to treat a holdover as a trespasser or to hold him to a new term, he may not change his mind. Crechale v. Smith. (1974) (Smith held over past the expiration of his lease, Crechale decided to treat Smith as a trespasser. Later, he cashed his check, thus deciding to hold him over to a new term)  LL who accepts rent from his holdover will be held to have consented to a periodic tencnacy for the amt of the check.  If LL elects to treat as holdover, then would renew the lease as term of years with in some jurisdictions limiting it to a year. General o Death of Tenant –  Under CL, death of party – neither a term of years nor a periodic tenancy is terminated upon the death of the tenant, but death terminates the tenancy at will.  In many jurisdictions, a residential lease is terminated upon the death of the tenant. Delivery of Possession o English rule – In every lease implied covenant to tenant that the premises will be available for possession.  Policy – No tenant wants to buy lawsuit, they want ability to reside. Should be LL’s obligation at the outset to provide inhabitable land. o American rule – absent express covenant to deliver possession, there is no implied covenant to deliver possession, only title  Policy – if the LL required to give actual interest, he wouldn’t be able to rent something currently being rented.

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LL only has a duty to deliver the right to possession of the premises to a tenant, not actual possession. Hannan v. Dusch. (1930) (when Hanna’s lease was to begin, Dusch failed to evict a hold-over tenant.) Subleases and Assignments o Terms:  Sublease: a transaction in which a T or lessee conveys an interest in the leased premises that is less than his own or retains a reversionary interest.  Assignment: transaction in which a party conveys his entire interest in property to another.  Privity of estate: mutual relationship wrt a piece of land  Privity of contract: a relationship b/t parties that arises b/c they have entered into a contract with one another.  Sublet: to transfer a portion of the lessee’s interest in a lease to another. o Sublease vs. assignment  If sublease, no privity of contract b/t Ernst and Conditt and no privity of estate. If sublease, the original party retains an interest/reversion in land. Ernst could sue Rogers if Conditt didn’t pay.  If assignment, privity of estate b/t Ernst and Conditt b/c no reversion held by Rogers (Rogers gave entire interest in land to Conditt; at natural termination of lease, property would return to Ernst.)  Privity of estate if interest is assigned  Privity of contract b/t Ernst and Conditt b/c of TPB relationship and privity of contract b/t Ernst and Rogers but Ernst didn’t want to sue Rogers.  Course can reach the decision on 2 basis:  1. Formalistic basis – when lessee transfers his entire interest under a lease, it is assignment  2. Intention of the parties – to determine whether assignment or sublease.  Courts here used a formalistic approach, not intent of the parties to determine it was an assignment (Rogers retained no interest after new contract) Ernst v. Conditt (1964) (Rogers, the original lessee, transferred his interest to Conditt. ) o Problems:  P. 472, (c) – LL must have privity of estate or privity of contract with T to sue for recovery of rent.  Subrogation – if LL sues any T, that T steps into LL’s shoes and can sue anyone LL could have sued under privity of estate or privity of contract.  Also may be privity of contract b/t T and T1 b/ec he agreed to assume all the covenants in the lease. o Absent contractual language to contrary, a lessor may not arbitrarily and unreasonably withhold consent to assignment. Kendall v. Ernest Pestana (1985) (D demanded increased rent in exchange for consent to assign a lease)  There is implied assumption that the consent won’t be denied unreasonably, if there the lease contains consent clause.  1. Conveyance theory – Assumes LL conveys lease interest to tenant and an unreas withholding of consent would be a restraint on alienation.  2. Contract theory - Good faith requirement - court could read into a contract a requirement of good faith so that he can’t withhold consent  Commercial: majority says you can withhold consent with or without reason in commercial context.  Once you put commercial property in the flow of commerce, then cannot restrict assignment of lease unreasonably (e.g. based on religious preferences or political preferences).  There are also other considerations. E.g. Overall scheme of mall.  Not limited to direct economic or financial considerations (Walmart)  Residential: if lease says you can’t assign without consent, there is no implication that the consent must reasonable. Policy – greater interest in the LL in having more discretion as to the person leasing his property.  Problems:  p. 483. (a) Tenant Responsibilities and rights /Waste o T has a duty not to commit waste on LL’s premises. There is no clear cut std as to what is waste. It is a factual determination by court.  T is not permitted to make a fundamental change in the appearance or function of a piece of property even if that change would enhance the value of a piece of property.  T is generally not permitted to remove fixtures from the property or to fail to make normal repairs to the property (ordinary wear and tear to the property).  The duty to repair doesn’t extend to rebuilding the premises if there is substantial catastrophe.  All this can be altered by an express contraction. o This all may be considered waste. o Tenants rights  The development of contract leases from conveyance leases. 2 theories:  Independent clauses (conveyance theory) – when you view a lease as a conveyance of property – the obligations are both are independent from each other. o E.g. if T doesn’t pay rent, LL has to sue for non-payment but still must perform.

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Dependant clauses (contract theory) – if the one doesn’t perform his duty, the other can stop performing. Constructive Eviction –  Requirements for CE: o 1. Any act or omission by the LL that renders the property substantially unsuitable for the purposes for which they were leased or o 2. Any act or omission by the LL that seriously interferes with the T’s beneficial enjoyment of the premises. Must be reasonable time period.  If either of the 2 things happen, T has been constructively evicted and is entitled to leave.  Even if no apparent ability to control the interference of the beneficial enjoyment, the T may still have cause for CE. P. 517, prob. 2(a)  A T may vacate premises and terminate the lease if his quiet enjoyment is interfered with by the LL. Reste Realty Corp. v. Cooper (1969) (Whenever it rained, the basement that Cooper was leasing flooded. Cooper vacated w/i reas time since there was ample evidence to find she acted reasonably under the circumstances.)  Advantages – permits T to vacate if there is substantial intereference with use  Disadvantages – o T must reach legal conclusion at the time they act. If incorrect, then T has breached and is liable for the lease.  Partial actual eviction – kicked out of part of property. T can abandon the property and stop paying rent.  Partial CE – Assuming T’s overall use of the property is not unsuitably diminished, T would not be allowed to vacate and would have to pay pro rata for any part they can use. If the part from which T is evicted is essential to the T’s use, then it is considered a total eviction and can cease paying rent for the whole. o In minority of jurisdictions, CE is treated like actual and if there is any eviction, the T can’t vacate if part of premise o What is minority and majority rule for actual partial and constructive partial.

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Illegal leases Remedies/rights and duties of to LL o Common Law duties:  Caveat emptor – “as is” – T doesn’t negotiate with LL wrt the condition of the property. Exceptions:  1. Short term leases of furnished dwellings – LL had obligation to ensure that the premises remained livable  2. LL had duty to disclose latent defects of which the LL was aware or should have been aware and T is not (undiscoverable w. reas diligence by T) o LL liability does not extend to obviously dangerous piece of machinery (manufacturer may still be liable)  3. To the extent that there were common areas – LL was obligated to care for them in a workman like manner – to the extent that LL makes repairs they are not obligated to make, LL was obligated to care for them in a workman like manner o  4. LL not permitted to make fraudulent misrepresentations re: the phys. characteristics of the property  LL doesn’t have responsibility for the criminal activity of a 3 rd party, but if securing the common areas is an element of his cl duty (or if he undertakes to make repairs, he must do so in a reason manner). P. 517, prob. (b).  Common areas – If disturbance in common areas, LL must make reas efforts to rid the disturbance. Despite reas. efforts, the T may still have cause for CE if the disturbance substantially interferes with the premises and the intended purpose of use.  LL’s responsibility to common areas varies depending on the lease’s description and extent of common areas.  o If T defaults  Use of self-help  CL: LL could use self-help to retake land under certain circumstances (peaceful) o 1. the LL is legally entitled to possession, such as when T is a hold-over o 2. LL’s means of entry are peaceable. Must take property voluntarily to be peaceable (if T takes gives up property voluntarily then LL can take peaceably) o Policy – to discourage LL from doing things that might erupt in violence or in non-peaceable situation.

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Modern Rule: A landlord must use summary proceedings (judicial remedies) and may not use selfhelp if T is in default. Berg v. Wiley (1978 MN SC) (Wiley tried to use self-help (hanging on awning and changing the locks) after Berg breached the lease. Ct adhered to the CL for Berg (means not peaceably-voluntary transfer), but adopted new standard prospectively) o Several jurisdictions retain self-help, but in those peaceable entry is required (Peaceable is not defined in same way) o Judicial mechanisms for LL to get hands on prop immediately when T is destroying property o Policy: discourage LL from doing things which might result in violence o Restrictions on residential leases tighter than commercial leases. o If T abandons property or surrendered the premises  LL has a duty to use reasonable efforts to mitigate damages (leases more like contracts)  A LL is under a duty to mitigate damages by making reasonable efforts to re-let an apt wrongfully vacated by the tenant. Sommer v. Kridel (1977) (Sommer failed to make efforts to re-let an apt when Kridel abandoned it. Broken engagement and LL turned down perspective and sued K for all rent. 2 cases) o LL must have some indication that the T abandoned. Riverview. o Burden is on LL to prove that he mitigated b/c he is in position to do so. Riverview. o Reasonable efforts are putting apt back on market same as other apts. o Policy: efficient use of land and resources  If mkt price decreases and during time LL was attempting to mitigate damages, T owes LL the difference. LL is entitled to recover full amt under lease. o LL keeps excess rent  Surrendering the lease – if the T surrenders the lease and the LL accepts, then the T has no future obligations under the lease (not even future rent) – LL is entitled to damages for the breach including decrease in market value. T has no future obligations under the lease if LL accepts surrender.  If LL doesn’t accept surrender, still duty to mitigate and LL does this by renting to another T. If that T rents for lower, the first T still on the hook. If that rents at higher rent, first T is entitled to difference but is still liable for whole lease term. At that time, the LL can release the first T and then first T is not on the hook and LL is responsible.  If LL accepts surrender, no going back. Illegal Leases o Illegal lease must rest on a substantial code violation that existed at the time the lease was entered into. Minor technical violations and violations of which the LL had neither actual nor constructive notice do not render a lease illegal. o T can claim illegal lease while continuing to occupy the premises. Abandonment is not required. However, T is required to pay the fair rental value of the property during that occupancy (but not more than original amt). Between CE and illegal lease, T is exposed to less liability with illegal lease claim. o Not waivable o A T at an illegal lease is a tenant at sufferance. Warranty of Habitability o The rental of any residential dwelling unit contains an implied warranty, whether oral or written, stipulating that the LL will deliver over and maintain, throughout the period of the tenancy, premises that are safe, clean and fit for human habitation. The warranty cannot be waived. Difficult to define. Habitability is determined on a case by case basis.  Hilder v . St. Peter (1984) (D leased an apt unfit for habitability to Hilder (P). Though Hilder informed St. Peter of these defects, he failed to remedy them.) o Code violation enough are not alone, T still needs to demonstrate that health and safety are compromised b/c of the condition. o Most jurisdictions recognize the warranty of habitability o Breach of warranty occurs even if it is not LL’s fault. E.g. garbage strike. P. 528(4)(a). o Policy: As a society, we don’t want people living in unsafe or unhealthy environment. o Process:  When breach occurs, T must give notice to LL and give the LL a reas opportunity to rectify the problem  If LL fails to fix the problems remedies available are:  1. Sue (for specific performance, damages) o Computation of damages: must look at fair value of rental property w. the problem. In Hilder, fair rental value was determined to be $0. Other damages (kids got sick, sicknesses, etc) and punitive damages also available.  2. Self-fix it themselves and offset price against rent that accrues. Doesn’t mean T can stop paying rent.  3. T could vacate and cease paying rent o History of LL/T relationship  Began with caveat lesses – T could only Sue LL if there were actual eviction

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Them, T could sue LL and then leave in case of CE Then jurisdictions began to recognize illegal lease offense when apt wasn’t up to code (unwaivable) Then, property doesn’t provide safe and healthy place to live, implied warranty of habitability (unwaivablethough practically, a T can waive these by failing to assert his rights. Discrimination and Rental Housing o Statutes:  Civil Rights Act (1866) § 1982 – All citizens of the U.S. shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease sell, hold, and convey real and personal property  Bars all racial discrimination, private and public in the sale or rental or property  Fair Housing Act § 3604  Unlawful to discriminate based on race, religion, gender, handicap (incl. AIDS), familial status, national origin, but not against marital status or sexual orientation or lawyers. Familiar status includes anyone with kids.  Distinguishing the two: The 1866 law is narrower than FHA b/c reaches only racial discrimination, not discrimination in the provision of services and facilities, and does not prohibit discriminatory advertising; it is broader in that it contains none of the exemptions found in the FHA (and 1866 had no cap on damages) o In private home, can rent to whomever you chose, but Fair housing Act says its unlawful to print or publish an ad that indicates any preference limitation or discrimination. E.g. ad that says apt in private white home is discriminatory. P. 438. If just “private home” then violation of Civil Rights Act (1966) b/c she discriminated, but not FHA, because exemption. o Proving discrimination in housing  Burden of proof  1. Initially, the P has the burden to prove they are in the protected class and have prima facie case: o 1. Member of statutorily protected class o 2. Applied for Rent o 3. Qualified to rent o 4. Apt was available at the time they were seeking to acquire it o 5. Denied the rental  2. Now, BoP shifts to the D to show they had some permissible reason for not renting o Must explain actions to show that there was no discriminatory intent. If choose not to respond, lose.  3. Now, BoP shifts back to P who must prove that D’s reason was a pretext and the real reason was based on a discriminatory intent. o Housing providers can defeat discrimination claims by showing legit reasons for refusing to rent, and factfinders are allowed to inquire into the providers’ subjective intent in questioning g prospective applicants. Soules v. U.S. Dept of Housing and Urban Development (1992) (A single mother sued for discrimination aft being denied the opp to apply for an apartment based on her family status.)  Disability discrimination:  Amendment to FHA to include people with disability as a protected class in 1988 o Rule: When one has a disability, it is discriminatory to refuse to make reasonable and necessary accommodations for the people  Often numerous laws, regs, that affect a particular set of facts. Those laws may require different levels of proof so important to discern which remedies appropriate under each law.  Accommodations must be reasonable and must take both parties’ needs into account. Bronk v. Ineichen (1995) (2 deaf ladies desired to house a dog in the apt, but prohibited by L. Held, error in jury instructions b/c no clarification b/t state and fed laws and different standards)  Tenants Rights  Rent control – usually seen as causing more trouble than good o Pros: prices are more affordable for lower income people  Protects renters from LL’s capricious price increases o Cons: No incentive to provide housing if can’t earn money.  Economists think it is counter-productive  Con right to safe and healthy housing?  Public housing  Housing subsidies seem to o Pros: affordable housing o Cons:

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Land Use Controls
Servitudes – Private land use controls - Limited non-possessory interests in property which binds or burdens one piece of property for the benefit of a person or another piece of property. o Types:  Easements  Profits  Licenses  Real Covenants  Equitable Servitudes o Positive Easements  Easement created by written instrument gives a person the right to come onto the land of another person. As a general matter, being an interest of land, must comply with SOF, meaning they have to be in writing. Exceptions: fraud, partperf and estoppel.  Remedy: injunction or damages.  An easement can have a duration comparable to any of the possessory estates. An easement can be in FS or for life, or for a term of year. o Easement is not revocable.  There are occasions in which easements are created by writing, implication or by prescription.  A grantor can reserve an easement in property for a person other than the grantee. Willard v. First Church of Christ, Scientist (1972) (McGuigan sold Petersen a lot with an easement allowing nearby church-goers to park on it, but Petersen sold it to Willard w/o mentioning the easement.) o Rejected CL Rule – 2 parties to the conveyance, the grantor and the grantee. The CL rule: when 2 parties conveying land, interest cannot be reserved for a 3 rd party. o Many jurisdictions have abandoned the CL rule and adopted this rule, focusing on the grantor’s intent. Here, if you did away with the easement it would be inequitable b/c the demonstrated intent of the parties was to provide rights to the 3p.  Rationale for intent rather than CL  Inequity would have resulted by virtue of the discounted price that Peterson paid, acquiring a FS subj to the encumbrance.  Willard could have researched the deed and discovered the encumbrance. Or Buy Title Ins.  Peterson violated a covenant b/c he falsely represented that the property was free from encumbrance, when indeed it was encumbered. So Willard can sue Peterson for damages.  Willard could not show reliance b/c he would have to say that he knew about the attempt and that he knew the CL rule precluded such a transfer. But he didn’t know about the easement o Possible drafting techniques to avoid CL problem:  1. Sell lot to 3p (church) with understanding that church sell it to other parties (Peterson with easement)  2. Directly convey an easement to the 3rd party (church) and then convey the property to buyers (Peterson or Willard) with the deed already encumbered.  3. Retained easement for self and then later transferred it to the church.  Categories of Easements:  Appurtenant Easement (belongs to the land)– benefits the dominant tenement and burdens the servient tenant. An easement always benefits land. Benefits dominant party b/c the owner has the right to enter into the servient land. Attaches to the land. An easement benefits dominant tenement in the use of his or her land. o Dominant tenement is the propertye being benefited and servient tenement is the property being burdened. o In Willard, it was an A easement but could make argument for in gross b/c the grant was vague.  Easement in Gross (belongs to the person)– runs to a person and burdens the servient tenant but there is no dominant tenant. Safe if specify person or argument by name, otherwise arguable, A easement. Positive Negative Appurtenant Easements Runs with land and allows use Runs with land and restricts use Easements in Gross Runs with person and allows use Runs with person and restricts use. Licenses – A license is permission given by the occupant of the land allowing the licensee to do wsome act that otherwise would be a trespass. (E.g. plumber). License is revocable at the will of the licensor. An easement is classified in the same manner as other estates in land. So duration is defined by the conveyance. o Distinguished from easement – A license is permission for the licensee to use land and the easement is an interest the grantee holds in the land. SOF doesn’t apply to licenses b/c not an interest in land. o License can therefore be oral, since it can be revoked at anytime and therefore the duration isn’t necessarily for a year. o Under certain circumstances, a license resembles an easement – when license becomes irrevocable. o License can become irrevocable based on estoppel or if the license is coupled with an interest.

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1. Estoppel – a license can become irrevocable if the licensor allows the licensee to detrimentally rely on the continuance of the license without some renewed assertion by the licensor that his can be revoked at any time  A license cannot be revoked aft the license has erected improvements on the licensee’s land or lecensee’s land at considerable expense while relying on the license. Holbrook v. Taylor (SC KY 1976) (Holbrook tried to block off a road on his property aft Taylor used it extensively while building a tenant house for himself. Taylor asserted prescription and estoppel. Not prescription b/c didn’t use it exclusively and wasn’t adverse. Held, Taylor relied on the continuance of the license to his detriment by spending money, improving the roadway. Holbrook knew that Taylor was building a house and didn’t remind Taylor of the revocability of the license.) o 2. If it is coupled with an interest, the right to remove something from your property (e.g. right to mine coal)  Prescriptive Easement – AP wrt an easement (except exclusivity is not req’d) – must use land continuously, adversely and uninterrupted. Similar to irrevocable license by estoppel.  Implied Easement o Created by operation of law, not written circumstances and can be applied in only in very narrow circumsted: intended easement based on apparent/prior use existing at time servient tenement where the parties(  1. Based on prior use (quasi-easement)  If use something from one part of property to benefit the other part of property; if divide and sell land, the quasi easement exists if it is apparent, necessary and continuous. Use of one part implies that an easement was intended. It is not a legal easement b/c O cannot have an easement in own land.  An easement may be implied if, prior to the time the tract is divided, a use exists on the “servient part” that is reasonably necessary for the enjoyment of the “dominant part” and a court determines that the parties intended to use to continue aft division of the property. Sometimes called a “quasi-easement” b/f the tract is divided b/c an owner cannot hold an easement on his own land. o Must be apparent – put purchaser on notice (related to intent), o Must be necessary (strict for English CL implied reservation), otherwise, reas. necessary o Must be continuous  Relates to apparent – if not used on continuous basis, may not be apparent  If easement or use of property is not continuous, that undercuts that it is necessary.  English Rule – If easement is not express, rules distinguishes b/t the purchaser of the property and the seller of the property – implied reservation of easement had to apply strict necessity and implied grant did not need strict necessity o Implied Reservation –  When owner is selling servient and keeping dominant:  If the owner wishes to assert a reservation of the easement, English courts would only honor the reservation if based on strict necessity unless it is express.  Policy – if selling property, giving deed to someone else, if you intend to give an easement you ought to say so, shouldn’t allow you to sell and then claim more than you expressed in your deed. o Implied grant.  Owner sells dominant and keeps servient. Owner wishes to assert a grant of reservation:  Strict necessity is not req’d b/c the seller of the property was in control. If they wanted to prohibit the person from exercising the easement rights, they could have indicated that. Moreoever, the person is buying a piece of property, they have no alternative. That consent is implied.  Doesn’t have to be strictly necessary.  No automatic easement, still have to look at intent of parties, and apparent and continuous and reasonably necessary use  Modern Rule – (now majority rule) – Intent is touchstone. o Doesn’t address categorical distinction b/t grant of reservation of easement. Ct evaluates the intent of the parties and lists 8 factors to decide this (look at case), including necessity and whether use is apparent and continues. Strict necessity is just one of the factors for determining intent. Van Sandt v. Royster (1938) (Van Sandt claimed he never granted an easement for a sewer drain which connected his house to two others and flooded his basement. Outcome, D prevailed, Easement right continues to exist.)  Elements: sewer was there and apparent with a little bit of inspection, it was necessary, it was continuous.  2. Based on necessity (strict) – Must you have a quasi easement to later have an implied easement of either kind.  When the O of tract of land sells a part of the tract and by this division deprives one lot of access to a public road, a right-of-way by absolute necessity is created by implied grant or reservation over the lot with access to the public road. The owner of the servient parcel has the right to locate the easement, provided the location is reasonably convenient. An easement by necessity terminates when the necessity ceases.  To create easement by necessity, the necessity must have existed at the time the estate was created. Othen v. Rosier (TX SC 1950) (Othen used a roadway on Rosier’s property to access the public highway, but Rosier later built a levee which made the road impassable for Othen. Outcome, Othen could not establish strict necessity b/c he didn’t show he was land-locked when estate was created. Ct: Othen should have known that there was no easement across the property so he bears burden of having failed to recognize the appropriate burden)  Must be absolutely necessary - Three elements: o

1. Unity of ownership of alleged dominant and tenement estates 2. That roadway was necessity and not a mere convenience. 3. That necessity existed at the time of severance of the 2 estate. The strict necessity must be created at the time the estate was created.  Burden is on person claiming the easement to establish strict necessity. Failure to prove strict necessity at time of conveyance means can’t establish strict necessity.  No license and estoppel here b/c Texas didn’t recognize irrevocable license based on estoppel. Most states have private condemnation action. If land is landlocked, you have to pay to go across land. Or you could privately negotiate for the use of the property.  If it were an easement by necessity, once the necessity was removed, the easement goes away,  If easement is based on prior use, it doesn’t disappear (Van Sandt) o Scope of Easements –  Owners of dominant tenement is not permitted to expand an easement to property other than the dominant tenenemnt. Question of increase in burden is irrelevant for purposes of that determination. Brown v. Voss (1986) (Voss blocked off a private road easement on his lot A for parcel B aft Brown started building a house that would sit on both parcels C and B. Outcome, result is counter to what rule is. Easement continues to exist aft court engaged in rough justice b/c Voss had reqursted an equable remedy and ct awarded equitable relief – no injunction – easement stays.)  If an easement benefits its owner in the use of a particular parcel of land, any extension of the easement to other parcels is a misuse of the easement.  Expansion of easement prohibited wrt addition of parcels, but not addition of use. Only if the use is expanded beyond the intent of the original parties  Use of easement cannot be expanded beyond the intent or contemplation of the original parties. If it does, the servient tenement is entitled to accident. E.g. If dominant parcel is divided up into 100 parcels. It the servient tenant can prove th at the easement burden has expanded beyond the intent of the original parties, he might be entitled to damages. o Negative Easements  Right of owner of dominant tenant to make the owner of servient tenement refrain from doing something on the servient tenement that would otherwise be lawfully permitted to do.  NE not favored by common law  Under English CL, 4 recognized easements:  1. Servient T’s duty not to block light from dominant tenement’s windows  2. Not to block air from dominant tenement’s windows  3. Not to remove lateral support form dominant tenement’s building (bldg could otherwise collapse – req’d to leave that structure in place for support)  4. Agreement of servient tenement not to interfere w/flow of water to dominant tenement  Reason English cts opposed to negative easements b/c relatively difficult to discover. Person has obligated self not to do something – no evidence of refraining from doing something as matter of obligation.  Negative easements could be established by prescription  Under American law:  Am cts are not very generous w/neg easements, but do recognize the 4 easements plus other situations(including view).  Am cts do not recognize neg easements by prescription. Alternative include: o trespass if physical invasion or o private nuisance, a non-trespassory invasion of the private use and enjoyment of land. Nuisance is similar to and in practical sense identical to negative easement. Prah v. Maretti (P claimed a negative prescriptive easement when D was going to construct house that blocked sun from P’s solar power unit. Held, ct doesn’t’ recognize neg prescriptive easements, but could use nuisance instead.)  An express negative easement for view will be enforced if it does not violate the law. When document is not clear on its faces, fallback position is parties’ intention. Petersen v. Friedman (Express easement to refrain from anything that would block view was enforced b/c the TV antennae exceeded allowable height)  Remedies available under this scenario may be different than remedies for easement o Easement – beneficiary can be entitled to injunctive relief for damages o Covenant – injunction often only remedy.  Negative easements cannot be implied.  Covenants–promise to do or not to do a certain thing relating to use of the land o 2 types  1. Covenant that runs with land at law – real covenant  Remedies available: damages, in addition to remedies of injunction  2. Covenants that run with the land at equity – referred to as equitable servitudes  Remedies available: only equitable injunction.  Privity  1. Contract privity – if present, privity of estate is not relevant.

o o o

2. Privity of estate – comes into play when its not just the original parties, but when successors are burdened by or seek to enforce the agreement o Covenants running with land at law - Real Covenant  Enforceable by successor owner of promisee’s land and against successor owner of promisor’s land.  What is required so that the successors will be bound or privileged by the covenant?  1. Intent – parties must intent that the cov runs with the land  2. Touch and concern the land o 1. It must relate to the land and o 2. It must affect the covenantor or promisor in his capacity as the owner of the piece of land o 3. It must increase promisee’s use of enjoyment of his land as the owner or possessor of that land.  3. Must be privity of estate (horizontal privity is always req’d) o 1. Horizontal Privity  H Privity of estate b/t original promisor and original promisee  Under English law, can only exist if the relationship b/t promisor and “ee” among LL and T, so only horizontal if there is lease.  In Am (depends on jurisdiction), HP exists in  (1) LL-T relationship or  (2) If there is grantor-grantee relationship b/t promisor and promisee or  (3) If there is a concurrent interest in the property by both promisor and promisee (must have interests in other’s property – if A has a FS and B has an easement, either could covenant with the other, not to do something or to do something and would have horizontal privity). Not necessarily mutually exclusive. o Some states, one or more of the three is req’d, o In every state, HP exists if grantor/grantee relationship.  Like a contractual relationship, but runs to successors  Wrong to say privity of contract establishes HP.  There must be hp if the burden or the benefit is to run with the land.  E.g. if A and B sign agreement to restrict each’s land to single-family – no horizontal privity b/c not LL/T, not grantor/grantee and not concurrent interest  o 2. Vertical Privity  In many, but not all, states VP is required  In all states VP is req’d when the burden runs with the land.  Burdened property - to est. VP (running of the burden), successor must have purchased the same interest – FS to FS.  Benefited Property - std for the running of the benefit is not as stringent  Successor must have purchased some interest but not necessarily the same (lease rather than FS)  Sometimes VP isn’t necessary o One who holds the burden will be liable in damages – prefer that if burden will run, successor who will be liable has to be in the same position that the original person b/f the burden was interested o The person suing has the benefit, the person being sued has the burden. o Equitable Servitudes – covenants that run with the land in equity – A cov, whether or not running with the land at law, that equity will enforce against assignees of the burdened land who have notice of the cov.  Not all jurisdictions follow recognize an equitable servitude that arises by implications. Must look at law in jurisdiction.  Substantial minority recognizes equitable servitude implied  Requirements:  1. Intent that cov runs with land  2. Cov touch and concern the land  3. Prior notice – successor must have prior notice of the cov. Knowledge by the person against whom the action is sought (actual or constructive notice)  Suspend HP requirement  A cov will be enforceable in equity against a person who purchases land with notice of the covenant. Tulk v. Moxhay (England 1848) (Tulk had a cov which req’d maintenance of a garden on some land (affirmative covenant) and no building (neg. covenant), but Moxhay knew of the cov and later tried to put buildings on it aft buying it. Tulk was granted injunction. Tenants also have easement for pathway to use the garden) o This case created equitable servitude.  Remedy: Damages are not available for equitable servitudes o Implied Equitable Servitudes  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. Sanborn v. McLean

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(1925) (M who should have known from neighborhood scheme, tried to build a gas station on their lot in a residential district but were enjoined from doing so by their neighbors due to the implied equitable servitude.)  Reciprocal negative servitude by implication (all owners benefits and were burdened)  Initial implication arrives at the moment O sells the first piece with restrictions according to a development scheme – at that moment the restriction adheres to the other lots as well. Subsequent buyers must have actual or constructive notice of cov (can look in public records). o Inquiry notice – must be reason why all the property is uniform – should look at other conveyances o Touch and Concern the land  An aff cov to pay money for improvements or maintenance done in connection withy, but not upon the land which is to be subject to the burden of the cov does touch and concern the land, and a homeowners’ association, as the agent of the actual owners of the property, can rightfully enforce the cov. Neponsit v. Emigrant (1938) (Emigrant Bank took title to land previously deeded by Neponsit Realty, and the Neponsit association tried to foreclose a lien contained in the earlier deed.)  Who has right to enforce the servitudes or easement: o Emigrant, acquired deed and never agreed but has to paid because the cov runs with the land  Court evaluates whether it is a cov at law or an equitable servitude o Cov at law  1. Intent  2. Privity – there is HP b/c  HP - Grantor-grantee relationship here. One has burden and one has benefit.  VP doesn’t exist here o Benefit is to the property owners; burden is with the bank  Ct isn’t going to let form over substance. HOA may sue to enforce the benefit of a covenant even though the association succeeds to no land owned by the original promisee.  3. T and C  Prior decisions say an aff cov doesn’t run with land. Here, they use a more expansive def of T and C: if the promisee benefited in the use and enjoyment of the use of the land, or the land is made more valuable as a result of the promise, then there is T&C. If the promisee is benefited in the use and enjoyment of the land where the land is made more valuable as a result of the price, then there is touch and concern. Each homeowner has ancillary rights – those are adjuncts to the property to which they own FS. Fact that other owners have to pay the fees enhance the value of the property – if no one pays, the amenities will fall into disrepair. In addition, it adds value to the land or the promisee. o Promisor – has to be burdend by the promise, and in this case, the promisor (bank) has to pay 4 dollars a year and it is burdened only b/c it is an owner of the property – so their property is made less valuable as a result of this covenant – o In cases where property is benefited and burdened by the same covenant, how do you figure out vertical privity? o Scope of Covenants  Generally, people can do what they want as long as they don’t interfere with others. People have a right to enter into contract  Limitations – can’t violate public policy, statutory or constitutional law.  Judicial enforcement of a restrictive covenant based o race constitutes discriminatory state action, and is thus forbidden by the equal protection clause of the 14 th A of the Con. Shelley v. Kraemer. (1948) (A black couple were buying a house while unaware of a racially based restrictive covenant on that street; the white homeowners tire to stop them.). Today, this would be illegal under FHA and Civil Rights Act.  Fair Housing Act  Civil Rights Act  Zoning ord cannot override privately-placed restrictions, and a trial court cannot be compelled to invalidate restrict cov merely b/c of the zoning change. Creating an ex post facto law o Difference b/t neg easement and neg covenant:  Remedies for breach are different.  Violation of neg easement – monetary damages and injunctive relief  Historical distaste for negative easement so to avoid the excessive expansion of neg easements, neg cov may be used.  Neg cov that is equitable servitudes – only injunctive  Neg cov that runs with the land at law – both. o Termination of Covenants –  1. Equitable Defenses  1. Change of Circumstance Change of Circumstance: 1. If change in neighborhood, the change has to affect the entire neighborhood, not just border

2. The purpose for which the cov was originally agreed to is no longer capable of being fulfilled – land is no longer suitable for use as it was originally intended 3. Cov is of no substantial benefit to all of the homeowners. A restrictive cov 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 w/I the subdivision. Western Land co. v. Truskolaski (1972) (Homeowners want to prevent a shopping center form being built in their subdivision, even though the surrounding area has become more crowded and more commercialized).  Development Creep – border lots are not appropriate for the use of the cov, if you allow them to be used for commercial, then it creeps and you get a new set of border lots.  As a general matter, the subdivision can still be used for the way the original purpose  2. Acquiescence – If the P seeks to enjoin the breach but they have allowed others to engage in similar breaches in the past, the P will be precluded from asserting its rights under the cov b/c they have acquiesced b/f  3. Unclean hands – ct doesn’t usually give relief to P who has engaged in the same behavior he intends to enjoin. In some jurisdictions, the ct says the covs go away in equity, but as a legal matter, the covs are still there, so what we will do is to allow the shopping center to be built on the end, but have to pay damages for the breaking of the cov – the covs go away fro the entire subdivision. Legal Defenses  Merger – if title of proper to all affected property comes into the hands of one property owner, covs are merged into the fee ownership of the property and they disappear – b/c if one person owns the property, he has the right to do with the property whatever they want to do with the property. Cov terminates as a matter of law.  Release – if party benefited by the cov, releases, then it won’t be enforceable anymore. o Within the context of a cov that covers a number of lots, the fact that one person releases doesn’t mean that the cov is released – all the people who benefit by the cov must release.  A landowner in a subdivision under a restrictive covenant has the right to insist upon adherence to the cov even when the other owners consent to its release. Rick v. West (1962) (West bought small piece of land of a large track from Rick under a restrictive covenant, and refused to release the cov when Rick attempted to sell similar land to a hospital)  Alternatives in case of holdout - Ct could have given Rick an equitable remedy, but Rick would have had to pay damages. Or, the gov’t could use ED if hospital was in public interest.  By its own terms – e.g.Cov for term of years – sometimes cov ends by its own term – expiration set in deed  Statutory limitations – Covs can terminate based on statutory limitation. E.g. in GA, cov expire aft 20 yrs.  Abandonment - if many violations of cov, and they are so widespread that no longer common plan, cov will be deemed to be abandoned. o

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Nuisance

Nontrespassory invasion of someone else’s property Nuisance per se (at law) – unlawful nuisance (by statute or CL), no matter how reasonableness it is. Could change with surroundings.  Nuisance per accident – another way of regulating use of land, effected through judges’ decisions. An otherwise lawful act or structure which can become a nuisance by virtue of its location, surroundings or the manner in which it is conducted or maintained. 2 types: o 1. Unintentional  conduct must be negligent, reckless or ultrahazardous o 2. Intentional and unreasonable  1. Intentionally acts for the purpose of causing the nuisance or intends the result or intends to engage in the activity with knowledge that the result of the operation will result in harm to the P. (knowledge that the nuisance is a result of his conduct and knows that the nuisance is substantially certain to impair’s use and enjoyment of property  2. Harm occurs  3. Unreasonable under the circumstances  Interferes with P’s use and enjoyment of his property  How to determine if action is reasonable under the circumstances  Balancing test –. Harm to P if actvity continues vs. utility of activity including effect on D. (utility of the act balanced against the harms to the P) o Duration and magnitude of the harm o Has to contemplate a threshold level as well; if mega CO vs a small P here.  Jost test – looks solely at the P – it is a threshold test – once you harm the P so much, court will say the activity is unreasonable  Restatement test –

1. Balancing test – (don’t know if this is right - Test the utility of D’s action on for the entire community vs the harm to the P (if activity is unabated) or) or  2. If it costs D so much to rectify the harm that the D is forced to go out of business then the activity is not unreasonable (perhaps concession to economists)  A private nuisance occurs when there is substantial interference with the use and enjoyment of land, and that interference is either intentional and unreasonable, or unintentional and the result of negligence, recklessness, or abnormally dangerous activity. Morgan v. High Penn Oil Co. (1953) (Trailer park owner sued for injunction against operator of a nearby oil refinery which produced nauseating fumes. Ct held that it was nuisance per accident, intentional and unreasonable) o Remedies: damages vs. injunction  don’t want people to be deprived of property rights. Damages in some circ may amt to a deprivation of property rights so injunction may be more appropriate Analysis: 1. If intentional, must determine whether the behavior is unreasonable under the circumstances. If unintentional, look at whether the activity is negligent or ultrahazardous or reckless. 2. If nuisance is decided, that is, if intentional and unreasonable, then must balance the equities to determine whether injunction can be granted or just damages.  Balancing the Equities – Harm to public if injunction is granted vs. harm to P if not granted. o Injury resulting to D (and the public?) if injunction is granted vs the injury sustained by the P if don’t grant injunction. o Even though a jury finds facts constituting a nuisance, equities must be balanced in order to determine if an injunction should be granted. Estancias Dallas Corp. v. Schultz (1973) (The Schultzes sued Estancias to permanently enjoin it from operating excessively laoud equipment on a neighboring building. Here, there was no harm to public and would be harm to D but not as much as P, so grant the injunction b/c equities favor P) o Threshold test to determine whether injunction should be granted – If damage exceeds100k, then damage is a lot and injury should be granted. o Cts may award perm damages as an alternative to an injunction where the D and the public would be substantially harmed by injunction. Boomer (1970) (A ct found that a cement plant constituted a nuisance to neighbors, but denied an injunction, instead ordering D to pay perm damages to the Ps)  Ct could have granted injunction, but postpone its effect until aft a specified time.  Ct says that leg should address wide-spread pollution problems, such as factories, rather than cts.  Damages are measured by pain and suffering the people continue to endure the property damage.  Ct also takes into account the huge investment that benefits the community. Don’t want to rip that away from Ds to accommodate a minimum number of Ps. o If a private nuisance, probably only damages o Public nuisance is generally remedied by injunction. o But for o Per se can change with surrounds.  Coming to the nuisance –. It is not a defense. (normally not entitled to relief). It is something the ct considers in deciding if there will be relief and what that relief is. o An otherwise lawful activity can become a nuisance b/c others have entered the area of the activity, and thus be enjoined; if the party requesting the injunction, however, is the one that creates the need for the injunction, that party can be req’d to provide compensation for the cost of ,moving the shutting down the activity. Spur (1972) ( Spur owned a cattle feedlot well outside Phoenix for years, but when Webb’s residential development grew to that area, Webb wanted the feedlot removed. Held, it is a nuisance, but judge awarded feedlot damages b/c Webb came to the nuisance – Webb sued in equity hoping to get injunction, but had to pay instead b/c ct thought it was unequitable to grant it.)  Coming to the nuisance – ct takes it into account when deciding relief but it is not a defense  There is a private nuisance – b/c it prevents the private enjoyment of land.  There is also public nuisance b/c there was a statute Is all NPS public nuisance – see spur? o Gov’t cannot come to the nuisance. Distinction is that on one hand it is private individual pursuing own agenda and on the other hand, it is the gov’t acting for the benefit of the people.  Private nuisance – when a non-trespassory invasion on a land-owner’s property and that landowner is injured in the use and enjoyment of the use and enjoyment of her land as a result of that invasion. Only the landowner has a cause for private nuisance b/c it has to be some activity that impairs your land. o Go through jost test and restatement.  Public nuisance – occurs when someone engages in activity that is detrimental to health safety or public welfare of the community. Any member of the community has standing to sue for public nuisance; o however, qualification, at CL, the person suing had to suffer from a special or unique damages as opposed to the general damage b/c as a general proposition it would be the gov’t who would be the P in these cases. o Gov’t has right to come in and abate it. o Private right of action if person can prove some personal damage/injury o Nuisance per se is public nuisance?

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Eminent Domain and Regulatory Takings
Under Con, gov’t has power to take land, but takings must be paired with just compensation. 5th A. o Property can only be taken for public purposes. Gov’t never permitted to take private property for private purposes irrespective of compensation the gov’t is willing to pay. o Rationale for Power of ED: Power of ED is similar to PP – ED serves the purpose of taking property for preserving the health, welfare and safety of people. Sometimes, public interest trumps private interest.  Used to prevent hold-out situations where one person could private wide public benefit.  Power is necessary, but shouldn’t be abused or used in situations where it is not necessary.  In most jurisdictions, gov’t negotiates with property owners b/f condemning the property. Regulation that goes too far may be considered a taking and gov’t must provide just compensation. What is just compensation? – Fair market value. (Hughes: thinks we should have higher std.) Inverse Condemnation – when a P seeks a judicial declaration that his property has been taken by the gov’t. Seeks in effect a forced sale not merely damages. Scope of taking: o A taking involving the transfer of property from one private person to another satisfies the public use clause of the 5th A if it is rationally related to a conceivable public purpose. The ct will defer to both Congress and state and local legislative bodies when determining if the taking is rationally related to a public purpose. HI Housing Auth. V. Midkiff (SC 1984) (Half of HI’s land was owned by only 72 people, and the state wanted them to break up their estates. Held, must show deference to Congress and lesser leg bodies. The goal was an appropriate purpose b/c the concentration had adverse consequences and the gov’t saw it as a harmful interference with land market.)  Effects of decision –  Very low threshold now. o E.g. – Ct found public purpose where GM threatened to move to another state if gov’t didn’t take desired land to build a new factory. Public purpose was employment. Poletown Neighborhood v. City of Detroit.  Leg body has to articulate any conceivable public purpose and the ct defers.  Criticisms of decision: At the local level there may be more corrupt influences. E.g. local school board member may have a personal interest in land to be taken. Decision makers who are insulated from the effects of the decision are less likely to have a personal interest and thus be less corruptive. Rules of ED and Regulatory takings: o If perm physical occupation by the government or through the gov’t’s action, there is always a taking (regardless of public benefit) and just compensation is required. Lorretto v. Teleprompter (SC 1982) (A new building owner sued a 3P cable company over the cable it was allowed to install on the building by a state statute. Here, indirect taking)  Temporary physical invasion would not be a taking and cts must evaluate it on a case-by-case basis, must balance factors.  Level of compensation must then be determined and it can be small.  Criticisms: Although bright-line rule, still difficult to distinguish temp physical invasion and perm physical occupation. If take property for 10 minutes, that is a permanent taking, never get 10 minutes back. o If gov’t is engaging in an activity to abate a public nuisance, it is an exercise of PP and compensation is never required.* (exception) Hadacheck v. Sebastian (1915) (P built a brickyard outside city limits, but aft the city grew and surrounded it, the city said P violated an ordinance against brickyards.)  Ct determined it did nto take all value since the he still could extract clay for bricks  Gov’t cannot come to the nuisance. Distinction is that on one hand it is private individual pursuing own agenda and on the other hand, it is the gov’t acting for the benefit of the people.  Fine line b/t regulation of public nuisance and ED. One poor distinction = notion that gov’t is prohibiting a public bad (nuisance) vs public protecting or acquiring public good. o If neither a physical occupation nor an attempt to abate a nuisance, there is an ad hoc std.  Simply look at how regulation affects the property rights of an owner and if diminish the rights too far. Then compensation is req’d; if not compensation is not required.  If go too far or take too much, it is a taking and gov’t must pay. PA Coal v. Mahon (1922) (A company sold surface rights to some land to Mahon, but retained the right to mine underneath, and such mining was later prohibited by statute. Held, Act is uncon to the extent that the state doesn’t compensate the coal C and similarly situated folks) o Only know if taking has occurred if ct tells us. Here ct doesn’t say how much is too much. It is an ad hoc test. o Ct uses diminution of value to determine whether there has been a taking. o Dissent – this is regulation of a nuisance – o  Conceptual severance concept – don’t’ just focus on the coal that the gov’t “took.” But look at all the Coal on the property and compare the deprivation to the value of the whole. Then if to many o Criteria for evaluating when too much has been taken to require compensation. Penn Central Trans Co v. City of NY (1978) (Penn Central made plans to construct an office building over Grand Central Terminal, but was blocked by a

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Landmarks Preservation law. Here, ct didn’t hold a taking b/c there were mitigating options including TDRs and the Board did not deny them altogether and for investment-backed expectation reasons)  1. Owner’s distinct investment-backed expectation – owner is entitled to reasonable return on her investment at time of investment  2. Reciprocity of burden and benefit (adv) – something that inures to the benefit of the person that is negatively affected.  Alternative options to alleviate affect of Regulation is TDR.  CA ct said that if there is an aggrie Property owner entitled to compensation for temporary government taking of all use of land. If regulation is found to be a taking, people affected by that regulation for the period affected entitled to compensation for the period it was abandoned. Firs English Ev. Lutheran Church (1987) (A county ord kept a church from rebuilding its campground for several years, denying it of all use, and the church wanted to be compensated for that period of time. Held, owner is entitled to compensation for the period of time when the regulation was in effect.)  Even if the city chooses to modify, abandon it or they can choose not to enforce it. The owner is still entitled to compensation for the period of time when the reg was in effect. If a gov’t regulation deprives the owner of all economically beneficial use of the property and there is no other independent basis in the cl like nuisance, then it is a taking and compensation is req’d. Per se rule.  Lucas v. SC Coastal (1992) (Lucas claimed that a SC statute which barred him from building on his barrier island property resulted in a taking without just compensation. Held, where a regulation works to withdraw all value form property, it is a taking unless without the regulation, the gov’t would still be able to regulate or prohibit the use that is prohibited by the reulation in an effort to control cl nuisance (in which case, compensation isn’t req’d))  If not a public nuisance and don’t deprive owner of all economical useable value, just some, then apply takings analysis under PA Coal and Penn Central.  If public nuisance as defined by CL could be established in the absence of the regulation, Hadacheck applies. No taking if regulating a nuisance and thus no compensation is req’d even if take all value.

o   Exactions Conditional approval - Gov’t requires landowner to give up some right in order to attain a gov’t permit. Could be payment of money or giving up something to acquire a permit. There must be substantial gov’t purpose that underlies the exaction. There must be an essential nexus b/t the purpose and the means imposed to achieve it. o Whatever the gov’t asks you to give up must aid the gov’t in achieving the purpose. Nolan (1987) (Commission granted Nolan a building permit on the condition that allow the public to pass across his property to access a public beach. Held, purpose not to inhibit the public’s use of beach had nothing to do with public ability to see or use the beach; thus the requirement to give up an easement had no effect on substantial gov’t interest. No essential purpose)  Needs to be essential nexus b/t condition and purpose.  Courts are very deferential to legislature and if leg can determine that there is a connection then it is ok.  If we don’t have essential nexus, the Commission is taking a backdoor way to getting property – of course it is the interest of the state to do that. o If there weren’t a nexus, the issue would have to have been evaluated under takings rules. That is, whether it was a pure exercise of PP to abate a nuisance and no compensation req’d. If permanent physical occupation. o Ct doesn’t’ say you can’t do this, the ct has legit interest in making the flow possible and if they want to do it fine – do it as a takings. Establishing nexus is necessary but not sufficient to support an exaction. Then you must establish a rough proportionality b/t what you were requiring owner to give up and the damage it will cause. Dolan (1994) o Facts: req’d to give up 15 foot strip of property to create path. Was essential nexus b/t gov’t’s desire to reduce traffic and Dolan’s increasing size of building and attracting more traffic. Relationship b/t increase in traffic and potential offset in decrease in traffic from the path. Problem: ct doesn’t know how much more traffic it will create and the path will reduce. It is up to gov’t to demonstrate rough proportionality between its goal and what it requires owner to give up and it and in absence thereof, no exaction required.  If state asks you to give up something, what you give up must be roughly proportional to the damage that activity will cause if permit is issued. There has to be rough proportionality b/t what we ask you to give up and the state’s interest.  Item given up (property decrease in traffic) must be roughly proportional to damage caused (if permit is given increase traffic)  Gov’t must establish that there is some relation (b/t the bike path and the traffic), rather than just the fact that there could be (rs). Zoning General o Background: B/f zoning, land-use was regulated by easements, nuisance and covenant law. They represented a piece-meal land use regulation. In early 1900’s with rapid growth, some people wanted to plan growth a little more. Incompatible uses

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of property were popping up next to each other. Gov’t responded to the problem by dividing up land into categories of uses. Sometimes, it had a disproportionate affect on people. Zoning Ordinances were challenged o Definition – division of city into different types of districts based on purpose of use to prevent incompatible uses  Usually enacted at local level.  The power to regulate the use of land is a power that is held by the state. Various municipalities are given power to zone through enabling legislation passed at state level (delegates power to municipalities).  Typically, they regulate use height and area.  Often ordinances are cumulative (most restrictive to least restrictive)  (may be coming to the nuisance – although it is not dispositive)  Most restricted uses are generally permitted to exist in less permissive areas. Sometimes they are not for heavy industrial materials. o Effective dates –when zoning ordinances are passed and it restricts or prohibits an activity. May grandfather in. Sometimes it is a taking if no grandfathering in. o Scope of zoning – how broadly are municipalities permitted A zoning ordinances is a valid exercise of PP will only be declared uncon where its provisions are clearly arbitrary and unreasonable having no substantial relation to public health, safety, morals or general welfare. Particular ordinance may go beyond protecting health, safety and welfare of the community and as applied to an individual, could constitute a taking. o Village of Euclid (A realty company challenged a municipal ord. which established a zoning plan restricting the use and size of buildings in various districts. P’s land’s value plummeted as a result of the imposition of the ordinance.  Rationale – appropriate use of PP to separate incompatible uses to prevent a nuisance.  The ct can decide on an individual basis if it constitutes a taking. Scope of Zoning o If a structure would be unsuitable in appearance with reference to the character of the surrounding neighborhood and thus adversely affect the general welfare and property values of the community. Stoyanoff v. Berkley (1970) (Soyanoff wanted to build a Pyramid-shaped house in a neighborhood with more traditional looking houses, but city refused to issue a building permit. Held, ordinance is ok b/c is protected property values, a legitimate purpose)  Sometimes aesthetic restrictions are just couched in protecting value.  Hughes: thinks it would be better dealt with by covenants and nuisance law.  Probably not appropriate for gov’t to zone purely on aesthetics. Policy – virtually impossible to develop standards. Others say have an absolute right to property so long as affect others. o The leg may define what counts as a family for zoning purposes if the def is rationally related to the government’s legitimate interest. Village of Belle Terre v. Boraas (1974) (P and 5 others challenged a city ordinance which restricted land use to one-family dwellings and excluded households with over 2 unrelated persons.)  Deference to legislature if it can articulate some reasonable rational, basis for the ordinance (no fundamental rights are indicated).  Dissent – fund right to privacy applies to ordinance so apply strict scrutinyshouldn’t say who people can live with. Other problems: doesn’t achieve purpose if want to limit number of people. Could have 50 relatives in one house but not more than 2 related. Better to limit the number of people whether related or not if trying to preserve the city with reduced cars and numbers. o A single-family zoning regulation is not automatically exempt from FHA scrutiny, even if it indirectly limits the maximum number of occupants in a house. City of Edmonds v. Oxford House, Inc. (1995) (A city sued to enforce its residential single-family zoning restrictions against a group home for recovering alcoholics and drug addicts.)  Single-family zoning restriction is not exempt form FHA scrutiny  Under FHA and ADA, you have to be flexible in ways that people and certain disability that you don’t have to be with people that don’t have the disabilities.  Occupancy ordinances are exempt from FHA but the city’s ordinance was a definition of family that included numbers. If ord purports only to limit the number of occupants in the home, this is acceptable under the FHA. Ct said that city was wrong and that the ordinance is simply a definition of family. It is not just an occupancy limitation. o Zoning ordinances may be invalidated if they restrict for impermissible reasons.  Under this state constitution, state has obligation to look out for welfare of own citizens of whole state so no municipality is able to exclude a whole group of people based on zoning ordinance. So. Burlington County NAACP v. Township (1975) (City enacted a gen zoning ord which effectively prevented low and middle income person from acquiring affordable homes within the township. Held, zoning ord uncon b/c violated fund right of housing)  This case is decided on the NJ con. Ct read the NJ con to contemplate housing as a fundamental right. So ct is much less deferential when it feels the ord deprives a certain segment of a fund right. Doubtful that it would have been req’d by U.S con b/c no right to housing.  There may be a purpose for which this ordinance may be ok, but lowering taxes not ok reason to restrict (environment reasons may be ok) o If a zoning law or regulation has the effect of depriving a property owner of the lawful pre-existing non-conforming use of his or her property, it amts to a taking for which the owner must be justly compensated. PA NW Distributors v. Zoning Hearing Board (1991) (Aft an adult bookstore was opened a local zoning board enacted an adult business ord which gave

the bookstore operator only 90 days to comply. Held, amortization is never appropriate where you are trying to close a preexisting non-conforming use.)  In some jurisdictions, amortization is allowed, and the time frame must be reasonable.  Alternatives for community to get rid of bad business:  1. condemn and take and pay  2. Get a nuisance  3. Wait for grandfathering to end – use can only be shut down if owner abandons the use and then it will not be permitted to be restarted. Grandfathering applies to anyone who would buy the property (b/c the alienability of property) o Variance –  Permission given to a landowner to use his or her property in manner that is otherwise prohibited by a zoning ord.  Commons v. Westwood Zoning Board of adjustment (1980) (A builder trying to construct a home on a lot that was below the local zoning ordinance’s minimum size requirements was denied a variance. They tried to conform it and sell it to neighbor.)  This is non-conforming pre-existing use  Requirements for obtaining variances: o 1. Undue hardship  Property owner is deprived of any use as a result of the zoning. The proper become value-less.  Even in case of undue hardship, the owner is not permitted to get a variance if it will subvert the reason the ordinance was passed. o 2. Whether granting the variance would subvert the purpose of the ordinance - even when undue hardship, owner must meet further requirements  Affirmative duty to mitigate to make the lot conforming (either buy land or sell it and realize value – however, owner is not req’d to pay an unreasonable price for additional price.  Not doing something to property to make it fall outside the ord.  Negative duty – can’t subvert the purpose behind the ordinance.  Ct: give an ordinance to P or pay him b/c you have taken all value from the property (Lucas)


				
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