PROPERTY

January 12, 2009

I. Property - bundle of rights1. Something tangible or intangible and enforceable against 3rd parties

a. Ex. right to sell, right to possess, right to exclude othersb. Rights can be owned by one person or by several

i. Co-owned1. Ex. husband and wife2. Ex. LL and TN

ii. Someone owns land but sell of timber rights, mineral rights, citrus rights

c. Can divvy up property rights over timei. Ex. divide up the right to possession and give right of present

possession to someone else1. LL and TN; TN has possession while LL has ownership

and right to future possession2. Could also sell off portions of land

a. Ex. sell 2 acres of 5, keep the other 3

I. Real Property – land and the things attached thereto such as buildings, structures, and natural vegetation

a. Drove the formation of property law; law developed in a way to protect the transfer of real property

b. Rights can be divided II. Personal Property – defined by exclusion from real property

a. Source of most modern wealthb. Two types

i. Tangible ii. Intangible

1. Will have representations but cannot seea. Ex. the right to a debt – bonds, trademarks, copyrights,

patents, stocks, securitiesc. Rights can also be divided

III. Title is relative – depends on who is claiming and against who is claiminga. Someone could have superior title relative to one person and not relative to

anotheri. Ex. Prof has better claim to her pen than me, but if she borrowed it then

that person has the best claimIV. Possession – principle right in that bundle of rights

WILD ANIMALS

Pierson v. Post

Cause of action – trespass on the case injury to a P’s chattelo Critical issue?!? was the fox really P’s chattel; if it is not his fox then he

cannot sue upon the chattel The actual owner of the land is not present – example of relative title Occupancy is the same analysis as possession = main issue

o Does Post have sufficient occupancy in order to win a case on the fox Case of first impression in NY – no case law or statute in NY that will help determine

outcome The English cases aren’t helpful because the LO was involved or there was a statute

o So court turned to ancient writers Justinian – need actual corporeal possession Puffendorf – needed corporeal possession but if mortally wounded and

the hunter has not abandoned pursuit then hunter has occupancy What does mortally wounding mean? Not abandoning pursuit?

Barbeyrac – mortally wounding and pursuit is enough, also could secure the animal and gain possession (hunter renders escape impossible)

Examples:o Shoot bambi in the head and dies right there within 2 ft of huntero Shoot bambi and he continues to run, hunter keep up but loose them a bito “Hunter law” – who ever knocks it down gets possession CUSTOMo Shoots in hind leg and bambi lives for 4 months

As long as continue to pursueo Shoots bambi and then he contracts lead poisoning

Since hunter instigated the thing that caused death then has possession as long as continues pursuit

o Took a day break of pursuit No possession

o Took small break Probably still in pursuit

Dissent says the authority to ask is the hunterso Law should if possible follow custom because will minimize number of lawsuits;

but then question of who’s custom and who’s interpretation of custom

RULE = only pursuit but no wound so looking under Barbeyrac for deprivation of natural liberty or rendering escape impossible

o Deprivation of libertyo Rendering escape impossibleo Pursuit – needed in each scenarioo Mortally wounding

Does not fit Puffendorf or Barbeyrac

POLICYo Majority – if allows mere pursuit then tons of litigation

If really interested in deterring litigation then would get rid of fuzzy language of “mortal wounding” and “pursuit”

o Minority – chivalry

Once captured the wild animal it is hunter’s but if it does escape then possession lost unless intent by wild animal to return

Page 148 #5o O operates a game farm, an elk escapes and H shoots ito O wants compensation for the elk from H

LO where elk shot not in suit H argument – elk regained natural liberty (wild animal) and was not

inclined to return; therefore, H could go after it O argument – elk will return to pack/family because game raised elk;

domestic animal not wild animal so common law does not apply; Policy – elks are an investment to O

January 13, 2009

FOUND PROPERTY

Relativity of title – who is claiming and does someone have a better claimo A person can have superior title relative to one person but to superior title

relative to another person

Benjamin v. Lindner Aviation 3 parties – not there = owner of money; Benjamin, Lindner Aviation, SCB

o Benjamin brought declaratory action in the lower courto Lindner Aviation – two claims owns the hangar and employer of Benjamin so

they are in fact the finderso SCB – own plane the money was found in; claiming location of the found

property Lower court said mislaid property – so out of statute 644 MP – goes to the owner of the locus location in which the found property was

discovered Lower court – misguided because said MP and then applied 644 so finder’s fee which

makes no sense at allo Benjamin still wants money – anything but MPo Lindner – still wants ownership and says they are employer of Benjamino SCB – still wants it all because they are the owner of the locus

Statute issue – could read it to be all types of found property or just LPo Lower court said the statute did not apply

o Paset : Benjamin argues the statute should be interpreted broadly; policy of returning to true owner and then reward finder for his honesty does not apply to Benjamin because he stole half and put it in his truck

o Zornes : narrowed statute to just lost, TT not governed by statuteo Ritz : narrowed statute o No interpretation to prove that statute should be interpreted broadly because all

the CL from the 1930’s narrowly interpret the statute

1. Found propertya. AP – goes to finder, true owner no longer trumps; voluntary relinquishment

of the property, looking for subjective intent through circumstantial evidenceb. LP – goes to finder save the true owner; someone unintentionally and

involuntarily parts with the property c. TT – goes to finder; property (usually coins, currency, antiquity) is hidden or

concealed for such a long time that the owner is probably dead or cannot be found

d. MP – owner of locus gets it; intentionally places property somewhere and is subsequently forgotten or overlooked

Who’s claim is superior issue – relativity of title analysiso Categorize the found property to see who has the superior claim

Who is the finder? – Benjamin or Lindner Aviationo Did not need to deal with because owner of locus is SCBo If had to address it then Benjamin would probably have lost

Who is the owner of the locus? – Lindner or SCBo Since MP then goes to the owner of the locus

Must look at the place and location where the property was found to establish the categorization of found property

Not AP because no one would leave that amount of money Not TT because no aspect of antiquity Not LP because doesn’t seem to be unintentionally parted with because of the large sum

of money and the placement

Hypo: leave something on counter to pay billo Looks MP because prof. put it there on purpose and overlooked it

Hypo: leave something on counter to pay bill and then someone else with tons of packages and knocks prof. left package on the ground; another person comes and kicks the package into the corner; several days pass and someone finds it

o Looks LP now

RULE: categorization of property can change from the intention of the owner

Hypo: put coat down and something fell out of pocketo LP

Hypo: someone comes along and picks up the thing that fell out of pocket and puts it on counter; someone else comes along and finds the thing on the counter

o Now MP because just by it being set on the counter it looks like someone left it there purposely even though it was not because those are the only facts in front of the court when the true owner is not the property

1. Many states have found property issues just as Iowaa. Legislation has not changed over the years and the language is fuzzy as to

whether it should be interpreted strictly or narrowly2. POLICY in relation to found property

a. Return item to true owneri. Leave the property with the location because that is where the true

owner would go to look b. Preventing trespass

i. So that finder’s do not go looking in places they have no right to enterc. Rewarding luckd. Rewarding honesty

Favorite v. Miller Favorite – owner of locus/P/appellee Miller – finder/D/appellant Appeals court agrees with the judgment and not the analysis

o MP but not because of the subjective intent of men 200 years ago and since from that long ago it is too much conjecture; they do not want to apply the categories of found property at all

o MP because Miller knew he was trespassing in the first place POLICY issue Trespass may be allowed in selfless pursuit of science but this was clearly

not so because of advertising and profits Additionally, the imbedded aspect goes to the owner of the locus

1. Found propertya. Look at statute and see how it has previously been interpretedb. If not governed by statute then fall back on CL

i. 4 typesc. Between owner of locus and finder then who gets it?d. Overriding issues - POLICY

i. Trespassers courts will not favor trespassingii. Employer/employee Lindner Aviation

iii. Embedded property even without trespass will often go to owner of locus on theory that owners are entitled to things deep in their property

iv. Public v. Private the more public the place = finder; the more private = owner of locus

January 15, 2009

BAILMENTS

1. RULE: Transfer possession of goods to another with the understanding express or implied that the goods will be returned to the person that made the transfer

a. BR transfers to BE (“ees” are the ones who have possession)b. Possession transfers but not legal titlec. Ex. taking clothes to drycleaner, storage facilityd. Elements:

i. Intent 1. BR intended to create the relationship either expressly or by

implicationii. Delivery

1. BR delivers physical control of the propertyiii. Acceptance

1. BE intended to possess or control the object (accepts)e. Can be expressed or implied

i. Express – k to store property in storage facility1. Parties agree to the terms

ii. Implied in fact – throw keys to buddy to borrow cariii. Implied in law – law turns agreement into a bailment

1. Someone deemed to be holding property for someone else2. Finder/true owner relationship because true owner’s title is

stronger relative to the finderf. Types: figure out by who is benefiting from relationship

i. Bailment for sole benefit of BE1. Hypo: go outside, car not working and ask to borrow my car

a. Prof = BE, me = BR; only BE benefiting2. BE liable for even slight negligence

ii. Bailment for sole benefit of BR1. Hypo: leaving for summer and need place to store books, ask

professor to store books in her garagea. Prof = BE; me = BR; BR getting all benefit because

only thing prof gets is a garage full of junk2. BE only liable if grossly negligent

a. Hypo: left garage door open during hurricaneiii. Bailment for benefit of both

1. Aka bailment for hirea. Ex. dry cleaner, furniture store – patronage for payment

2. BE liable for ordinary negligenceiv. Type of bailment defines the liability of the BE

g. Distinguished from Trusteei. Transfer of legal title and possessions to TE

h. Distinguished from a sale

i. Transfer of legal title and possession to buyer

Allen v. Hyatt of Nashville

No Bailment BailmentValet parking

Rhodes Scruggs Dispeker

Back of ticket states that owner of garage is not liable for damageso Does not get rid of liability because k of adhesion and no evidence Allen read the

back of the ticket Mutual bailment so has standard ordinary duty of reasonable care and through ticket

trying to get out of needed to exercise that duty Bailment presumes negligence res ipsa

o Often no evidence so whole case turns on who gets the presumption and then puts the burden on BE to show no negligence and if cannot then out of luck

o Statute gives presumption, if no statute then CL gives presumption Dispeker – BR kept keys, in valet parking, car could be started without key bailment Scruggs – closed, attended parking lot, keep keys but again valeted bailment Rhodes – no barriers, gates, not attended, only meters no bailment Allen – closest to Scruggs NJ court uses policy argument that BE has all evidence so they should bear the burden

o Same result the finding of elements reaches because analyzing who should get the rebuttable proof of negligence

o BR benefits from presumption of negligence on the BE then burden shifts from P to K and BE must introduce evidence to rebut it

Buena Vista Bank v. Bickerstaff Bank wants SJ but in order to get that they must show no genuine issue of material fact

o Problem – cannot show proper diligence without showing facts of the case so SJ denied

Mutual bailment; it is intended, there is delivery of $$ and BE acceptedo Since bailment then BE gets benefit of presumption…become factual

question therefore no SJ can be given

Shamrock Hilton v. Caranas Hilton misdelivered purse

SL for misdelivery but only in express bailment Important to be deemed a bailment for burden of going forward with evidence

Forces BE to introduce evidence that he was not negligent Constructive bailment, implied in law bailment

Intent – if BR realized purse gone then she would have expected hotel to keep it Delivery – constructive

Acceptance – mutual benefit, intent to accept by maintaining patronage ONCE BAILMENT FOUND THEN GET THE BENEFIT OF PRESUMPTION Additional element of reasonable foreseeability of jewels inside purse

Need this analysis when something contained within the bailed item Would BE be liable for only the purse but what about the contents? Normally liable for ordinary contents but these are exceptional – 13K

worth of jewelry Ct says in this circumstance the goods of this nature are

foreseeable given the place, hotel and time period Use reasonable foreseeability in dealing with contents of bailed item

Look at surrounding circumstances; normally liable for ordinary contents but in this case the extraordinary jewels were not timely objected so presumed reasonably foreseeable because not objected

Container case Hypo: fox scarf left in sleeve of coat that was given to coat check; fox lost

Court said not reasonably foreseeable but would have been if in the pocket; maybe reasonably foreseeable if winter season

As long as not container case then no reasonably foreseeable test

January 20, 2009 Review

o At CL – mere pursuit is not good enough for relativity of title to go to pursuero If animal regains natural liberty it is fair gameo MP – goes to owner of locus

True owner trumps Trespass relinquishes title

Embeddedo Pkg on a chair – probably MPo Only in express bailment is BE SL

GIFTS

1. Gifts and sale are the two most common ways of transferring propertya. Gift – voluntary transfer of possession by one to another without

considerationi. Donor transfers to a donee

ii. Only question that arises is whether the elements are met, the elements are not questioned

iii. Elements: (NEED ALL 3 conjunctive test)1. Intent – present donative intent; can intend to give a present

transfer of a gift of something possessory in the futurea. Intent to transfer when dead does not count

b. Present intent critical, look at words of donor at time of delivery; may look at surrounding circumstances to see what the words meant

i. Hypo: I want you to have everything I own1. Probably not present donative intent because

that person will need some of it while alive; probably meant when he dies he will give everything

c. Ex. Gruen v. Gruen2. Delivery – such to divest the donor of dominion and control

a. Physical delivery = BESTb. Constructive delivery – means for obtaining access

i. Ex. keys, financial notec. Symbolic delivery

i. Ex. representation of the items – letter, pictured. Evidentiary function and cautionary element

i. Cautions the donor of the consequences of his actions

1. “talk is cheap”2. Delivery is more than just talk

e. Sometimes the court will only allow physical delivery; depends on circumstances

f. Sometimes have delivery to 3rd party, as long as 3rd party acting agent of donee then probably have sufficient delivery, if acting as agent of donor that probably do not have sufficient delivery

3. Acceptance – donee must accepta. If the gift is of value then acceptance is presumed

i. If no evidence of acceptance then donee benefits from presumption

iv. Types made during the donor’s lifetime (if attempt to make a gift at death then invalid unless it meets the requirements of a will)

1. Inter vivos – irrevocable a. Hypo: bf gives watch to gf and breaks up the next day

i. Too bad because present intent at time of deliveryii. Issue: what was the intent at the time of delivery

2. Causa mortis – revocable; made because donor worried about death

a. Donors express revocationb. Donor’s recovery from peril or illnessc. Death of donee prior to donor’s death

Irvin v. Jones Element of delivery – not valid delivery

o Hudson – on point precedent pg. 178

Gruen v. Gruen – gift of a future interest in chattel Father wrote two letters giving gift of painting to son on son’s birthday

o Dad wanted had life estate of it and gave gift; wanted it not to be included in estate at death in order to avoid estate taxes

o Dad retained for himself the right to possession Donor made a gift of remainder but keeps right to posses the painting

during his lifetime Dad gives everything but possession until death = life estate What if donor changes his mind?

o Can only give right to possess during his own lifetime because he has nothing else to give

o Future interest – gave away right to possession after deatho Step-mom – no intent because no gift tax return

Court said bad legal advice does not negate the making of the gifto Delivery not actual (constructive) but was symbolic in letters; not constructive

because not means to obtain gift Hypo: son at dad’s house for birthday party; dad, in front of every guest, says to son he is

giving painting.o Not a valid gift because no delivery

Intent – yes, and guests can corroborate Delivery – no and intent alone is not enough Acceptance – since gift has value then presumed

Remainder interest – not really capable of actual delivery; refers to someone with a future interest in an asset. It may be a future interest in the estate created by a trust, a contingent interest when a life tenant surrenders a claim to the estate, or a vested interest that becomes effective at a specified future date. It is often created when a grantor leaves property to pass to a family member upon the grantor's death.

Braun v. Brown – causa mortis gift Language is critical at the time of transfer of safe deposit key intent based on language

of “Braun, I give this to you” Delivery – constructive because key was the sole delivery of safe deposit box at the time

and the other key was locked inside the box itself Acceptance – D argued that because she didn’t go into the box before his death was proof

of her not accepting; presumption and policy argument (do not want people to leave dying person’s bedside to go access box so gift is valid, valid due to presumption) give her acceptance

January 22, 2009

ADVERSE POSSESSION

Way to acquire property without intent, delivery and acceptanceo Get land despite what true owner’s intent

Distinguish adverse possession and adverse useo Adverse use – prescriptive easement

Claimant could obtain an easement Basically a right-of-way; right to continue use Use instead of possession and no need for exclusivity

o Adverse possession Claimant could obtain title to land

1. Adverse Possessiona. Elements

i. Possession of propertyii. Claim of right

1. Not met if by permission in this jurisdiction2. If have permission then can never win adverse possession

a. Permission breaks continuous iii. Open and notorious

1. So all the world can knowiv. Continuous

1. Not interruptedv. Must last for required time in jurisdiction

1. SOL or CLvi. Adverse/hostile to the interest of the owner

1. In this jurisdiction the courts says “don’t need good faith”; claimant had treated it as his own

vii. Possession must be exclusive of othersb. Acre Cop – anagram to remember

2. Policy arguments – pg 499a. Highest and best use of the land

i. Make sure land gets developed by societyii. Environmentalists argue not all land needs to be developed

b. Encourages rejection of stale claimsi. Owners need to bring complaint immediately instead of letting time pass

and then bring it up; do something about trespassersii. Bring actions sooner rather than later

c. Stop someone else from adverse possessioni. Inspect property

ii. Survey and fence it iniii. Encourage owners to be vigil in regard to their land

3. Adverse possessiona. Ejection action – owner finds out someone on land and wants to eject him, or b. Trespass action, orc. Quiet title action

i. All have D asserting affirmative defense of adverse possessiond. Sometimes adverse possessor brings claim because now wants title

Typically get property by sale, gift or death (dying intestate or by will)o Not by adverse possession

Adverse possessor does not show up in the title records Therefore, need to inspect as well before buying

Chaplin v. Sanders – adverse possession Sanders = claimant/east; Chaplin = record title holder/west SOL – gives time requirement to obtain AP = 10 years

o Statutes vary from jurisdiction to jurisdiction Courts sometimes blend claim of right and hostility

o Cannot have permission because will not be adverse and will not meet claim of right

Some jurisdiction require: objective, good faith belief that the land was your own not someone else’s land

o 3 different views: Majority = irrelevant because policy arguments reign as opposed to state

of mind of the claimant Minority = have to show good faith

Even if jurisdiction does not care, if bringing bad deed then may need good faith

Aggressive trespasser = mistake is not enough Open and notorious – if owner inspected then he would have realized that someone

was on his property o From facts a reasonable person should have knowno In this case, if owner actually knew then met open and notorious

Exclusive: if anyone else including the true owner is in possession then the element is not met

o Distinguish from right-of-way because land can be used by both claimant and true owner

Claim of right v. Color of titleo Right against the world without permission v. claim for adverse possession based

on defective instrument (deed)o If does not say color of title then falls back onto claim of right; court does not

distinguish and just says adverse possession claim of right Difference between the two

o In color of title = need to produce defective instrumento If can win under color of title then title extends to the land described in the

defective instrument Could actually be more than he is possessing If document was smaller then make color of title for piece in

document and then make a claim of right for all other partso In claim of right

Claimant gets what he was actually possessing

o In some jurisdictions by statute (FL) may require claimant to have paid property taxes

FL claim of right statute 7 years, must pay property taxes

o How do you pay for taxes for property you do not own? Tax collectors do not care Usually not paying double because true owner is

not payingo FL color of title statute

7 years, have to record the defective instrument to give notice to all Requirement of mental element, cannot have bad faith

Hypo: A received a defective deed to 10 acre lot, moves into lot and builds house on front half of lot, occupies for SOL period and does not develop forest in the back; meets all requirements and good faith that he had a valid deed

o In FL – need A to record ito CL color of title – can get all of the lot as described in defective deed if wins

claim Color of title allows constructive possession of land as described in

defective instrumento If claim of right case – max A could have gotten was front park because it was

open and notoriously possessed

January 26, 2009

Carpenter v. Huffman1. Tacking – when one adverse possessor gets credit for a possessor’s previous time

a. Combining periods of time with claimant and prior possessor so that time period fulfills the SOL for that state

b. When tacking permittedi. Need a transfer

1. Conveyance2. Sale3. Gift4. Death

c. No tacking allowed after an ouster (new owner forced old one out) or after abandonment

d. Need privityi. Consensual transfer (seller/buyer or donor/donee)

ii. Legally formed relationship (decedent/heir)iii. Nonconsensual won’t work

1. Ex. ouster a. Policy argument to discourage behavior of forcing people

out so courts don’t allow tacking2. Ex. abandonment

e. ***Transfer does not have to be formali. Hypo: guy comes along and allows someone else to buy his land for 10K

without transfer of deed1. Tacking allowed because transfer; do not need formal conveyance

ii. It can be formal but it does not have to in order to satisfy the ability to tack

iii. Prof. like to trick using question of informal deed

Hypo: SOL = 20 yr for adverse possession; record title owner = O, O purchased but never moved onto property; 1985 A enters property adversely and states to possess; 1995 B forces A out and B stays

o 2009 O decides to see his land and notices B is there and wants to get rid of him, files an action for ejectment, B claims adverse possession

O wins because B ousted A and did not meet elements B would meet required time in 2015

Sister able to claim brother (previous owner) time onto herso Allowed because consensual transfer by conveyance of deedo But even if not formal, could be oral

Change in possessor = works for tacking Note 2 pg. 505 Change in record owner Note 2 pg. 505

o Policy argument – minimizing stale claims, encouraging owners to check on property

o Normally once adverse possession begins, a change in record owner is irrelevant; new purchaser should inspect before buying

Exception: if at the time of entry the land is subject of future interest holders, then adverse possession time only runs against present holders

Entry of land – time adverse possessor enters land Ex. Life estate to wife of land, remainder to kids

o Wife has right to possess property for lifetimeo Kids has right to possess as soon as life estate holder dies

Kids could do actuarial analysis to sell property depending on age of wife

Kids have interest and could sello Hypo: wife and kids not living on estate; adverse possessor

comes onto property fulfilling all elements of adverse possession

Ordinarily adverse possessor would win title but because when he entered land there was a future interest, he only holds adverse possession against wife; kids (future interest holders) could not stop him, only the wife (present holder) could go to court to get adverse possessor out

o Hypo: A made the required time in above

A would be entitled to possession for wife’s lifeo Hypo: O on record of Blackacre; A steps in year 1

adversely possessing; 5 years later, O gets in trouble and sells Blackacre, he sells to X with perfectly executed deed; X does nothing, never inspects; A continues to live there for SOL

A wins against X even though there was a change in record owner

All prospective record owners should inspect

Tolling, Note 3 pg. 505o Only disabilities set forth in state statute will work to extend SOL

Minors while in minority, incarcerated person while locked up, mentally ill

Tolling only for period of time that owner cannot act Ex. minor until he is 18 years old

Tolling statute read narrowly Policy argument of owner not being able to do anything so cannot

hold it against them

Jarvis v. Gillespie – bad statute with country man using property If land owned by the state, municipality, government, for public use, etc. no one can

own by adverse possessiono VSA statute – said state or public use; land was not held by state but by local

government so only part left is public use; land was not held for public use or public benefit

o Statute could have worked to block adverse possession but it was not well written

1. Run through adverse possession elements:a. Sufficient possession – when can get possession short of living there

under the circumstances i. View claimant’s possession in light of the nature of the land

1. Some independent acts may not alone be sufficient but the acts together will constitute using the land; did not move in but tapped sap, grazed, cut trees, fenced in, put up signs, etc.

b. Claim of right – possessor claims without the owner’s permissioni. Conceded point

c. Open and notorious – ordinary person on notice? i. Could be seen from road, no trespassing signs

d. Continuous – need to look at totality of facts; continuous possession does not mean present at site at all times but is instead dependent upon the nature and condition of the premises

i. P not there continually but there enough in regard to nature of the lande. Required time – meet SOL

i. met

f. Adverse (hostility) -- possessor intends to claim land as his own, state of mind irrelevant in this jurisdiction

i. metg. Exclusive – only one using and possessing the property

i. Met

Pg 511 Noteso Note 1 – all activites enough for APo Note 2 – can stop before required time by interrupting one of the elements

Lots of things owner can do, but needs to know it is happening; can only know that through inspection

Marengo Cave v. Ross Not open and notorious because underground

o Open and notorious is not proof that the owner knew Knew or reasonably should have known through due diligence

January 27, 2009CONCURRENT INTERESTS

Hypo: O begins owning blackacre, fee simple absolute and transfers it by deed “to A for life, then to B for life, then to C.”

o A has present possession, B gets when he dies and C gets it when B dies At the moment of delivery = all 3 have valuable property interest they just

don’t have possession at the same time They all hold consecutively over time

Hypo: same but O conveys by valid deed “to A, B, and C as tenants in common in fee simple absolute.”

o Interest not consecutive but now concurrent o Ex. Mom conveys to her three sons

1. Concurrent Interesta. Can be present interest – hypo above

i. Ex. O conveys to A and B so long as the property is used as a residence1. Concurrent present interests

b. Can be future interesti. Ex. O conveys to A for life, then to B and C as joint tenants

1. A has concurrent present interest, B and C are concurrent future interest

2. Tenancy in Common (TIC)a. Only need one unity – Possession

i. Can have all, can have 3, can have 4 BUT ONLY need possessionb. No right of survivorship

i. One cotenant at his death can leave property to his successors in interest (beneficiaries)

3. Joint Tenancy (JT)a. Need time, title, interest and possessionb. Has right of survivorship

4. Tenancy by the Entirety (JBE)a. Need at 5 unities; if in addition to all other unities the grantees are married b. Has right of survivorship

5. Five Unities – TTIPPa. Time

i. Tenants take their interest at the same moment in timeb. Title

i. Tenants take title from the same instrument (document)c. Interest

i. All tenants have an identical share (same percentage of property)d. Possession

i. Each tenant has possession of the whole (can go from basement to attic; has right o possess the entire thing)

ii. No cotenant can exclude another cotenant from any portion of the propertye. Person

i. Husband and wife form one person (only found when there is marriage)

Hypo: O transfer to A and B as tenants in commono A and B have a present possessory interest in fee simple absolute and does not

include right of survivorship Hypo: what happens if A dies?

o A successors in interest get A’s interest Hypo: O owns Blackacre and has title to old family estate but had no kids; O wants to

leave it to surviving nephews, A and B; O wants estate to stay in family as much as it cano JT furthers O’s interest because when one nephew dies the other gets it

Hypo: O to A and B as joint tenants with right of survivorship, not as tenants in commono JT = good way to rebut presumption of TICo So now A and B have present possessory interest in fee simple absolute with

rights of survirorship What happens if A dies?

o Goes to B with him now having full title Hypo: if A leaves to heir?

o Only keeps JT if during lifetime nothing done to ruin ito If left to heir then JT severed and becomes TIC

Hypo: O to A, B and C as JT with rights of survivorship and not as TICo After conveyance all 3 own present possessory interest as JT with right of

survivorship What happens if A dies?

o Interest goes to B and C as JT What happens if B dies?

o C owns all of blackacre, now no longer concurrent because everyone else died so C owns it with fee simple absolute

Hypo: O to H and W as TBE

o H and W have present possessory fee simple absolute interest (pp FSA) as TBE with right of survivorship

If H dies?o W owns it; non-probate transfer, often referred to as “poor man’s will” because

it was automatic, would still need to fix the title to say her name

1. Modern presumption: when conveyance to 2+ persons there is a presumption that there is a TIC unless evidence brought to show JT

a. If want JT then needs to be VERY CLEAR, need to rebut presumptionb. “to A and B as JT with right of survivorship and not as TIC”

i. FL Stat § 689.152. Convey – during lifetime; can be sale or gift3. Divide – only takes effect at death; will takes effect

Hypo: A, B and C each owned individual 1/3 FSA interest in a parcel of land as TIC. A died and by will left her interest in the land to X and Y equally. Who owns, what?

o X and Y own 1/6, B and C owns 1/3o A able to transfer by will because TIC

Hypo: A, B and C owned FSA land as JT; A died and by will devised all A’s realty to X and Y equally; who owns what interest in the land at this point

o A fell out of owning group so has no interest after death; not a conveyance so only B and C own land

o If conveyed then becomes TIC with X,Y,B and C B then died without a will

o C owns all land, no longer concurrent estate B only heir is Z

o Too bad because right of survivorship Hypo: A owned land of FSA, A conveyed to A and B as JT with the right of survivorship;

A died leaving all A’s realty to X by will; who owns what?o A already had an interest in land through a different instrument so time and title

not met; need TTIP unitieso Way to fix it: A and B TIC

A’s interest in TIC can be divised so X has claim B and X own as TIC

o If all really wanted to create JT then would give land to straw man – A would transfer entire deed to trusted 3rd party and then that party would transfer to A and B as JTs

Reason jurisdictions have not gotten rid of straw man is because need transfer fee to make it happen $$$$

Could also serve cautionary function, make sure people all doing exactly what they wantsaes

Hypo: A,B and C owned land is FSA as JTs; A conveyed A’s interest in the land to X; who owns?

o A’s portion severed and given to X who is a TIC; X, B and C all own 1/3, B and C are JTs in regard to each other

When B dies?

o Goes to C = 2/3o C now only member of JT; becomes TIC with X

C dies?o C’s successors in interest get C’s part 2/3

If X dies first?o X’s successors in interest get X’s part 1/3

Problem 1 on page 244: O conveyed to A and B as TBE but they are not married not real TBE

o Some states would deem as JT, others would apply presumption of vague deed is TIC

What if they later marry?o Not a TBE because need to be married at time of granting

Heirs do not have a property interest until death, only have expectancy until then

January 29, 2009

In Re Estate of Michael Joyce King – grantor; Harry and Bertha as TBE and Ford and Helen TBE with right of

survivorship – grantees Land was transferred by deed to those four but Bertha’s will gave the land to Robert

o If Helen a TIC at death then it was divisible; if it was a JT or TBE then the right of survivorship trumps

Once Harry died, his interest went to Bertha because it was a TBE = not divisible o Bertha began with ¼ interest and now has ½ o Ford and Helen own other half together ½

Whether or not Robert can get the farm depends on whether the couple and Bertha own as TIC or JT?

o Bertha’s share could go to Robert if it is a TICo Bertha’s share would go to Ford and Helen if JT

Unclear language because although said “right of survivorship” the rubric was “JT with a right of survivorship” make it look like TIC since that is the presumption under Act 1812 so Robert gets the farm

o Even if “right of survivorship” was enough, it was still capable of 3 separate interpretations and since nothing CLEAR could be found within the four corners of the document it was TIC

Therefore, Bertha can devise property and give to Roberto Robert has ½o Ford and Helen have ½

Draft: JT with right of survivorship, and not as TIC

Hypo: what if grantee H & W are married but the language in the conveyance says only to “A and B, husband and wife.”

o if married then presumed TBE in FL, other states fall back on general presumption of TIC since the document is ambiguous

o by contrast if married so had a TBE and divorce attorneys did not handle the real property explicitly FL = TIC, other states give JT because that is the closest to the original grantor’s intention

1. TIC right to devise/inherita. During lifetime can convey and deviseb. Only way to stop someone from giving land away is by contract, property

law will not allow it2. TBE and JT no interest in death

a. JT: during lifetime can convey and at same time severed JT interest to TIC; only that percentage is severed

i. But cannot devise/transfer at deathb. TBE: one spouse cannot convey without the other and cannot devise/transfer

at death without the otheri. TBE does not go through probate

3. Chart it out

Hypo: TBE, H dieso W gets all property and then no longer TBE, it becomes FSAo If they die together then all states have presumptions of who dies first

Sawada v. Endo H & W in TBE

o Both conveyed the land to sons as a gift Still lived there

o W dies Before W dies there is a judgment entered against H for accident H says I don’t have the land, the sons have the land HI had TBE but this is a case of first impression in regard to creditors against TBE

1. What a creditor can reach from a debtora. Can get anything that a debtor alone can voluntarily alienateb. Creditor steps into the shoes of the debtor; whatever the debtor can do with

the property so can the creditorc. Once creditors in horizon and know of the creditor (can be before lawsuit as

long as know) a gratuitous transfer is generally fraudulentd. Possible creditor ~ maybe; probable creditor = for sure

i. Must do asset protection planning before a potential creditor arisese. Creditor of JT or TIC

i. Creditor can reach anything that a debtor alone can voluntarily alienate; JT and TIC can be reached proportionate to interest

Issue: was conveyance fraudulent?

o Only way creditor process cannot win is if TBE cannot be reached In TBE if creditors cannot reach one spouse then transfer irrelevant TBE property protected

o TBE would protect H but when wife died, if not transferred, it would be reachable because it would no longer be a TBE; but because transferred to sons, H secured his assets

Pg. 2501. Group 1

a. Married Women’s Property Acts – married woman has the same rights of single woman

2. Group 2a. Both H and W can alienate but subject to right of survivorship of the other

i. Creditor can get to non-debtor spouse; in that case non-debtor can oust the creditor because he has the right to possess because steps into shoes of debtor

3. Group 3a. Attempted conveyance by either spouse b. Majorityc. This jurisdiction joins this group

4. Group 4a. Opposite of others, only thing the creditor of one could get is the right of

survivorshipb. During lifetime of debtor’s spouse creditor cannot get compensatedc. If non-debtor dies first then creditor gets it all

Policy – TBE protects the family as seen in Fairclaw v. Forrest pg. 253 Hurd v. Hughes – recognizes possible fraud; if debt arose before property turned

into TBE then creditor leant based on what already owned so not counting on TBE property as payment; if extend credit after TBE then creditor on notice that TBE property cannot be used to secure debt

o All applies to voluntary creditors not involuntary Sawadas were not voluntary creditors so could not know

o Ex. Involuntary creditors – child support TBE property not reached by creditor of one, but can be reached by creditor of both

February 2, 2009

RIGHTS OF COTENANTS1. Rights and obligations of cotenants

a. In regard to income:1. Absent an ouster, a cotenant in sole possession is NOT LIABLE to

his non-occupying cotenants for the value he derives from possession of the whole (from basement to attic)

2. One in possession does not owe the others not living there anything as long as he did not oust them

a. Stems from fact that every cotenant has unity of possessionb. Hypo: Carl and Lenny own equally a farm as TIC (1/2 each);

Carl voluntarily moves out, Lenny now in sole possessioni. Lenny does not have to pay Carl any income he derives

from cattle, veggies, etc. ii. Rental income from 3rd party

1. If a cotenant obtains rental income from a 3rd party, each cotenant is entitled to his share

a. 1709 Statute of Anne – accountable for “rental payments or other tangible receipts from a 3rd party’ Note 1 pg. 258

iii. Tenant in possession after ouster1. Non-occupying tenant was ousted, in that case the tenant in

possession must account a. Hypo: Carl was ousted by Lenny, same farm as above; Lenny

sole possessor and getting $1,000/mo from farm proceeds i. Carl and Lenny each get $500

2. Expenses among cotenantsa. 2 types

i. Upkeep expenses: all cotenant responsible for upkeep expenses such as real property taxes and mortgage payments

1. Cotenant paying more than fractional share of upkeep expenses can go to court and bring an action or contribution for those expenses

a. Hypo: property left to sisters by parents as JTs; one sister lives in house and the other lives in other states

i. The one who lives in house does not have to pay for non-possession to others

b. Hypo: now taxes and insurance start getting up and bills getting higher; one in possession asks others for money for those bills

i. The possessing sister can bring an action for upkeep contribution from the non-possessors

1. Can change by contract because property law gives possessor right to contribution

2. When one cotenant pays more upkeep then the others there is a presumption that the one paying the extra money is giving a gift to the others (in most jurisdictions); at time paying extra make it clear this is not a gift to be able to rebut the presumption

a. Intent at the time matters; not subsequent intentii. Capital improvements: ex. Pool, new wing, carport, etc.; cotenant not

responsible for non-authorized capital improvements1. Contributions actions do not work here

a. Hypo: one cotenant used own money to make an improvement on the property; cannot bring an action of contribution

i. Can get money in partition action brought when parties can no longer work with cotenants together, need to separate our interests (partition concurrent estate)

2. Partition – 2 ways (ends the cotenancy)a. Physical (in kind): works when the property is physically

divisible in a way that would be equitablei. Compensate a cotenant that made an improvement

by giving the party that made the improvement the land with that improvement on it

1. Ex. Cotenant built a house on one parta. That cotenant should get that improved

property in physical partition actionii. Ex. Land that is the same without

iii. Ex. Property where on part has a house or one part is adjacent to the ocean – cannot be divided up fairly

b. Partition by salei. Resolution to problem dividing physically

ii. Sell the property and divvy up the moneyiii. If issue of capital improvement the courts try to

compensate that cotenant that made the improvement by giving the improver his fractional share and also the addition of the proceeds attributable to the improvements

Graham v. Inlow D made capital improvements P was able to obtain rental income after she was ousted Property needed partition by sale because it was not the type of property that could be

divided evenly Formula = improving cotenant gets fractional amount plus…difference between

value of property as a whole with improvements and value of property as a whole without the improvements

Coggan v. Coggan Partition by sale so ex-W should get half of sale; she also wants half of rental value

for time from divorce to suito Only available if ousted by ex-H

Ousting is a question of fact to be seen by fact finder Graham deferred issue to trial court and Coggan the Sup. Ct.

reversed and decided for themselves Adverse possession: only way a cotenant in possession can claim all of interest is if

he can prove that he is in exclusive possession; can only get there if prove the others were ousted; possessing adversely to the other cotenants

o If with permission then not adverse possessiono Solution: ex-W try to move into office building to prove actual ousting; need

evidence that tried to enter and denied possession Normally changing the locks will work to prove ousting

o Trying to get time period to trigger when ousted person owed rental income

Porter v. Porter H & W that held a JTs abnormal because normally will hold at TBE

o Then divorced without JT being severed Since owned as JTs up to death then right of survivorship kicks in and Mary Jane

get it What is the effect of divorce on a JT?

o Does not severe JT so property goes to 1st wife

Note 2 pg. 264 – parties owned property as TBE, then divorced?o Look at what grantor intended in the language of the deed

Minority – cannot do exactly what grantor intended because parties divorced so closest to TBE is JT

Majority – becomes TIC (FL included) in order to pass onto children; now divorced parties would prefer that at death their share would go to intended beneficiaries as opposed to ex-spouse

If parties agree to turn it into JT then need CLEAR language but either spouse can still sever by conveyance

o Cannot convey without permission by other spouse in TBE

February 3, 2009 TBE and JT cannot devise/transfer at death

o TIC can JT and TIC can convey during lifetime

o TBE cannot without the others permission

SEVERANCE

Taylor v. Canterbury P transfers JT to TIC by himself through a strawman – is that allowed?

o P intended to sever and it was recorded Original JT with Canterbury did not have all four unities because Taylor owned before;

therefore, time and title were lackingo BUT this jurisdiction has a statute governing JT creation, not severance; gets rids

of requirement of strawman in order to create JTo Unilateral severance issue?

Under strict unities TT cannot convey to himself

TEST INTENTo Look to see if terminating or severing

If really want to be done with concurrent ownership partition suit (2 types); convey

If want to sever but keep interests 3rd party transfer (strawman, destroys unity of time and title)

o TT conveyed to himself (no strawman) and recorded it in recorder of deeds office

Now public record Colorado agreed that one can unilaterally sever property

Do not need a strawman to create so Colorado extends that reasoning to include terminating; can terminate unilaterally

P did not want to take away Canterbury’s ½ just wanted a TIC so his heirs could get his ½

Dissent thinks legislature should take care of issue and change the law instead of the court interpreted as they choose

Policy issue: possible fraud only a severance if it benefits the person severingo Secret severance – were in JT with another, execute deed conveying JT interest

into TIC unilaterallyo Wait to see who dies first and other JT has no idea of document

If secret man dies 1st then gets to devise interest, if other guy dies 1st then maintain JT

Protection RECORD DEED before hiding in little box Now not fraudulent, just sneaky

Mortgage by on JT cause a severance of a JT?o Mortgagee – lender/holds the mortgage/the security

Gets mortgage Wants some security to know you will pay off loan

Say ½ interest at JT of property Does transferring security interest sever JT?

o Mortgagor – borrower/gives the security Gets loan for mortgage

o 2 theories: Title theory state

Lender gets deed of trust; Lender owns legal title and borrower owns equitable title until note it paid

Creates severance Lien theory state (FL)

Legal title is held by borrower, on deed, during the duration of mortgage; mortgage lender has lien and only obtains legal title after foreclosing

Tenhet v. Boswell Can sever by conveyance

o By gift or by sale Does a lease sever JT?

o Uses mortgage lien application Sides with lien not severing favors lien theory Lease falls within this rule

o Lease only temporarily severs during the time of the lease but does not create a permanent severance

Hypo: A and B owned at JTs; A kills Bo Many states view murder as severance, states have slayer statutes that handle

issue

February 5, 2009

INTERESTS AND ESTATES IN LAND

Competing forceso Government needs moneyo Free alienability – society needs land in commerce so that it can be sold and

developed In return for land each TN:

o Serviceso Incidents

Relief – inheritance tax (still have now) Aids – ransoms Escheat – forfeit land if go to jail, or died without will and heirs (still have

now) Goes to state in FL

Wardship – TN dies and only heirs are minors then the LO could enjoy all profits of land during minority (until a major)

Marriage – feudal lord got paid for TN getting married Seisin – freehold estates were transferred by physical delivery of dirt

o The person who was seized with the land (owns it) was responsible for incidents Gets both the benefits and burden of the land

1. Freehold estates – had seisina. Fee simple (last indefinitely)

i. FSA1. Unconditional

ii. Defeasible fees1. Conditional 2. 2 types:

a. Fee simple determinable (FSD)i. While; until; so long as

ii. Terminates automatically if the condition attached is violated

iii. Ex. O owns blackacre and transfers “O to A and his heirs so long as blackacre is used as a farm.”

1. A will have blackacre as long as used as farm; if change to mall then ownership will terminate

2. O retained something short of everything, still has small interest for himself

a. O kept “possibility of reverter”b. O, the grantor, has a future

interest3. O’s successors in interest have possible of

reverter so if A violates condition then O’s heirs get land back

iv. Can have multiple conditions1. Ex. Property so no longer relapse into drug

use and have to use as farmb. Fee simple subject to a condition subsequent (FSSCS)

i. Provided that; on condition that; but ifii. Condition imposed by grantor but will not

terminate automatically1. Breach of condition the grantor must act

in order to get property back2. “Provided that” = language used

iii. Grantor kept for himself “right of re-entry”iv. Ex. O wants land to stay as a farm forever, but if

land changes surrounding then the successors could change land; O really does not want it to happen but if that circumstance arises then the person holding the right of re-entry gets to decide whether to take it back or not

b. Fee tailc. Life estate

2. Nonfreehold estates – basically leases; no seisina. Tenancy for a fixed termb. Periodic tenancyc. Tenancy at willd. Tenancy at sufferance – holdover

3. Transfer titlea. Intentb. Deliveryc. Acceptance d. To figure out what has been transferred ask yourself: what did the grantor

intend to conveyi. Use language to determine intent

1. Words of purchasea. Describe the grantee (purchaser)

2. Words of limitationa. Give dimension of the timeline

4. Analysisa. Words of purchase

i. Find purchasers/grantees1. O owns blackacre in FSA. O “to A for life”2. A = grantee; words of purchase “to A”

b. Classify interest of first purchaser in order in which appears in documenti. Present or future interest

1. If present move to next step2. If future – which type of future interest

ii. A has present possessory interestc. Words of limitation

i. Used to classify purchaser’s estate; tells dimension or time limitationii. A’s limitation “A for life” (life estate)

1. A has present possessory interest in a life estated. If more than one purchaser, repeat steps b-c for all other purchasers in order

they appear in the documente. Last solve for grantor (see if he has something left for himself)

i. O kept reversion – learn laterii. Grantor will have either the possibility of reverter or right of re-entry or

reversion5. Examples:

a. “and his heirs” intended as reference to last indefinitelyi. Meant as words of limitation not as words of purchase

ii. Pg. 216b. O “to A and his heirs”

i. Words of purchase – “to A”ii. Classify interest of purchaser – present possessory interest

iii. Words of limitation – “and his heirs”1. Means indefinite duration

iv. Conclusion: FSA because grantor kept nothing and A has indefinite duration

c. Pg. 216 Note 1; O conveys land “to A and her heirs.” A’s children prevent A from selling the land to gamble

i. Words of purchase “to A”ii. Interest – present possessory interest

iii. Words of limitation – “and his heirs”iv. A is the only purchaser so she can do whatever she wants; has FSA

1. Modern interpretation – “to A” = FSAd. O “to A for life, then to B and his heirs

i. Words of purchase “to A” and “to B”ii. A – present possessory interest

iii. A – “for life”1. A has a present possessory interest in a life estate

iv. B – future interest learn later

6. Estatesa. Fee simple

i. FSAii. FSD

iii. FSSCSb. Non-fee simple

i. Fee tail (FT)ii. Life estate (LE)

iii. Nonfreehold estates (leases)1. Estate for years2. Periodic tenancy3. Tenancy at will4. Tenancy at sufferance

c. Any other than FSA can be defeasible or subject to an executor interest

February 9, 2009

All estates other than FSA are defeasible or subject to an executory interest (limitation)

o Hypo: O “to A for as long as A doesn’t divorce” O retained something A’s life estate is defeasible

Holder of a future interest has a recognized property interest that is valuable nowo Holder of future interest does not have possessiono Interest exists now, just not possessory yeto Hypo: O leaves to 3rd husband and remainder to kids

Kids have future interest; if kids sell now then sell for less because use actuary tables

Words of limitation describe limits on time dimension (estate)o Ex. “for life” = life estateo Ex. “to A and his heirs” = FSAo Ex. “to A for 10 years” = leasehold, an estate for years/tenancy for a fixed termo Ex. “and his heirs” = FSA

Modern interpretation if no words are attached = FSA Hypo: O starts out with blackacre FSA; deed “Blackacre to A”

o Under modern interpretation A has present possessory interest in FSA

Devise – at death; ex. will Conveyance – during lifetime Defeasible – FSD or FSSCS

o Both can last for centurieso Defeasible means conditionalo Words distinguish each

Mahrenholz v. County School Board School District getting possibility of infinite ownership but obviously conditioned

o So, FSD or FSSCS Hutton’s conveyed future interest in School Grounds to Jacqmain’s and Jacqmain’s gave

their future interest to Mahrenholzo Problem: Possibility of reverter and right of re-entry are not alienable by gift

or by sale and not divisible so cannot give to someone in a will; only allowed by inheritance if die intestate then it will transfer by inheritance

Odd minority statute Alienable = capacity for a piece of property or a property right to be sold or otherwise

transferred from one party to another Divisible = divvied up in a will Inheritance = by death intestate the state will give via inheritance Once Harry, the son, gets the inheritance of all the property (not just the future interest)

he can convey the property because he has PPI in FSA When language ambiguous the tendency is to default to FSSCS because do not want

to take property away from people, want to make future interest holders take affirmative action

Note 6: FL limits duration of possibilities of reverter and rights of re-entry § 689.18o Limit to 21 years; but statute does not apply if FSD or FSSCS was granted to

government or non-profit (in those cases the conditions can last forever) If follows condition and more than 21 years then FSD becomes a FSA

subject to a covenant (will learn later)

Hypo: O owns blackacre in FSA and conveys FSAo GR retained nothing

O conveys FSDo GR retained possibility of reverter

O conveys FSSCSo GR retained right of re-entry (aka right of entry, power of limitation)

O conveys a life estate (LE)o GR retained reversion

Reversion: name for any future interest for GR that is not the possibility of reverter or right of re-entry

Interests: either PPI or FIo FI – can be held by GR or GE

Hypo: O “to A for life” Words of purchase – to A Interest – PPI Words of limitation – for life = life estate GR – retained reversion

Hypo: O “to A for life, then to B and his heirs” Words of purchase – to A and to B

Interest – A has PPI; B has FI Words of limitation – A for life = life estate; B “and his heirs”

because can now be indefinite GR retains nothing

Hypo: O “to A when A gets married” To A FI

FI:o GR can retain: POR, RRE or reversiono GE can have: remainder or executory interest

Remainder = future interest in someone other than the GR that will become PP estate, if ever, immediately upon the natural expiration of prior non-fee simple estates created simultaneously with this interest. (in same instrument)

EI = a future interest in someone other than the GR that is not a remainder.

February 10, 2009

FEE TAIL “O to A and the heirs of his body”

o Words of purchase: “to A”o Words of limitation: “and the heirs of his body”

A’s estate is PP FT in issue children, decedents succcessors in interest much broader Used to keep property within the family line but now outdated In US less than a handful of states allow a FT by CL; FT can be created but

tenant can divest the estate to disentail the FT, if tenant in tail does nothing then it remains a FT

o All other states have statutes: (no majority) Some states say “O to A and the heirs of his body” = FSA regardless

of what the GR intended Other states convert FT language into life estates for tenant in

tail, the remainder in FSA in issue If A has no issue then goes back to GR If O is dead then it goes back to O’s successors in interest FL falls into this category

Other states give FT to one generation, then remainder in FSA in issue

There is really not much difference between the last two, but really want FT to mean FSA under those statutes

Note 1 page 227 – O “to A for life.” B wants a secure lease for 10 years. o Words of purchase: “to A”

o Interest: A has PPo Words of limitation: “for life”

A has a PP interest in life estateo O retained reversiono B wants a secure contract for 10 years but since A could die (life estate ends

upon death) immediately then B needs to obtain lease from O and A Note 2 page 227 – O “to A for the life of B” A dies before B.

o Words of purchase: “to A”o Interest: A has PPo Words of limitation: “for the life of B”

Life estate measured by the life of another A has PP life estate pur autre vie (by someone else’s life)

o O retained reversiono B has nothing because he has no words of purchase

B is just a measuring lifeo The property at CL, A’s successors cannot get any interest and neither could

O because B had not died yet CL common occupant rule, anyone who got on the land could have

it until B died Now mostly outdate

Modern trend A’s successors in interest are allowed to stay on the property until B dies

o Cannot adversely possess because only AP from present interest holders, not future interest holders

Hypo: O “to A for the life of B.” In real life? O “to Caretaker for the life of the mother.”

o Good example of when would be a life estate pur autre vie, with O retaining a reversion

o Matters if Caretaker wants to sell because the difference in her having a life estate and selling it and her having a life estate PAV would drastically change the price

Hypo: O “to A for life.” A conveys his interest in blackacre to B. o Max estate B has is PP interest in life estate PAV (measured according to A’s life)

Waste – arises anytime someone is possessing and someone else has an interesto Can the person who is not in possession be compensated for the damages the

person in possession made to the property Can be life estate and TN

o Even if difference in property is arguably nicer a “material change” = waste regardless of whether enhancement or detriment

o Slight change to law “ameliorating waste” = life TN is not liable for changes when:

Changes because of surrounding circumstances, and Changes actually enhance (must be proven) the value of the

remainderman’s interest

Note 5 page 227: in regard to property the life tenant could not cut timber, viewed as waster, with an exceptions of thinning and if property was always used for commercial timber then that use could be continued

o To get around property law waste issue just draft the information into the lease

“life tenant is without impeachment for waste”

Problem 1 pg. 230 – O conveys “to A for life.” O dies one year later. o Words of purchase: to Ao Interest: A has PPo Words of limitation: for life

A has PP interest in life estateo O retains reversiono When he dies, his successors in interest gets reversion and A gets land for his

entire life Problem 2 pg. 230 – O conveys “to A and his heirs so long as the property is not used for

commercial purposes.”o Words of limitation: “and his heirs so long as”o A has a PP interest in a FSD with O retaining the possibility of reverter

Hypo – O conveys “to A and his heirs so long as the property is not used for commercial purposes, if it is ever so used then to B.

o A still has PP interest in FSD with O retaining possibility of revertero B has future interest (because A has PP) by EI with FSA

Because A has fee simple and non-fee simple is needed for remainder Hypo – “O to A for life, then to B and his heirs.”

o A to A; PP interest; for life so A has PP in a life estate o B to B; FI in remainder

B has FI and is not the GR because A has PP, B will get it immediately after A dies, A’s life estate is non-fee simple, and both were created in the same instrument

Natural expiration for life estate if when PP holder dies Natural expiration of 10 year lease = 10 years

Rule of Construction for survivorship – unless survivorship to the time of possession is expressly required by the instrument, it is NOT a condition

o Ex. “O to A for life, then to B and his heirs” If B dies before A he and his heirs still have remainder; B does not have to

survive A in order to get property If O only wanted B to get property after A then expressly require

survivorship

REMAINDERS Once there is a remainder:

o Vested, or

Apply definition to figure it out Two part test: no condition precedent and at the time of

creation of interest it is possible to identify at least one person o Contingent

Remainder that does not meet the definition of vestedo Hypo: O to A for life, then to B and his heirs

Already know B has remainder Vested or contingent?

No condition precedent? None here for B to get property, B does not even have to survive

Can identify at least one person that has a future interest? Can identify B

B has a vested remainder

February 12, 2009

Remainder – future interest in someone other than the GR that will become PP estate, if ever, immediately upon the natural expiration of prior non-fee simple estates created simultaneously with this interest. (in same instrument)

EI – anything not a remainder Vested remainder – no condition precedent and at the time of creation of interest it

is possible to identify at least one persono 3 types

Indefeasibly vested remainder Cannot be destroyed nor diluted (BEST) Do not have to anything to keep it, do not even have to survive

Vested remainder subject to open In a class – someone could join class Ex. To my daughter for life and then to her children

o So if daughter has more children before she dies then all children share (interest can be diluted)

Vested remainder subject to complete divestment (taken away) Condition subsequent Ex. To A for life but if he starts smoking again then to C

Condition precedento If conditional language is part of formulation of remainder it is a condition

precedento Something that can stop someone from obtainingo “If/but if distinction”

If = condition precedento If determines possession, not interest

Condition subsequento Something that can take it awayo But if = condition subsequent

Takes away right of possession

Contingent remainder – anything not vestedo Only 3 ways to get there:

Condition precedent Remainder in unborn person Remainder in unascertained person

Ex. To Johnny for life then to Johnny’s heirs (won’t know who the heirs are until Johnny’s death)

Ex. To X for life then to his spouse; X unmarried at time of instrument

Convey – during life; devise – at death

Hypo: O “to A for life, then if B is alive at A’s death to B and his heirs”o Words of purchase – to A, to Bo A interest is pp; limitation – for life; A has PP interest in a life estateo B interest is future because A has PP interest

Now figure out whether remainder or EI B is someone other than the GR B will get possession immediately because he gets it after A dies

which is the natural expiration of a life estate Non-fee simple estate – yes because life estate Created in one instrument – yes because all in the same deed

o B has a remainder Now figure out what type of remainder: vested or contingent?

It is possible to identify at least one person to step on that land because B can

Condition precedent of A needing to die before B gets on the lando Not vested because does not meet 2 part test

o B remainder is not vested B has future interest in a contingent remainder Words of limitation for B’s contingent remainder – and his heirs

Modern trend, do not need and his heirs to be FSA; no words of limitation attached to the interest = FSA

o Under feudal times it would’ve only been considered a life estate if didn’t have and his heirs

o B has a contingent remainder in a FSA o O has not given everything away – reversion – because if B died before A did then

who does the land go to O If B did not meet the condition then B would not get it, so O kept

something for himself Don’t care if O is dead when reversion kicks in; O’s reversion goes to his

successors in interest Hypo: O “to A for life, then if B graduates law school, to B and his heirs

o To A and To Bo A interest = PP; limitation = for life

A has PP interest in a life estate

o B interest = future because A has PP Remainder because meets the definition

Can identify B but there is a condition precedent B has a contingent remainder in a FSA

FSA because of words of limitationo O keep anything? reversion if A dies and B fails to meet condition

Don’t care if O lives because can go to his successors in interest Hypo: B graduates law school but dies before A

o The contingent remainder was met because B graduates – now meets the condition so remainder vested

o Just because he did not survive does not matter unless expressed in the documento B has an indefeasibly vested remainder so his heirs gets the property when A dieso B’s interest vests when the condition is met, but possession will not arise until

prior estate ends, when A dies

Destructibility of contingent remainders – if time for possession has arrived and the contingent remainder is not yet ready to take, it is destroyed

o Ex. From hypo above if A dies before B meets condition then remainder abolished o Very few jurisdictions – FL is one of those jurisdictionso Majority of others jurisdiction – convert contingent interest into springing

executory interest Cannot give it to B before graduates law school; in these jurisdictions

Blackacre will go back to O for a little bit and then SPRINGS to B when condition met

Hypo: O “to A for 10 years, then to B’s children and their heirs”; assume at the time of conveyance B had 2 kids – C1 and C2

o To and to B’s childreno A PP interest; limitation – 10 years estate for years

A has PP interest in an estate for years o B’s children future interest

Remainder because A has PP, is not O, created in same doc., natural expiration of 10 years and leasehold estate is non-fee simple

Can identify at least one child, and children have no condition, not even need to survive

o Vested remainder subject to open; can be diluted by more kidso B’s children have vested reminder subject to open in FSA

C3 born?o Gets to join the class

C4 born 11 years after?o Too late because the rule of convenience cause the class to close at termination of

the earlier estateo Rule of convenience – when time for possession arises and at least one person

is ready to take then the class closes

Policy – want property used at highest and best use and if C1,2,3 think land can be further diluted then may not invest further

Class does not close if cannot name one person at time of possession At time of conveyance, B was childless?

o Reclassify everything!o A still has PP interest of estate for yearso The remainder becomes contingent because no children – unborn; cannot name

at least one person

February 17, 2009EXECUTORY INTEREST

History = Useo To avoid restrictions on land transfers

O “to T and his heirs for the use of the Franciscan Friars” Law court only recognize T as owner but equity recognizes T’s use

for the Friarso Function equivalents of wills

O “to T and his heirs for the use of O for life and then to such uses as O designates by will”

Law courts did not recognize will, so T owned everything; but equity courts would enforce

o To avoid incidents – tax loophole O “to T1 and T2 and their heirs for the use of C1 and his heirs”

Transfer to trusted individuals to hold for the benefit of the children

T1 and T2 could get off with land in law but not so in equity courtso To sell by bargain and sale

O for valuable consideration sells blackacre to A Conveyed to A in a deed and O got money from A, did not do the

ceremony only the document Law courts wanted ceremony and equity did not care

o Equity deemed transfer to be O “to O as trustee for the use of A and his heirs”

Executory Interest – future interest in someone other than the GR that is not a remainder

o Springing EI that in order to become possessory, divest to the GR following a

certain period of time during which no other GE is entitled to possession

GR GE Going back to GR and then springs forward to GE

o Shifting

EI that in order to become possessory, divest or cut short some interest in another GE

GE GE Hypo: O “to A upon A’s marriage to B”

o Words of purchase – to Ao A future interest

Apply definition of remainder; not non-fee simple E.I.

Springing because GR GEo The interest is created now, once O created deed; not possessory until married

Hypo: O “to A for life, but if A remarries, to B for life”o Words of purchase – to A, to Bo A pp interest in a life estate subject to a shifting executory interest because

words of limitation – for life and B can take ito B future interest, not a remainder because will not terminate at natural

expiration of life estate, will stop early Look at both E.I.s

Going to GE GE; thus, shifting E.I. Words of limitation – life estate B has a shifting executory interest in a life estate

o O keeps reversion Hypo: O “to A for life, then one year later, to B and his heirs.”

o Words of purchase – to A, to Bo A pp in life estate; not subject to anything because A has a perfect life estateo B future interest, E.I. because not upon immediate natural expiration of prior

life estate Springing because goes back to O before B B has springing executory interest in a FSA

o O has reversion subject to a springing E.I.

When do interests vest and become possessory? (ex. from last class)o B graduates – contingent remainders vesto B’s contingent remainder becomes possessory when A dies

When do interests vest and become possessory for EI?o O “to A for life, but if A remarries, to B for life.”

Vests when A remarries Becomes possessory at the same time

Hypo: O “to A for life, then to B and his heirs, but if B starts smoking again, to C and his heirs.”

o Words of purchase: to A, to B, to Co A pp interest in a life estate (immediate, for life = LE, not subject to anything

because nothing can cut A’s possession short)o B future interest

Remainder – subject to a complete divestment because of condition subsequent that can cut short possession

B has a vested remainder subject to complete divestment in FSSCS subject to shifting executory interest

o C future interest EI (because not upon natural expiration and not non-fee simple) Shifting because from GEGE C has shifting executory interest in a FSA

o O retained nothing Hypo: O “to A for life, then to B and his heirs, but if B starts smoking again, to O”

o B would have vested remainder subject to complete divestment in a FSSCS Use magic words

February 19, 2009

Estates other than FSA could be defeasible or subject to an EI

Hypo: O “to A for life, then to A’s heirs and their heirs”o words of purchase: to A, to A’s heirs

in this case A’s heirs are words of purchase not words of limitationo A pp interest in a life estateo A’s heirs future interest

Remainder ( because fits the definition) Vested or contingent: apply definition of vested

No condition precedent, cannot identify at least one other person because no idea if heirs exist

o Can we identify at least one if became possessory? Noo Only know heirs when someone dies, so does not matter if

already has children because they are likely to be heirs but could pre-decease A

o Analyze according to the moment the interest was created!

A’s heirs have contingent remainder in a FSA o O kept nothing

Hypo: “to X hospital forever, so long as the land is used for hospital purposes, if the land ceases to be used for hospital purposes the conveyance shall be null and void.”

o Words of purchase: to X hospital (in gift)o Interest: ppo Words of limitation: so long as = magic word for FSD

X hospital has pp interest in FSD o O retained possibility of reverter

Hypo: to X hospital forever, so long as the land is used for hospital purposes, if the land ceases to be used for hospital purposes to B and his heirs.”

o Words of purchase: to X, to B

o X pp interest in FSD subject to shifting executory interest (from above example)

o B future interest Not remainder because FSD is fee simple Shifting EI because from GEGE B has future interest in shifting EI in FSA

If B ever gets the land then it will be forever GR gave B his possibility of reverter

Hypo: “to W for life, then to A’s children” (assume A has C1)o Words of purchase: to W, to A’s childreno W pp interest in a life estate

Everything fine, she gets to live there until she dieso A’s children future interest

Vested remainder (apply both remainder and vested definitions) A’s children have vested remainder subject to open

o O keeps nothing What if before W dies A has C2 and C3?

o Class opens to include all 3 kids What if W dies before A has C2 and C3?

o Class closing rule – when time for possession has come, if at least one member is ready to take then the class closes (in order to develop land at highest use and concern is the current members in class would not spend money if their interest would continually be diluted)

o Only C1 gets land Rule of convenience: productive use of property

Property law recognizes a child in the wombo Make sure to analyze class closing rule; the baby in the womb is part of class

if closes but if kid born 2 years later they are not in allowed in class

COMMON LAW After through with this analysis then overlay the CL rules at end of it

o Check to see which CL apply in specific jurisdictiono CL rules

Rule in Shelley’s Case DWT DCR Merger

All apply at the time the instrument is created

RULE IN SHELLEY’S CASE Only comes in when single instrument creates life estate in GE and also creates a

contingent remainder in that GE’s heirs, estates are both legal or both equitable (if trustee in document)

o RESULT: if all elements met then remainder becomes a remainder in the life estate holder

o MUST BE HEIRSo If in first step does not say “to B heirs” then rule in Shelley’s case does not apply;

must be in words of purchase Rule of law, not a rule of construction which means that when it applies it will

apply in spite of the GR’s intento Rule of construction is meant to further the GR intent

FL abolished this rule

WAYS TO AVOID rule in Shelley’s Caseo Create EI rather than contingent remainder

Ex. instead of “to A for life, then to A’s heirs” draft: “to A for life, then 1 day later to A’s heirs”

Because it is not a remainder, springing EI, the Shelley rule does not apply

o Make one of the interests equitable and the other one legal Ex. “to a for life, then to T Trustee for the benefit of A’s heirs”

Equitable interest = trustee A has legal interest and A’s heirs have equitable interest

o Don’t use GE’s heirs as purchasers Ex. if heirs are not purchasers then immediately does not apply

“to A for life, then to A’s children” “to A for life, then to A’s issue”

o Ways to avoid the term “heirs”

Hypo: O “to A for life, then to A’s heirs and their heirs.”o Words of purchase: to A, to A’s heirso A pp interest in life estateo A’s heirs future interest

Contingent remainder (apply vested and remainder definitions) Not vested because cannot identify one taker

A’s heirs have contingent remainder in FSAo After classifying interest and estate, then move onto CL; if instruction say all CL

rules abolished or only do the former then done hereTold to analyze CL

o Shelley’s Single instrument – yes Life estate – A CR in GE’s heirs – yes Both legal or both equitable – both legal

Rule in Shelley’s case applieso Now A has a life estate and has a remainder in FSAo A has pp in life estate and remainder in FSA

RULE OF MERGER When 2 interests in the same parcel are held by the same person and the 2 interests

are not separated by something indestructible, the interests are merged Hypo: “to A for life, then to B and his heirs”; A then buys B’s remainder; now A has pp

interest in life estate and remainder in FSAo Rule of merger allows to merge because nothing in between o A now has pp in FSA

Hypo: “to A for life, then to A’s heirs”o Rule of merger applieso A has pp in FSA o When someone has more than one interest in the same land – ask yourself if it

mergers (it will as long as nothing indestructible in between)

Hypo: “to A for life, then to A’s heirs”o After applying rule in Shelley’s case – A has a life estate and a remainder in FSAo Then apply rule of merger – A has pp interest in FSA

Hypo: “to A for life, then to B’s heirs”o Words or purchase: to A, to B’s heirso A pp interest in life estate o B future interest in contingent remainder in FSAo Apply Shelley’s Rule

Yes single instrument, GE has life estate and that GE’s heirs do not have contingent remainder so rule does not apply

o O keeps nothing Hypo: O “to A for life, then to B for life, then to A’s heirs”

o A pp in life estateo B indefeasibly vested remainder in life estateo A’s heirs contingent remainder in FSAo Apply Shelley’s Rule

Single instrument –yes Life estate in GE – yes CR in that GE’s heirs – yes Both legal or both equitable – yes RULE APPLIES

o A now has life estate and remainder in FSAo Apply merger rule

Nothing can be in between DOES NOT APPLY

o A has life estate and remainder in FSA (assumed vested remainder because what made it contingent [not knowing who the heirs were] no longer exists)

o B has indefeasibly vested remainder in life estate

February 23, 2009

DOCTRINE OF WORTHIER TITLE GR conveys a life estate to a GE with a contingent remainder in the GR’s heirs, the

remainder is void and the GR has a reversiono Words of purchase – looking for GR’s heirso Rule of construction, not a rule of law

Rule of construction designed to help a court construe language for GR’s intent, only applied when furthers the GR’s intent

Problem: no evidence of GR’s intent, only have language of instrument

Presumption – were it could apply, it will be appliedo If want to rebut presumption need concrete evidence

o Can give away, sell or devise reversion; creditors can also get at reversion FL abolished rule WAYS TO AVOID

o Devise the property through a willo Do not have GR’s heirs as purchaserso Put in sufficient evidence to rebut DWT in drafting

Hypo: O conveys “to A for life, then to O’s heirs”o First classify the interest and the estateo WOP: to A, to O’s heirso A A has pp interest in a life estateo O’s heirs future interest in a contingent remainder in FSA

Contingent because do not know O’s heirs because he is still aliveo Apply CL DWT fits so O’s heirs CR void and O keeps reversion after A’s life

estate Hypo: O “to my mother, Ann for life, then to my heirs” ( assume at time of conveyance he

is a widower and O’s only living relatives are mother and 3 daughters, C1, C2 and C3)o WOP: to A, to my heirso A A has pp interest in life estateo O’s heirs future interest in contingent remainder in FSA

Mother, C1, C2 and C3 maybe his heirs but could also all predecease him, or he could get married

Do not know heirs until person deado CL CR in GR’s heirs so DWT applies and GR has reversion after A’s life

estate Hypo: assume 5 years after conveyance, O dies leaving a will that devises his interest in

land to girlfriend Bambi (DWT does not apply in this jurisdiction)o If DWT no longer applies then A has pp interest in life estate and O’s heirs have

contingent remainder Not Bambi because O was devising something he did not have because

gave away life estate and gave away remainder to his heirs Hypo: if married Bambi

o Then Bambi by statute as intestate heir would be heir and she would get some too Hypo: Bambi as girlfriend in jurisdiction that does apply DWT with same facts

o O keeps reversion after applying DWT; O can convey, sell or devise the reversion so O’s reversion is devised to Bambi

DESTRUCTIBILITY OF CONTINGENT REMAINDERS Unless a contingent remainder shall vest at or before the termination of all estates

prior to it in possession, it shall be destroyed; time for possession has arrived and it is still contingent remainder then it is destroyed

WAYS TO AVOIDo No CR, instead VR subject to complete divestmento Give to trustee

Hypo: O devises “to A for life, then if B marries C to B”o WOP: to A, to Bo A pp interest in a life estateo B future interest in contingent remainder in FSAo O keep reversion because B may never meet that condition

Now assume that at A’s death, B has yet to marry C and jurisdiction has DCR ruleo Under DCR, B’s CR is destroyed and O now owns the land when A dies

O’s successors in interest get the land if O is dead before A dies Assume DCR does not apply

o In jurisdiction that modified DCR, then converts CR to springing EI Land will go back to O for a bit, until B meets condition O has land in FSA subject to springing interest B has future interest in springing EI

Hypo: O “to A for life, then if B graduates college, to B and his heirs”o WOP: to A, to Bo A pp interest in life estateo B future interest in CR in FSA

In jurisdiction of DCR; A dies unexpectedly before B graduateso Land goes to O because B’s CR is destroyedo O now has FSA

In jurisdiction of modified DCRo B has future interest in springing EI o O has land in FSA subject to springing EI

If O dead, then O’s successors get it Hypo: O “to A for life, then to the children of B” (assume that at time interest is created

B does not have children)o WOP: to A, to the children of Bo A pp interest in life estateo Children of B future interest in CR

At A’s death, B has yet to have a childo In jurisdiction of DCR: O gets land in FSA o In jurisdiction of modified DCR: O gets land in FSA subject to springing EI and

children of B have future interest in springing EI

Hypo: O “to A for life, then to A’s children” (assume A is childless at time of conveyanceo Rule in Shelley’s case does not apply because heirs are not purchasers

Hypo: O “to A for life, then to A’s heirso Rule in Shelley’s case applieso A would get land in pp FSA

Hypo: O “to my wife for life, then to O’s children”o DWT does not apply because not GR’s heirs are not purchasers

Hypo: O “to my wife for life, then to O’s heirs at law”o DWT applies

February 24, 2009

RULE AGAINST PERPETUATIES Developed from Duke of Norfolk case

o Push away from dead hand controlo Allow one generation “at least in lives that be” to control for a period of timeo Court found future interests could be vulnerable to RAP

RAPo Only future interests are vulnerable and therefore must be tested

All EIs All CRs VRSTO Any class gift

CR in class, EI in class, VRSTO, VRSTCD if a classo Concern is that land will not be used to highest and best use

because people will not invest if interest can continue to be divvied up

o Ex. “to A for life, then if A’s children graduate then to those children who graduate”

o Not allowed to be touched All future interest in GR

Reversion, possibility of reverter, right of re-entry IVR

o Perpetuity period Must be sure the contingency cannot be met and, if dealing with a class

gift, that no one else can join the class after Lives in being + 21 years + relevant periods of gestation (only if fact

pattern says someone is pregnant) 21 years to wait for small kids to reach majority and gestation

period because property waits for a child in the womb Calculated from the date the interest was created

By conveyance or devise o Vulnerable interest does not violate RAP, if this can be true:

IT IS IMPOSSIBLE FOR _____________ MORE THAN 21 YEARS AFTER ____________’S DEATH

1st blank = condition or someone joining the class (what is making it a vulnerable)

o Anyone can have child until death because can adopto After dead, no more kids (regardless of frozen sperm,

etc.) 2nd blank = lives in being at time the interest was created

o 1st person to test = GR, if living Must be by conveyance because devise means he

is dead If GR makes statement true then done because

does not violate RAP; only go to second level if first level does not work

o 2nd person to test = purchasers in the order in which they appear in the instrument

Again, once make statement true then proven it does not violate RAP

A then B then Co 3rd person to test = intervening generation

Many instances there is not one Someone not named in instrument but makes

sense Ex. to A for life then to B’s children

o Test B even though he is not a purchaser

o 4th person to test = anyone else mentioned as relevant in the document

Not a purchaser because already in second level Not going to get there in this class but be aware

for practiceo KEY CANNOT USE A CLASS AS A VALIDATING

LIFE UNLESS AT THE MOMENT THE INTEREST WAS CREATED THE CLASS IS ALREADY CLOSED

Closed naturally Ex. to A for life then to B’s children

o Cannot use B’s children unless class already closed; can only be closed if B is dead at the time of conveyance

o RESULT: If exhausted search and vulnerable interest flunks test then it becomes void and strike it

o Infectious invalidity applies when the entire gift is terminated GR, had he known one part would be void he would want entire

interest to be gone

Hypo: O conveys “to A for life, then if B graduates to B”; this jurisdiction has RAP

o WOP: to A, to Bo A pp interest in life estateo B future interest CR in a FSAo Apply RAP

It is impossible for B to graduate more than 21 years after O’s death. Not true so must continue; O could die tomorrow

It is impossible for B to graduate more than 21 years after A’s death. Not true for same reason as O

It is impossible for B to graduate more than 21 years after B’s death. YES does not violate RAP B gets to keep CR in FSA ; do not need to strike because does not

violate the rule Hypo: O devises “to A and his heirs provided that liquor is not sold on blackacre, if

liquid is sold, to B and his heirs”o WOP: to A, to Bo A pp interest in FSSCS subject to shifting EIo B future interest in shifting EI in FSAo Apply RAP

It is impossible for liquor to be sold on blackacre more than 21 years after A’s death.

Not true It is impossible for liquor to be sold on blackacre more than 21 years after

B’s death. Not true

NO LIFE CAN MAKE STATEMENT TRUE 6011007029980421 0715

MUST STRIKE the EI o Becomes: O devises “to A and his heirs provided that

liquor is not sold on blackacre, if liquor is sold.”o O keeps right to re-entry

Hypo: O devises “to A for life, then to B’s children” (B has one child at the time of O’s death)

o WOP: to A, to B’s childreno A pp interest in life estateo B future interest in VRSTOo Apply RAP

It is impossible for more kids to be born more than 21 years after A’s death.

Not true It is impossible for more kids to be born more than 21 years after B’s

children’s death. Class must be closed when interest created for it to validate

o Cannot use it; REMEMBER THE KEY It is impossible for more kids to be born more than 21 years after B’s

death.

TRUE! Hypo: O devises “to my wife Anne for life, then to our son Bill for life, but if Bill

divorces, to Charles and his heirs.” (each of CL rules applies)o WOP: to A, to B, to Co A pp interest in life estateo B future interest in VRSTCD in life estate subject to shifting EIo C future interest in shifting EI in a FSAo Apply CL rules in lesser rules first – Shelley, DWT, merger, DCR and after all

those RAPo Apply Shelley

Life estate in GE – yes CR in that GE’s heirs

No CR and no one’s heirs purchasers here Needs to say – to A’s heirs

Both are legalo Apply DWT

Only applies if by conveyance Life estate in GE – yes CR in GR’s heirs

No CR and GR’s heirs not purchaserso Apply DCR

No CR so does not applyo Apply Merger

Nothing can come togethero Apply RAP

A is safe because her interest is not future It is impossible for B to divorce more than 21 years after A’s death.

Not true It is impossible for B to divorce more than 21 years after B’s death.

TRUE!o Therefore, C’s shifting EI is kept

February 26, 2009

Test vulnerable interest for RAP – the moment the interest is createdo By devise = at deatho By conveyance = moment deed is transferred

Apply lesser rules first: Shelley’s, DWT, DCR, merger and ONLY then RAP

o Hypo: O conveys blackacre “to my daughter A for life, then to A’s children for life, then to A’s grandchildren and their heirs” (A is 60, has one son S who is 30, S has no kids); classify interest in estates and address whether any of them would be affected by CL rules, all CL rules apply with modified DCR

o WOP: to A, to A’s children, to A’s grandchildren

o A pp interest in life estateo A’s children future interest in VRSTO in a life estateo A’s grandchildren future interest in CR in FSAo Apply CL Rules

Shelley’s Someone’s children are not heirs Need to have “to their heirs” as WOP

Modified DCR If when A’s children die and no grandchildren are born then

become springing EI; will go to the GR and then to grandchildren when she can

DWT No GR’s heirs as purchasers even though all family; think they will

be his heirs but do not know Find in WOP

RAP A’s children

o It is impossible for A to have more children more than 21 years after O dies.

Not trueo It is impossible for A to have more children more than 21

years after A dies. TRUE

A’s children VRSTO kept A’s grandchildren

o It is impossible for A’s children to have more children more than 21 years after O dies.

Not trueo It is impossible for A’s children to have more children more

than 21 years after A dies. Not true

o It is impossible for A’s children to have more children more than 21 years after A’s children die. cannot test class if not closed at the time the interest is created

o Cannot use A’s grandchildren because open classo A’s grandchildren’s CR is gone, have to strike it

A’s grandchildren’s interest stricken. O gets reversion

Life estate, then life estate then back to O; if O dead then successors in interest

March 9, 2009CONDOMINIUMS AN D CO-OPS

Income tax – very similar

Physical characteristics – very similar Property law standards – very different

Condoo Owner obtains an estate in land; has a real property interest; can also be

held in present and future interests, same as real land; go through interest analysis

o Also has an undivided interest in the common areas as TIC Ex. hallway, lobby, pool, recreation courts

o Individual loans to initially financeo Transfers

Few internal controls; hard to restrict the alienability of condos; easy to sell/buy

Easier to resell because the new owner will need to mortgage the property (banks love that)

o Real property interest + undivided interest in common areas as TIC + individual loans + few internal controls + mortgages

Cooperativeo Owned by the co-op association; organization owns title to the building with

each unit owner owning shares in the company that owns the co-op Stock = intangible personal property

o Each unit owner also owns a proprietary lease that lets him occupy one of the particular units

Aka: occupancy agreemento Blanket loan to initially finance

Co-op organization obtains one big loan from lender Way for low-income and bad credit history people to become

homeowners Bank access loan differently because looks at organization

instead of individual owners Gets loan and allocates debt among co-op members If one member does not pay, everyone is in trouble

o Transfers More restrictions on personal property (contrast to condo because it is

real property); restrictions on stock of a company; more internal controls on prospective purchasers

Cannot trample civil rights laws but can restrict other wayso Ex. if you want to sell unit it must first be to co-op boardo When deny people they get sued but only for civil rights

issues; if cannot show that then will lose “Share” loans – purchasers need to come up with money for portion

of blanket loan and new price of co-op today as has accrued over time If no cash then needs to go to bank but the security for co-op??

o share loan – pledge shares as opposed to giving mortgage

o Banks do not like as much because not familiar and greater risk which leads to higher interest rates

o Personal property (stock) + proprietary lease + blanket loan + more restrictive + share loans

MARITAL INTERESTS Separate property states

o Aka: title states or CL states Includes FL

o During ongoing marriage the existence of marriage does not affect title to property; does not alter who owns the property

o Each spouse owns what he/she earns during the marriage Ex. H makes 100K and W makes 200K

In separate property states each owns his owno H gets 100K and W gets 200K

o When ongoing marriage severed these states try to approximate a partnership theory of the marriage through equitable dissolution; upon divorce the property divided half and half

o Issues regarding dissolution of marriage Divorce = equitable dissolution Death

Dower – life estate in 1/3 of all real property the husband was ever seized, all property husband ever had

o When source of wealth become stuff other than real property then problem arises

Why many states abolished dowero Ex. 99 year leasehold – non-freehold so no seisino Ex. trust – non-freehold so no seisin

Dower replaced with “spousal elective share” o If spouse does not like what got in will can get

percentage Often 1/3 of the assets; FL is 30%

Can be more or less than what spouse should get

Some states sliding scale percentage depending on length of marriage but never exceeds 50%

Community property stateso Partnership theory of marriage

Economic of the couple depends on the efforts of the couple regardless of who is actually technically earning the assets

Whatever owned by the partnership is divided equally Ex. H makes 100K and W makes 200K

Each owns ½, 150Ko Property one had before the marriage remains separate property

o Property that is received by gift or inheritance stays as separate even during the marriage

o 9 community property states somewhat vary CA, AZ, TX, Idaho, Louisiana, NM, NV, WA, Wisconsin Look at book for further information pg. 289 – 294

o Do not have issue of marriage dissolution by marriage or death because taken care of in divvying up

HOMESTEAD Protection from creditors for principle residence

o Way of making sure the people that live in the state get to live in their home FL – no dollar cap***

o Article X, § 4: protects from forced sale by creditors and also restricts owner from transfers or disinheritances under certain circumstances and from devising it outside of the family

o Elements: Must be FL resident And actual intent to remain in FL indefinitely Size limits – can protect 160 acres outside municipality and within

municipality only ½ acre Do now have certain restrictions in regard to federal bankruptcy 3 exceptions of super-creditors that can force a sale:

Governmento Federal, state and local taxes

Mortgage lender or home equity lender Mechanics lien holders

o Someone who does construction on house and does not get paid

Not super creditor: hospital, any other creditors (Bloomingdale’s) TX also has unlimited homestead Other states have a dollar cap

FL – tax exemptiono Article VII, § 6

March 10, 2009

EASEMENTS Easements – using someone else’s land for a long period of time and then get right

to continue using it (like adverse possession but do not get possession just get right to continued use)

o “RIGHT TO USE”o Policies – highest and best use and prevention of owner’s stale claims

Want owners to inspect and tell people to get out because evidence can be lost and witness memory fades

o Interests in land Look for SOF problems – in writing and signed by the party to be bound

therebyo Creation

Expressly Grant Reservation

Implied Look at intent of parties by evaluating the language of

document Prescription

o Characteristics of Easements Appurtenant v. In Gross

Appurtenant: benefits the land owned by the holder of the easement; increase the use, utility or value of a parcel of land; is there another parcel benefited? cannot be the one the easement is on

o Dominant estate – parcel that benefitso Servient estate – parcel that is burdened by the

easement In gross: personally benefits the easement holder

o No parcel benefitso Only have servient estate, no dominant estate because

no land benefitting only the one burdened Affirmative v. Negative

Affirmative – gives the easement holder the right to perform an act on or use the servient estate owner’s land

o Profit – type of affirmative easement allows the holder to enter the land and appropriate something of value

Ex. right to remove timber, right to fish, right to remove citrus

Negative – gives the easement holder the right to prevent the servient estate owner from doing something on his/her land

o Look at easement holder and ask what he is doing? Giving something = positive Preventing something = negative

o Ex. X has west lot and 2 stories, Y has lot on water with on one story; X can see the ocean because higher than Y and does not want to lose view because Y could build up

X can ask for negative easement Specific v. General

Specific – gives the easement holder only the right to use a particular part of the servient land

o Geographically limited

General – does not specify where the rights may be exercised on the servient land

Exclusive v. Nonexclusive Exclusive – if that easement prohibits similar easements from

existing concurrentlyo Presumption againsto Very rare

Ex. where it would be dangerous to society to allow other easements at the same time; high voltage places, high speed rail

Nonexclusive – there could be other similar easements concurrently

o Presumption for

Hypo: A owns blackacre in FSA; B has the right use the roadway on blackacreo A owns an estate in land; B has a right to use roadway not an estate in land

Hypo: A owns 2 acres of blackacre in FSA with street running along north border of land; A decides to divide land into two one acre lots and sells the north lot with the adjacent street to B, keeps the south lot; In order to get to street, A expressly retains right to use roadway running up to the street

o A owns FSA in south acre and owns right to use the roadway on B’s land = easement

Expressly reserved easement when A conveyed the north acre A owns appurtenant, affirmative, specific (cannot go anywhere on lot, only

the road), nonexclusive easement South lot is dominant

o B owns estate in land in north lot FSA North lot servient

o Easement created expressly by reservation Hypo: A conveys 100 acres of woods to B but A retains right to hunt and fish on B’s land

o A has not retained an estate in land, only an IN GROSS easemento Not profit a prendre because nothing stating A took animals off the lando General

Hypo: X wants right to use Y’s roadway to get a new highway; Y owns north lot, X owns south lot; New public highway on north border of Y’s lot, X wants easement through Y’s property to get to new street

o X will ask for easement from Y Appurtenant, affirmative, general, nonexclusive easement Created by Y expressly granting to X

Corbett v. Ruben RULE: Cannot impress an easement on own land; if own two parcels then cannot

impress obligation on yourselfo Cannot have benefit and burden within yourself

Servient estate – the parking lot, P owned; Dominant estate – apartment lot, D ownedo Mostly the servient estate owners will be bringing suit to abolish the easement

1964 document sufficient in its own right because “hereby creates and establishes an easement”

o Court examined language and said although the title refers back to void 1962 document, the language (above) relays parties intent as otherwise

RULE: in gross easements are personal to that person and less likely to be transferrable compared to an appurtenant easement BUT BOTH TYPES OF EASEMENTS ARE TRANSFERRABLE

o Easement appurtenant presumed transferrableo Easement in gross – need to find evidence regarding how transferrableo If either easement is not transferrable then valid to original person but not to the

next generation RULE: easement made without term the courts presume appurtenant easement

intended to terminate when the purposes for which it was created can no longer be served – FSD, not FSA

o This case: easement would terminate when dominant estate no longer housing apartments

o Can also grant to reserve for a specific number of years or indefinitely RULE: “heirs, successors and assigns” language to show completely

transferrable and indefinite

Interests in Real Property

Easements – Creation 1. Express

Grant – Where the common owner grants land with no accessible right of way to the Grantee except over Grantor’s land.

Reservation – Owner of the servient estate conveys that land, but reserves for himself the right to the easement

2. Implied Strict necessity Quasi-easement

****These are the only two forms of common law forms of implied easements 3. Prescription

Implied Easements (Easements by implication)

Strict Necessity – 3 ElementsNote 1 page 303

1. Land in common ownership2. Severed into 2 or more parcels3. Severance creates the strict need for the easement

Under common law, for implied easements, there must be a conveyance of land into which the easement could be implied.

HYPO: O owned 2 parcels (first element of strict necessity). O deeds South lot to A (second element). O retained N. lot. A needs access. (third element)

N lot 1 acre – O’s lotS lot 1 acre – A’s lots

The court will say that the deed where O conveyed South lot to A. must have created the easement (impliedly).

Court will imply it when it is clear that the parties must have intended it.

A’s now owns south lot in FSA and an easement (right to use the North lot)

Remember: Need a deed of land on which terms of the easement can be implied.

O transfers South lot to A. The deed of South lot, to A, fails to mention an easement but the parties must have intended one in light of the elements. The court could imply the terms of the easement into the deed of the land.

This is an easement impliedly granted – where the common owner grants land with no accessible right of way except over the his own land

HYPO:O owned 2 parcels. O keeps South lot and deeds N. lot (one with access) to A. O retained South lot. O needs access now.

So again, this would be an implied easement.

This is an easement impliedly reserved – where common owner retains land which in inaccessible except by way of land which the person conveys.

Quasi-easement – 4 Elements1. Single owner burdened one parcel for the benefit of another2. The benefit is reasonably necessary for the benefited parcel3. The burden was apparent at the severance 4. The single owner transferred one parcel and retained the other

If you are fighting for the quasi-easement, you must argue to the court that obviously, this is what the parties intended.

HYPO: Go back to Corbett v. Ruben from last class with the office buildings on Parcel 2, the dominant estate and the parking garage was going to be created on Parcel 1 Pretend for this HYPO that there was no 1964 document

1. Single owner burdened one parcel for the benefit of another – Yes 2. The benefit is reasonably necessary for the benefited parcel – Probably Yes3. The burden was apparent at the severance 4. The single owner transferred one parcel and retained the other

So, it’s possible the document in Corbett v. Ruben could have been created under quasi-easement, but court didn’t go there

Schmidt v. EgerCritical issue is when was the ditch put in? 1968 or 1969

If the ditch was put in in 1969, then when there was a severance in 1968, the ditch was not apparent.

Schmidt wants the ditch because that ditch is benefiting his retained parcel. He said the ditch was created in 1968 and was apparent at the time of the conveyance.

The court said the ditch was put in in 1969 after the severance and was therefore not apparent at the severance

Quasi-easement – 4 Elements1. Single owner burdened one parcel for the benefit of another – Yes 2. The benefit is reasonably necessary for the benefited parcel – Yes 3. The burden was apparent at the severance – This is the real issue in this case 4. The single owner transferred one parcel and retained the other

What is the severance though?The option to purchase that was contained in the lease agreement or was it the actual lease?

Lease is an estate in land – that is sufficient to constitute a severance So, severance can occur at change of possession (Ex. in a lease), not just change in

ownership.

Anytime you have an easement, you must:

Florida has an Implied Easement by Strict Necessity Most important to know is the common law and then know to check for a statute

Common law:1. Land in common ownership2. Severed into 2 or more parcels3. Severance creates the strict need for the easement****Need a deed of land into which terms of the easement can be implied

Florida Statute:704.01 – Common law and statutory easements defined and determined

1. Implied grant of way of necessity – the common law rule of an implied grant of a way of necessity is hereby recognized. Such an implied grant exists where a person grants lands to which there is not accessible right……

704.02 – Statutory Implied Easement by Strict NecessityStatutory way of necessity exclusive of common law – Based on PUBLIC POLICY, convenience, and necessity, a statutory way of necessity exclusive of any common law right exists when land, which is being used…for a dwelling or for agriculture or for timber raising purposes is shut off or hemmed in by lands, fencing or other improvements by other persons so that no practicable route of egress or ingress is available….

THIS SECTION HAS NOTHING TO DO WITH THE INTENT OF THE PARITES – IT HAS TO DO WITH PUBLIC POLICY

If the common law applies, you can’t use the statute What necessity do you have to prove here? That no practicable route of egress or ingress

is available Can only use for agriculture, timber, or dwelling. – NOT COMMERCIAL

704.04Judicial remedy and compensation to servient owner

Now there is compensation to a neighbor that is unhappy about the easement. The easement will still be granted according to the statute, but at least the unhappy

neighbor will get compensation.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Best way to do an easement is an express easement!

March 16, 2009PRESCRIPTION

(( (Refers to only using easements not negative) Express

o Grant o Reservation

Implied (from M notes)o Strict necessity

Elements: Land in common ownership Severed into 2 or more parcels Severance creates the strict need for the easement

o Quasi-easement Elements:

Single owner burdened one parcel for the benefit of another The benefit is reasonably necessary for the benefited parcel The burden was apparent at the severance

The single owner transferred one parcel and retained the other

CL easement by implicationo Imply easement into a deed, must have been owned by the same person at one

point in time Common ownership

Quasio Burdened propertyo Common ownership

Only time implication would work here is a statutory easement by implication

Prescription – look in jurisdiction to figure out which one to useo Lost grant (rare)

Fiction that deed once existed then was lost; at some point and time a grant existed but it has been so long that it disappeared

Parties have been behaving as if there must have been a grant In connection with SOF Elements that claimant must show

Used Claim of right (without permission) Open and notorious manner Continuously

o Can tack previous time Can tack when privity Cannot tack:

Abandonment Ouster

o FL – CL 20 year time period Required time (check jurisdiction) With acquiescence of the owner of the servient estate

(submission, passive)o Adverse use (used in FL and vast majority of jurisdictions)

No SOF issue Elements the claimant must prove:

Used the land Claim of right (cannot be permissive) Open and notorious manner Continuous Required time (check statute) Use was adverse (hostile) to the interests of the servient owner If mentioned exclusivity in adverse use means something

different than in adverse possessiono Exclusivity not required in most jurisdictions for prescriptive easements

BUT new case in FL says exclusivity OR continuous

FL must overcome presumption that use was permissive of the owners

o Policy: highest and best use, prevention of stale claims, check property In adverse possession the owner of the land can bring action for ejectment In adverse use, the owner of the land can bring action for trespassing

White v. Ruth Millington White has dominant estate, Millington owns the servient estate

o Road A gets P onto his dominant estate by passing through D’s servient estateo If Road B was accessible then no strict necessity so no implied easement by strict

necessityo Haggett had a profit affirmative easement because allowed to take timber off the

land Servient estate owner asked Haggett for rent to use the road and to fix it

when he was done showed D knew the road was being used

D wanted P to admit that previous use was with permission because they would lose all COA’s

o Both adverse use and claim of right are gone Elements: (most the P’s can get is the right to use the prescriptive easement, not

title/possession because that would be adverse possession)o Used – yes D used the servient estate via the roado Claim of right – Ps used without permissiono Open and notorious – servient owner had notice because tried to stop use by

barbed wire and cable Do not have to prove actual notice, must show: knew or should have

known from the facts of the case (constructive notice) 3 types of notice:

Actual notice Constructive record notice

o One is deemed to know that which has been duly recorded

o So that we can rely on title searches; does not matter if did not go to record office

Inquiry noticeo Something from the facts should have made you ask

o Continuous – does not have to be daily, only subject to the use of the land (same analysis for adverse possession)

Can tack on timeo Required time – look at statute, satisfied in this jurisdiction; if no statute then

resort to CLo Adverse use – this element depends on the COA

Adverse use – focus on claimant; is he proceeding without recognizing anyone’s right to block him

Seen from cutting cable, not signing letter Need to put in barrier that cannot be destroyed

Lost grant – focus on owner of servient estate and ask whether servient owner is submissive, acquiescence

4 classificationso Appurtenant v. in gross

appurtenanto Affirmative v. negative

affirmativeo Specific v. general

specifico Exclusive v. nonexclusive (presumptively non-exclusive)

nonexclusive

State Ex. Rel Haman v. Fox No doubt as to who owns which parcel of land, issue of whether the public has the right

to use the P’s land that is adjacent to the lake shore When P’s put up new taller seawall – State brought action because the public because

they could no longer use the beacho Public using the beach for decades

Lower court ruled permissive use so cannot win under either prescriptive easemento No claim of right because permissive

Lower court used prescriptive easement; appellate court used policy argument to prevent stale claims

FL does allow public to obtain easement by prescriptiono 20 years and use must be exclusive of the owner or inconsistent with the

owner’s useo Presumption that use is permissive (not adverse) that claimant would have to

overcome Other arguments by State:

o Public trust doctrine: some resources (beaches, lakes) that they are held in trust by the State for the public and that private ownership of those important resources is allowed by subject to public’s right to use it

Does not work here because these lands held by federal government and then went into private use

FL Constitution – Art X § 11, includes public trust doctrine that permits public trust for area below high water mark

o Implied dedication: private property is deemed given over to the public because private owners intended to do it

Need evidence of intent to dedicate FL – private property owner must have expressly presented some sort of

intention to appropriate his lands for public useo Custom: time immemorial, uninterrupted; been in use for such a lost period of

time that the memory of man cannot run counter

FL – has custom; use is ancient, without interruption, free from dispute, specific parcel

March 17, 2009 Difference between lost grant and adverse use is the last element

o Submission v. adverse/hostileo If owner grants permission then fails under both theories

Page 324 Note 2o Servient estate owner demands, in letter, that the adverse user (not certain which

of two theories) stops his use before the required time has run? Is that good enough?

Appurtenant, affirmative, specific, nonexclusive (presumption) easement If lost grant then not submissive and the letter is good enough If adverse use then not good enough because needs to put up and

impregnable barrier The term “adverse use” applies to both theories

o Now in adverse use jurisdiction; owner of servient estate walks into my office and says neighbor keeps walking over and that is okay but I do not want him to have a legal right to do this forever; how prevent?

Grant permission Negates claim of right and acquiescence

o Now do not want him crossing over land at all? Must physically stop the trespasser If all that does not work then file an action in court, injunction

Here against trespasser, not ejectment If just get tort trespassing verdict then that is good enough because

then can take actions of enforcement

Fountainbleu Hotel v. 4525 Interlocutory appeal – will not resolve the dispute not determinative; appeal before the

case verdict given P is claiming to have some sort of right to block the D from doing something on D’s land

o negative easement, happens to be appurtenant too D could have purchased a negative easement but in this case he was not

offering to purchase D claiming to have obtained this by prescription RULE: do not recognize ancient rights, CANNOT obtain a negative

easement by prescription Must be affirmative Usually accomplished through zoning laws

Hayes v. Aquia Marina, Inc. – scope of an easement; ***EXAM*** Marina folks (not a party) have 84 boat slips and want to have 280

o In order to get to marina there is an easement on Hayes’ land that the boats will have to get there

o Hayes worried about more and more traffico Limiting language in document (used to determine what the parties

intended) P’s argument = labeled it as a private roadway – must signify that only

intended to be for personal use not commercial use RULE: an easement is created by grant or reservation and the instrument creating

the easement does not limit the use to be made of it, the easement may be used for “any purpose to which the dominant estate may then, or in the future, reasonably be devoted”

o Need to draft easement with limitations in order to stop this from happeningo If easement is not limited/restrictive than anyone can use it as long as it is

reasonable Pg. 332

TRANSFERABILITY/ASSIGNABILITY AND TERMINATION OF EASEMENTS

Appurtenant easement easily transferable by deed, by will or by intestacy unless the parties make it non-transferable

o Appurtenant easement presumed to transfer with the transfer of the dominate estate regardless if the transfer does not mention the easement

Why? Protects grantee of dominate against the grantor for forgetting to transfer the easement with the grant

Another highest and best use argument o To block easement appurtenant then do so expressly to negate presumption

Easement in gross also transferable and assignable if and only if:o The parties clearly intended to make it assignable, oro It is a commercial easement in gross (presumed transferable/assignable and

does not have to be a profit commercial easement, anything commercial) If one of these two and expressly made to show the intent of the parties

then permissible by the courts

Miller v. Lutheran “To Frank, his heirs and assigns forever” – all will have right to fish, boat in all the

waters of the corporationo Expressly stated so transferrable even though in gross

Later on, new grant that Frank gave to Rufus fishing, boating and bathing problem is that Frank never had bathing rights

o Can only give what already has After Rufus dies, both his heirs and Franks heirs give grants freely without speaking with

each othero Rufus’ estate then conveys to large Church group bathing rights which did not

even have in the beginning

Easement in gross – can argue commercial (ice company) and fishing/boating transferable because looked like parties intended it to be so with language of “his heirs and assigns forever”

Bathing rights acquired by prescriptiono Open and notoriouso Claim of righto Required timeo Adverse/hostileo Continuity o Used the lando Maybe exclusive (depends on jurisdiction)

Prescriptive easement in gross – no language to look at to determine the intention of the parties

o However, bathing rights were commercial so even through easement in gross it is a commercial easement in gross and transferable that way

Reason D could not exploit easement in gross because although transferable it has to be used in one common stock; it cannot be divided; all transferees must deal with easement together

o Must use together in both easement in gross scenarios (intended and commercial)

11 ways to terminate an easement – pg. 346 to 347o Express easement can terminate by agreement of the parties

Look at language of easement Could say date, could say time period or could say upon some event

o Easement implied by strict necessity will end when the need ends Whenever strict needs disappears so does the easement

o Holder of easement releases the easement to owner of the servient estateo By merger when the title to both the servient estate and dominate estate

comes into the same hands End up owning both properties then no longer an easement, just using his

own property to help his own property Does not become an easement unless give one property to someone else

o Easement ends by prescription If blocking easement that was once there for the required time then

easement ends; must meet all the elementso Easement can terminate if it has been abandoned

Need to show intent to abandon, not just lack of use for a loooong timeo Easement extinguished by estoppel

Expenditure of sums in reasonable reliance to the detriment of the person that relied thereon, then easement does not exist anymore (estopped from continuing easement); equity and fairness

Did something to show a reasonable reliance to own detriment

Reasonably relied on facts and took action based on that reliance then can make an estoppels argument

o Easement ends by destruction of building that serves as the dominant or servient estate

Ex. Corbett; if apartment building is gone then no need for parking loto Easement ends if holder of dominant estate misuses his easement in such a

way that it is impossible for a court to enjoin the misuse Just trying to prevent the misuse is not good enough Hypo: X and Y own own land in FSA with roads on each side; Y wants to

cross X’s land to get to lower street; express easement that X gives to Y to drive through property.

Expressly by grant, appurtenant, affirmative, specific and nonexclusive

Exclusive is like high voltage line (where none others could exist) Hypo: now Y gets dedicates new road on his land to the public, that

connects with Y’s easement through X’s land; public starts using the dedicated portion and then keep going through X’s lot; X does not want who public using it

THIS IS EX OF MISUSE TERMINATION because there is no way to allow Y’s use to continue and stop the public from driving through

o Easement ends if servient estate conveyed to a bona fide purchaser and purchaser without actual/constructive-record/inquiry notice about the easement

Inquiry – facts that suggest that purchaser should have inquired further Constructive-record – deemed to know that which has been duly recorded Actual – in document Hypo: guy who purchased Mr. Woodlands land; W kept easement to hunt

and fish; guy sold to purchaser, purchaser did not know about W easement.

Easement terminates If W recorded easement?

Easement upheld If purchaser told purchaser?

Easement upheld Hypo: get easement by prescription, do not go to court and record and

then title changes hand Easement by prescription owner’s loses easement because bona

fide purchaser did not knowo GO TO COURT, RECORD EASEMENT ONCE

OBTAINED BY PRESCRIPTION If title changes hand while attempted to get prescription, still

during required time, then that is oko Easement ends if servient estate is condemned by the government

March 19, 2009Lindsey v. Clark

Document says Clark’s reserved south side for easement road and what they really wanted was north side of easement road

Lindsey’s cannot say no notice because Clarks’ recorded and had possible constructive and possible inquiry

Lindsey’s try to say abandoned by in fact their house and garden cover the south, recorded but not used, easement

o Lindsey’s do not want Clark’s to use either of the easements Want north not to be allowed Want south easement to be terminated by abandonment

Party claiming abandonment has the burden of proofo Mere nonuse, even for long period of time, is not

abandonment Also claim estoppel

Lindsey’s did expend money on house and garden, but in reasonable reliance?

o BUT he who seeks equity must do equity Only relied on south because say people driving

on the north Cannot reasonably relied on nonuse for the

south because they knew about the north Court would not stop Clark’s from using south

without continuing use on the north Clarks could have raised prescriptive use, adverse use Lindsey’s could have said same thing for south lot to terminate recorded easement

LICENSES Permission by the title owner permitting someone to use the property RULE: license can be terminated at the will and whim of the person granting the

license, any time any place o Since not an interest in land it does not have to comply with SOF

Mosher v. Cook Restatement lists three exception to general rule (CL recognizes these)

o Licensee must have reasonable time to remove himself and his effectso License coupled with an interest is irrevocable during term of interest

Where licensee has interest in licensor’s property Hypo: LE buying cows from LR; does not say how to get them, LE

goes onto farm and gets tagged animalso LE can go onto property to get cows but once gets off

property then license becomes revocable

o Licensee expended sums upon reasonable reliance of licensor’s representations regarding duration of the license (estoppel theory); at that time becomes irrevocable for that particular time since LR sends signals of duration even though at law can revoke at any time; in this case not revocable for time period relied upon

Typically the court that do allow this exception require express language on part of LR regarding duration

Some courts do not need some courts

Does not matter whether they in good behavior if none of exceptions fit Could maybe argue estoppel or coupled with interest (only if bought something or

left something in deli) Hypo: if buyer already purchased goods and then asked to leave

o Exception #1 fits – must give him time to gather belongings and reasonable time to leave

Lindro v. Westage Tower Disagreement whether a license or a lease

o Court decides license because a lease need exclusivity of dominion and control over the area

o Misnomer on contract, called license a leaseo Possessory rights are determinative of a lease

If not then just a license

Stoner v. Zucker

REAL COVENANTS Covenantor – person who makes the promise, has the burden and bound by the promise Covenantee – benefits from the promise, has the benefit of the covenant

Sanborn v. McLean Covenants involve private restrictions/control of land

o Contrast with zoning and other types of zoning law because those are government restrictions

Two typeso Real covenants

Enforced by law courts; can get legal damages (remedies, money) One that runs with the land at law and entitled to money damages Elements:

Covenant must be enforceableo Cannot be unreasonable as a matter of public policy

Ex. promise to kill someone (unreasonable)

o Cannot be too vague (must be able to discern the parties intent

Court may read into it a reasonableness standard so not unenforceable for vagueness

o In a writing that complies with the SOF (interest in land)

A writing that is signed by the party to be bound thereby

Original covenanting parties must intent that the covenant run with the land

o Intent is relevant at the time of the agreement Look to language of document

Language to bind people farther in the futureo Ex. and his heirs, assigns, successors

in interest to the land Covenant must “touch and concern” the land

o Affect the relationship of the parties as landowners and either increase the use/utility value of covenantees land or decrease the use/utility/value of covenantor’s land

o Caveat: if benefit of promise is only in gross then covenant does not touch and concern

Must have horizontal and vertical privity (NEED BOTH)o Horizontal: privity of estate between original covenanting

parties Either: mutual (simultaneous interest in

property) or GR/GE (instantaneous relationship) Mutual – in addition to the covenant, the

original covenanting parties had a continuing simultaneous interest in the land covered by the covenant

o LL/TN LL and TN enter into lease,

LL owns in FSA and TN gets for 1 year; LL promises mow the lawn and TN promises to pay rent

LL=burdened regarding mowing lawn promise

TN=burdened regarding rent Ex. of LL/TN mutual

horizontal privityo Mortgagor/Mortgagee

I give a mortgage, the bank gets the mortgage

Mutual promises mutual horizontal privity

o Co-TN One TN makes a promise to

the other and simultaneous interest in the land

mutual horizontal privityo Easement relationship

X owns dominant estate, Y owns servient estate; X has easement for 10 years to cross over Y’s property to get to main road; Y says he will give it as long as X promises to maintain the road for that duration

X has easement and is CTR Y’s land is affected by the

covenant; Y’s gets benefit Both have interest in land, Y

by FSA and X by easement mutual horizontal privity

GR/GEo Instantaneous o Looking for a conveyance of land

from one of the original covenanting party to another and at that very moment they enter into a covenant

o Conveyance by sale, gift or deatho Vertical: privity between such parties and their respective

successors in title Looking a CTE then only need to show an estate

in land CTE with FSA could transfer only a LE and

transferee could enforce Same thing with leasehold Estate in land (blue and red charts)

o Not estates – easementso Estates in land – freeholds and non

freeholds Looking at CTR then successor must have gotten

the entire estate in land analyzed by time dimension

Successor must get exactly what they had Time dimension, not geographic; burdened

proportionately

o Ask whether successor got the entire estate under the time dimension; ex. started FSA, must give FSA; start with LE then must give LE

Time dimension is getting the same future interest GR had

o GR started out with FSA in 4 acres; he transfers one acre to A in FSA

A burdened by ¼ o Analysis:

Label the parties the original covenanting parties Put CTR, CTE; whether benefit or burden Then add vertical line as necessary to someone sold

to If no one sold, then use contract law REAL QUESTION: will this bind a party that was

not an original party Purchaser of the burdened property had notice of the covenant

o Notice – actual (someone told or in the document), inquiry (something from the facts should have made you inquire further), constructive record notice (one is deemed to know that which has been duly recorded in the chain of title)

o If no notice then not burdenedo Equitable servitudes (aka reciprocal negative easement)

Enforceable in equity (remedies, specific performance, injunction) Elements:

Covenant must be enforceableo Cannot be unreasonableo Cannot be too vague so cannot discern intent of the

partieso In writing that complies with SOF – or – if claiming

party can show equitable principles (estoppel or part performance) – or – if implied covenant is found from a common grantor with a common scheme (common idea of how to use each parcel in development)

If not in writing check for other equitable principles Intent with the original covenanting parties that it run with the

lando Look for words used in the document; heirs, successors,

assigns, etc. Covenant must “touch and concern” the land

o Cannot only be a personal promiseo Affect the relationship of the parties as landownerso Caveat: if benefit of promise is only in gross then

covenant does not touch and concern

Willing to let someone burden land as long as some land benefited

Benefit has to deal with land, cannot be a benefit that only affects a person

o Ex. Caullett v. Stilwell 170 A.2d 52o See litigation related in covenants not to compete

Hypo: A sells land to B but includes in the deed a covenant that B will not sue the land as a movie theater (direct competition with A’s other theater) for 10 years; does it touch and concern?

A = covenantee and B = covenantee This can run with the land because other

land directly affected Notice – actual, constructive on record and inquiry

Agreement made by original two covenant parties can run with the land and affect the successors in interest

o Can be one benefited or one burdened MAIN QUESTION: WILL THE PROMISE STICK WITH THE LAND?

McHuron v. Grand Teton Lodge Company Two restrictive covenants

o Approval of planso Variances

Grand Teton – benefits from promise covenantee McHuron – burden covenantor Issue: was the covenant written so vague as to be unenforceable? Was the covenant as

written, applied correctly? (was consent unreasonably withheld)o Nothing here violates public policyo Might be vague

Court finds that it is not so vague as to be unenforceableo Does comply with SOF o AND, the covenant was reasonably applied

McH – not an aesthetic issue, still pretty Court says – committee can still not allow it; they had never allowed it in

the past, consistency, did straw vote (took some actions to see if fair) This case at motion of SJ and the dissent says this is more of a fact question so needed to

go to a jury instead of judge ruling in favor of Grand Teton

March 24, 2009

If no element of horizontal or vertical privity then argue it is an equitable servitude Question with vertical privity – this guy was not a party to the original contract, does he

receive the benefito Same but with burden dealing with other side

Hypo: O conveyed part of his land to A, 6 days later A enters into a covenant with O to construct a dam; A then transfers the land to X

o O is the CTR (benefit); A is the CTE (burden); X under A, gets burdeno Not instantaneous conveyance and a covenant created at the same time so not a

covenant at law to get damageso Could sue for the equitable remedies do not need privity there

Runyon v. Paley Argument of restrictive covenant that runs with the land

o To only be residential and no more than two residences Original covenanting parties are Gaskins and Brughs

o Brughs were going to build residential but there would be more than two houses

Gaskins (CTE-benefit) Brughs (CTR-burden)

Daughter Paley (got through transfer of entire estate from B)

Williams (just need estate in land

Runyons not parties to covenant because obtained before the covenant existedo They got it a day before covenant arose

Touch and Concern – increase the use, utility and value of CTE or decrease the use, utility, value for CTR

o BUT: if benefit is in gross then will fail touch and concern Privity – all have horizontal, this one is instantaneous; Runyon did not have vertical

because they got interest in estate before covenant existed, all other parties did Intent – although language was ambiguous it does support a finding that Gaskins intent

was for restrictive covenant because she moved across the street and probably did not want condos built

o Argument about whether ambiguous but agree with the court

Neponsit Property Owners v. Emigrant Industrial Savings Bank

Neponsit Realty (CTE-benefit) Deyer (CTR-burden)

Transfers all property to individual owners Bank (gets burden, got entire estate)

Bank refusing to pay the $4o Problem is that individual property owners should have filed suit, not the property

association (they no longer have any interest to sue from) Not the right party, have no right to enforce

o Court gets around this issue by: viewed Neponsit as agent of individuals even though not in privity

Another court may have thrown it out Way around: let Neponsit keep a parcel of land or just get one or

two of the property owners to sue (do not need them all)

Tulk v. Moxhay Covenant to maintain and protect a little park area

o Successor to burden clearly had noticeo In England at the time, the only type of horizontal privity was LL/TN

Genesis of equitable servitude These days horizontal privity accepted more broadly, would accept instantaneous

privity when then they would only accept mutual

March 26, 2009TERMINATION

Covenant will terminate:o By expiration of the specific duration expressed in the covenant

Ex. Runyon v. Paleyo If released by the benefited partyo If the benefited and burdened parcel merged then covenant terminated by

mergero By prescriptiono If abandoned; need intent to do so and an addition, habitual and substantial

violations of the covenant Western Land v. Truskolaski

o By estoppelo If burdened property is conveyed to the burdened property without any of

the 3 types of notice; actual, constructive, inquiry Recall for a covenant to run with the land either at law or equity the

purchaser of the burdened property must have noticeo Covenant terminates if property condemned by governmento Covenant terminates under “doctrine of changed conditions”

Western Land v. Truskolaski No doubt as to the intent of the parties; not an issue of ambiguous or lack of intent Ds claim “doctrine of changed conditions”

o Restrictive covenant should not be enforced anymore because surrounding area and circumstances have changed so much as to not make the covenant practical

Ds saying that no longer have to comply with covenant that he originally entered into because it is no longer useful to land, substantial changes

o This court has to figure out: how much of a change is significant? (needs to be a big hurdle

RULE: for “doctrine of changed conditions” need changes outside and inside the residential area

o Need change that is so great as to make enforcement of the covenant inequitable or oppressive

o Covenant will stand even if the subject property has greater value as a commercial property

Again, unless enforcing it would be oppressive, cannot nullify covenant

If original purpose can still be accomplished, the covenant continues o Zoning ordinance cannot override a privately placed restrictive covenant

Need to rezone and jump the restrictive covenant hurdle Each acts independent of the other; can have a private covenant that

is more restrictive Rezoning is evidence to show substantial changes but not

determinative If city makes it commercial and says it can no longer be residential

– then can make the argument (very hard for that to happen; at that point can no longer enforce the restrictive covenant because it will be illegal)

o Abandonment or waived by some of the homeowners in the area, another of Ps argument

Since CTE says allowed violation of covenant then abandoned entire covenant instead of this one small aspect of restrictive covenant

Also commercial use in one house as a home office and babysitting house court said those commercial uses to specific and sporadic of violations

Violations to abandon the covenant must be general as to frustrate the original purpose of the covenant

Note 3 page 407 – what if landowners agree to a church, can they prevent a dental clinic?o Generally courts say, landowners can waive restrictions for some purposes but not

otherso A few violations are not enough evidence of abandonment

Practice Problem on Easements and Covenants1. Easements questions

a. Created, transferred, terminated what is the scopei. Created by expressly by grant from B to A

ii. Appurtenant or in gross, affirmative or negative, specific or general, exclusive or nonexclusive

1. Appurtenant because benefits parcel on the N. to use S. lot to get through

a. Lot 1 dominant (gets benefit); Lot 2 servient (gets burden)

2. Affirmative because gives A right to perform an act or use the servient estate of B’s land

a. If took something off, then would be profit3. Specific because only allowed to used particular area in lot4. Nonexclusive because presumption and could be other similar

easements concurrentlya. Go back and look at this test

iii. Transferred to Sam from Alfred and transferred from Boris to Xavier 1. B granted to A use of roadway as FSA; does the transfer of

ownership of parcel #1 make a difference?a. Does an easement transfer with the transfer of a

dominant estate?i. Appurtenant easement transfers with the

dominant estateb. Sam got through a will; Sam has right to use the

appurtenant easement over Lot 2 because an appurtenant easement transfers with the transfers of the dominant estate even if the easement is not specifically mentioned

2. GET ALL OTHER NOTES FROM SOMEONE ELSE BECAUSE WORD SHUT DOWN

Demarco v. Palazzolo

March 30, 2009RECORDINGS

Title transferred by?o Intent – GR intended to transfer valid deedo Delivery – of valid deedo Acceptance -- presumption of acceptance if deed of value

All of a valid deed Recording is not a prerequisite for title to transfer

o NEED to record but not absolutely necessary Every state has a recording statute but none are mandated for title to transfer

o Help us to maintain system of title transfero Protect against subsequent GE’s being damaged in the system

Interest land – easements, covenants, mortgages, FSAo All interests in land subject to the recording acts

o Affect all interests in land and instruments affecting the land CL is that the first GE to have obtained intent, delivery and acceptance of a deed

wins; prevails in interesto Only way someone to prevail over CL winner is if that person meets the exact

terms of the state’s recording statute To beat CL:

Be subsequent purchaser and meet state statute standard to win

If do not trump then state reverts to CL standard (first to come wins)

Two types of recording indexes (tells you what type of interest looking at, the names of parties involved, and location where actual document can be found)

o GR/GE system Listed GR’s name alphabetically (anything by that GR, all properties) Same with GE Searching – more tedious; need to go backwards in time through the

GE index first, then go forward in time through the GR index o Tract indexing system

As long as have the lot number than all that has happened in that lot is located in this indexing system

Easier to use but not that many counties use it, most common is GR/GE

Hypo: D wants to sell property to Xo First check to see if D ever had title to property – only way to see if he obtained

title is by him being a GE Go through GE index, beginning with today and go backward Find him in 1987 “Deed from C to D”

o Then see if C had title to transfer to D Now running C’s name backward in GE index beginning with 1987 Find “B to C” in 1972

o Then see if B had title to transfer to C Run B’s name in GE index Find “A to B”

o Find that A received it from the government (stop anytime the GR is government); some jurisdictions stop at 60 years, others at 47 years

o If cannot find it under this system, then even if document that is filed If can find it under a proper GR/GE search then wild deed (happens when

not filed correctly)o Go forward through GR index to make sure they did not give title to anyone else

Government, A, B, C At C, find that he gave a mortgage to a bank sometime after 1972 “C to Bank” then “C to D”

Should have been cleared and taken off the title records (would see payoff letter), should be concerned if mortgage has been paid off

security interest to bank; also possible that was paid in full, but also possible it had not

Could also find C gave easement or covenant Could have also found “C to Y”

o Under CL Y would prevail over D (CL = first in time)

CL Rule – tell who would prevail under CL and then who would prevail under state recording statute

o As between successive GEs, first in time wins Priority in time

o Hypo: O to A in deed shows intent, delivery and acceptance; O subsequently transfers to B in deed

A prevails at CL; once O transferred he had no interest left to convey to subsequent purchaser

B may still have a claim against O (fraud, negligence) but that is not property

Recording Statutes:o Race (original, now pretty much out of favor)

Must show: subsequent purchaser who records first, to prevail over prior purchaser; nothing regarding notice

Hypo: O to A, A does not record; O to B for valuable consideration, B records

A at CL, B in race; only way B wins is if he meets the exact words of the recording statute

If B had been a done? A at CL and since no valuable consideration then A would win

under race tooo Notice (adopted because courts were not comfortable with a subsequent

purchaser winning when knew already of a prior unrecorded purchaser) Must show: subsequent purchaser without notice prevails over prior

purchaser (really means without notice) Without notice at the time of conveyance to that P

Hypo: O to A, A does not record; O to B for valuable consideration, B is without notice

A at CL because first intent, delivery and acceptance of a deed; B prevails in notice because met exact terms

FL IS NOTICE STATUTE STATE Hypo: O to A, A does not record; O to B, B is without notice; A then

records A in time to have intent, delivery and acceptance of a valid deed at

CL; B in notice because at time he was a subsequent purchaser (paid valuable consideration) [would not prevail if a DE, CL would stand at that time] and did not have notice of A at time of his deed

ASK YOURSELF: can B meet the exact terms of the statute? If not, CL wins

B wins even though he did not recordo Race-notice

Must show: subsequent purchaser without notice at the time of conveyance to you, who records first; then will prevail over prior purchaser

Hypo: O to A, A does not record; O to B for valuable consideration and B is without notice; A records

A at CL because was the first in time to have intent, delivery and acceptance

B in notice jurisdiction A wins in race-notice

Now A records, B records? A at CL A at race B at notice A at race-notice

O to A, O to B, B records, A records B at race-notice

Hypo: O to A, A did not record; O to B (paid valuable consideration) who knew of conveyance to A, B recorded

o A at CLo B at raceo B does not win at notice so the CL standso B does not win at race-notice so CL stands

March 31, 2009

Shelter Rule: if a person takes from a bona fide purchaser who is protected by the recording statute, the person who takes has the same rights as the bona fide purchaser had

o Bona fide purchaser – person who gives valuable consideration and has no notice of the prior conveyance

o Protects the bona fide purchaser by allowing him to transfer (convey to some 3rd party)

Hypo: O to A, A does not record; O to B for valuable consideration, B is without notice; A now records; B to X, can B transfer?

o A and X are staking a claim to blackacreo No idea, need to know jurisdiction, lets say in FL (notice jurisdiction)

A at CL because first to get intent, delivery and acceptance in time B at notice because he is subsequent purchaser without notice

B trumps A Under shelter rule, X prevails because B was a bona fide purchaser

protected under the notice recording act

Hypo: same as above, move into a race-notice jurisdiction?o A at CLo B does not win at race-noticeo So reverts back to CLo Therefore, X does not get land; shelter rule does not apply

Only get the benefit of the shelter rule is buying from someone protected under the recording act; that did not happen here

Hypo: notice jurisdiction; O to A, a does not record; O to B, B is without notice; B to X; O to C, C is without notice

o 3 people staking a claim: A, X and Co A at CL because intent, delivery and acceptance first in timeo B at notice prevails over CL; X can apply the shelter rule and step into the shoes

of B; X prevails over Ao C is a subsequent purchaser without notice that prevails over prior purchaser at

noticeo X does not prevail over C because B would not prevail over C

Hypo: notice jurisdiction; O to A, A does not record 2002; O to B for valuable consideration and is without notice in 2003; A records in 2004; B to X in 2005; O to C, C is without actual notice in 2009

o A at CL because first with intent, delivery and acceptanceo B at notice and it trumps A; X is prevailing over A because of the shelter rule o C is not without all 3 types of notice, had constructive record notice

To find constructive record notice – go through GR/GE indexing system C needs to check the recorder of deeds office and courts assume they

check that of which has been duly recorded GE first look for O, found N to O in 1999 GR next look for O and see what he did

o Only going to find O to A, as recorded in 2004 What if X knew about recording of A?

o Shelter rule does not care what X knows; X would still win because shelter rule protects bona fide purchaser’s ability to transfer (B’s ability to transfer)

Hypo: O to A, A did not record; O to B with valuable consideration and had no notice; A now records

o A at CLo B at noticeo A at CL stands since B does not meet race-noticeo A at CL stands since B does not meet race

Same as above except B records, not A?o A at CLo B meets race-notice

Hypo: O to A, A does not record; O to B by gift without notice, B records; in a race-notice jurisdiction?

o A at CLo In order for B to win at race-notice – subsequent purchaser, without notice and

first to record Not a subsequent purchaser because by gift A at CL remains

Hypo: O to A, A does not record; O to B for valuable consideration and without notice; B to X; A records; in race-notice jurisdiction

o X and A are staking a claimo A at CL because valid deed first in time to get intent, delivery and acceptance o B does not win at race-notice so X cannot prevailo A’s CL wins

Anderson v. Anderson ALL RECORDING STATUTES REQUIREMENT THAT PURCHASER BE OF

VALUABLE CONSIDERATION “every conveyance…not recorded shall be void against any subsequent purchaser in good

faith, and for a valuable consideration,…whose conveyance is first recorded..prior to the recording of such conveyance”

o In good faith – no noticeo Prior recording void – race

this is a race-notice jurisdiction

James would win at CLo Only way someone trumping James is to meet the exact requirements of the race-

notice Ida and Willie – subsequent purchasers no because no valuable consideration

o Valuable consideration = must be valuable, not nominal; not equivalent but just valuable

o So they do not qualify as subsequent purchasers Subsequent purchaser – need valuable consideration

Hypo: O to A, purchased for substantial consideration and does not record; O to B as a gift and B had no notice, B records; in notice jurisdiction?

o A at CLo B does not win at notice because not subsequent purchaser, so CL stands

Hypo: O to A as a gift, A records; O to B for valuable consideration; notice jurisdiction?o A at CLo B is a subsequent purchaser but not without notice because constructive record

noticeo Donee can record IMMEDIATELY! To prevent everyone else from meeting the

terms of the recording statuteo A’s CL prevails

April 2, 2009 Policy behind the shelter rule: designed to help the bona fide purchaser transfer land

Under the shelter rule for pure race – shelter rule, cannot have any notice and must record first

Hypo: O to A, A does not record; O to B for valuable consideration, B is without notice; A records; B to X; in notice jurisdiction?

o A and X both staking a claim for land because B is goneo A at CL because first in intent, delivery and acceptance of a valid deedo B at notice because he is a subsequent purchaser (valuable consideration) [from

Anderson, only need substantial, not equivalent consideration] without notice B prevails over A B’s transfer to X prevails over A using the shelter rule

Hypo: O to A, A does not record; O to B for valuable consideration, B is without notice; B to X; O to C, C is without notice; in notice jurisdiction?

o A at CLo X steps into the shoes of B and X prevails over Ao X does not prevail over C because B would not prevail over C

Hypo: O to A, A does not record 2002; O to B, B is without notice 2003; A recorded in 2004; B to X in 2005; O to C, C is without actual notice in 2009; in notice jurisdiction?

o A at CLo C should have known by constructive record notice

Backwards by GE Forward by GR

Only thing that would show up on a title search is O to A because that was the only title properly recorded

o X prevails over all

Assume A did not record, instead X recorded when he got the property from B (B to X) in the last hypo?

o X, C and A all staking claims over land o A at CLo X prevails over A because B would prevail over Ao C prevails over X because when go backwards in GE and then forward in GR

would not see O to B or B to Xo WILD DEED (B to X)

X should have done a title search because then would have found that B does not have anything; X should have made B record, and then he would be fully protected

Sabo v. Horvath – good conveyance case Wild deed – deed which is outside the chain of title

o Deemed unrecorded; otherwise it would make the entire recording system in a name-index system (GE/GR index system) unworkable

Alaska has a race-notice statuteo Need no notice, subsequent purchaser and record first

Quitclaims deed – I convey everything I have, no warranty attached (meaning there may/will be defects in the title)

o If there is a defect in title then have to sue someone other than the GR because no guarantee

o Someone who obtains a quitclaim deed is protected by the recording acts QUITCLAIM DEED IS PROTECTED = majority

Lowery, by lower court determination, has obtained sufficient interest to convey even though the government had not issued the patent before Lowery conveyed to Horvath

Horvath 1st purchaser Sabo subsequent purchaser

o In race-notice need SP, first to record and without notice H at CL Race-notice

Sabo did not have notice when running through GE then GR indexes because from Government to Lowery and then Lowery to Sabo

o Horvath should have rerecorded after patent Sabo is the first to record because the Horvath deed was wild

(outside the chain of title)

ESTOPPEL BY DEED Aka – after acquired title doctrine

o Equitable doctrine enforced by the equity courts Estoppel by deed – if a GR purports to convey property that he does not own and

subsequently obtains that title, GR cannot deny the GE’s titleo Courts have pretty much limited it to recipients of warranty deeds

One of very few instances where after acquired property will be estopped from claiming there was no transfer

o Expenditure of sums in reasonable reliance on the actions of the other party After-acquired title analysis

Hypo: L conveyed by warranty deed to H before L received patent from the government; then L gets the patent?

o Estoppel by deed the land goes automatically from L to H L cannot deny H claim to land

Hypo: Jr thinks he will get land from Sr by will; Jr transfers before Sr dies; Jr gets loads of money by warranty deed from A

o At the time of the transfer to A, Jr does not have lando When Sr dies:

Doctrine of estoppel by deed property goes automatically from Jr to A right after he gets deed from Sr

April 6, 2009

DEED Phase 1

o Livery of seisin – transfer land by exchange of dirt; mostly because people were illiterate

Phase 2o Statute of uses – bargain and sale deed could transfer title of land in writing;

beneficiary of the use got legal titleo 2nd phase = Livery of seisin or bargain and saleo Equitable beneficiary now holds legal titleo O kept trust

Phase 3o Statute of frauds – land transfer must be in writing

Applies to deed and contract Phase 4

o Recording act – not required but definite benefit

Title to transfer by deedo NEED: (all of a valid deed)

Intent Delivery Acceptance

o Requirements of deed GR and GE name Some sort of words of conveyance

“convey”; “transfer” Valid description of land

Address not good enough because do not know the boundaries Can use:

o Metes and boundso Government surveyo Plats

GR signature In writing and signed by the party to be bound thereby GE is benefiting, he is not being bound

Any other state requirements Ex. 2 witnesses, notarized for recording FL = 689.01

TWEN has different types of deeds

Types of deeds based on covenants (do not need covenants for title to transfer, only need intent, delivery and acceptance of a valid deed; only left without a way to sue GR for any damages)

o Covenants of title – GR warranting that title is of a certain type and promise that GE protected against certain things

o Types General warranty deed (many states do not explicitly state all 6 but it

is assumed they are in there) Contains 6 covenants of title (1st three are present, last three

are future) Present covenants – run with the land and if breached they are

breached the minute the deed is delivered (SOL begins at delivery)

o Breach of covenant of seisin or right to convey – damages are purchase price plus interest

o Breach of encumbrances – need expert to determine how much land has been encumbered to find damages

Future covenants – begin to run later and only affected by someone with paramount title

o Covenant of seisin – GR warrants that he holds legal title; he has been seized with the land

If O grants FSA and only has FSD then broke the seisin

o Covenant of right to convey – GR warrants that he has authority to convey

Someone can have legal title but no authority to convey

Ex. trustee holds legal title for benefit of beneficiary

o TE has legal title (covenant of seisin) but no right to convey (no authority to convey)

Ex. breach covenant of seisin but not right to convey power of attorney

o Covenant against encumbrances – GR warrants the land is not burden by encumbrances (mortgages, leins, easements, restrictive covenants)

If there are encumbrances on the land then expressed exception

Ex. FPL has right to land, then just state that in the deed as an exception to the covenant against encumbrances

Ex. if O sells land to A; land has a mortgage; part of deed is that A will assume mortgage

o O should have made an expressed exception because this is still an exception

o Covenant of quiet enjoyment – GR warrants that buyer will not be evicted by someone with paramount title to the GR

Ex. someone who had a better title than the GR; not just a trespasser

o Covenant of warranty – GR warrants to defend against lawful claims by someone’s assertion of paramount title

Broader than CQE because protects from any lawful claim, not just eviction; only against someone with paramount title

o Covenant of further assurance – GR warrants that he will assist the buyer in perfecting the title

Ex. signing or turning over papers Special warranty deed

Contains all 6 but GR only warrants that no defects arose while GR had the land; GR will only warrant to what he knows about; can get redress from a title insurance, etc.

Quitclaim deed Give without any warranty; no covenants of title GR could know there is clean title and still give by quitclaim

simply because GR does not want to warrant it

o Delivery of a deed: based on the intent of the GRo Need existence of deed, signed by GRo LOOKING FOR EXISTENCE OF A DEED BEFORE IT CAN BE

DELIVERED

Wilcox v. Poineer Homes, Inc. – zoning ordinance issue Conveyance of a general warranty deed contains all 6 covenants

o When surveyed: the house violated a city ordinance and a private restrictive covenant

Here there is a restrictive covenant wider than the city ordinance Just under the restrictive covenant issue – GR violated against covenant against

encumbrances and then subsequently against GWD (general warranty deed) In order to rectify the situation – GR had to buy another piece of land in order to sell

o Was not able to sell by violation of private covenant because still needed 15 feet Violation of city ordinance at the time of the conveyance is an encumbrance, the

existence of a city ordinance does not matter – it must be violated for it to become an encumbrance

o Court found that a violated zoning ordinance was an encumbrance, not the existence of a zoning ordinance

The fact that there is a city ordinance does not matter – deemed to know everything out there

All land is subject to state’s police power and each county can require certain things

Chandler v. Chandler – 3 rd party delivery Sometimes the deed goes somewhere else before being transferred

o How to you know if there has been delivery when first held by a 3rd party? (escrow)

Presumption of delivery when:o Deed is found with the GE

Can be rebutted with evidence to the contraryo Deed was notarized

Can be rebutted with evidence to the contraryo Deed was recorded

Can be rebutted with evidence to the contrary If there are conditions attached to delivery and 3rd party is only the GR’s agent then

probably not deliveryo If GR has control then probably not deliveryo GR needs to divest himself of dominion and control

If no real condition attached to delivery and the 3rd party is the GE’s agent the probably has delivery

Issues:o Who does 3rd party work for?o GR’s intent? Does he still have control?

Hypo: when I die, deliver this to Johno Completed deliveryo Not possessory today, only sometime in the future but was completed sometime in

the GR’s lifetimeo Transfer of future possession now

RULE: fact of delivery rests in the GR’s intention, which is an issue of fact to be determined from all the attendant circumstances at the time

o This court did not look for presumptions (found with GE, notarized and recorded)

When facts are a little unclear must look toward presumptions and those will usually tip the balance the other way

American National Self Storage Inc. v. Lopez-Aguiar – merger case MERGER – real estate purchaser contract merges into the deed

o Buyers interest in the real estate contract disappears and merges with his interest in the deed

Really more of a waiver than a merger; by accepting the deed the buyer is waiving whatever he might have gotten in the prior real estate contract

Deed is the final act and is deemed to be the expressed agreement of the parties

o 1st: real estate contract Then a few days; these days spent getting financing, surveys, etc.

o 2nd: get deed at closing Law assumes that is there is something in the contract that is not in the

deed then it was negotiated away If the deed was not what the buyer wants it to be then he should reject the

closing Law presumes that if deed accepted then negotiated (if take less than what

was going to take, it is buyer’s fault)

April 7, 2009

Merger – depends on INTENTo Issue: whether promises made in a real estate contract merge into the deed; can no

longer sue under the contract, only under the deedo When buyer accepted the deed – buyer intended that would be the final agreement

Waived all other promises not in the deedo Contract merges into deed because presumption that the parties wanted to close

their relationshipo EXCEPTION: collateral obligation

If intended obligation (not the sort of promise that would be included in the merger doctrine) not to be extinguished by the closing (deed)

Do so by EXPRESSED writing Ex. look at house and something wrong with the roof; real estate contract

says to fix roof Say in real estate contract – the roof issue is a collateral

agreement that survives the closingo Put EXPRESSED LANGUAGE in original real estate

contract or in a new contract the same day of the closing

In this case – it is the type of collateral agreement usually not included in the deed and therefore was not the sort of promise that would merge

o Collateral agreements that are not usually included in the deed do not mergeo If talking about seller’s representation dealing with the title WILLMERGE

because of all the 6 warranties Covenant usually included in the deed merge

Promise of no encumbrances and then deed did not include that warranty (this sort of case, since the kind that would be included in a deed [6 warranties] will merge)

Promise of no restrictive covenants (same analysis – this pertains to title to the property or warranties of the title)

o Difference between warranty deed and quitclaim (court believes the parties agreed on different terms)

Something dealing with the quality of the title is something that should be in the deed

Covenants usually no included in the deed do not merge Ex. AC, heating, plumbing, electrical, improvements, build bridge,

basement habitable

LL/TN SOF SOF

o Original English SOF, 3 yr oral leases, said that if was not in writing then had only the effect of an estate at will; estate terminable at the will of either party

o RULE: interests must be in writing, including leaseso EXCEPTION: lease must be in writing unless it will not to be performed one

year from the making thereof “Making thereof” – from agreement (possession) or lease term (when

actually take physically occupancy) Exceptions read narrowly but the courts are split; check jurisdiction

to see the interpretation Seems as if majority is the narrower, stricter reading

Pg 27 Problem #3o L orally agreed to rent T a house on May 18, 2007 for one year term beginning on

July 1 and ending on June 30 the next year; violate the SOF? Depends on the interpretation of “making thereof”

Narrow reading – that violates SOF because longer than one year Broad reading – does not violate because occupancy begins on

July 1

Gee v. Neiberg Court used “making thereof” strictly – used date of written lease agreement

o Narrow interpretation of the moment you shake hands o If it was a jurisdiction using liberal view of “making thereof” then it would be

performed within one year Since the agreement was oral then a subsequent modifications can be

oral RULE: is a lease is in writing then a modification of a written lease

must be in writing In this case the oral agreement was a rescission (termination)

not a modificationo General contract law trend toward permitting oral

rescission even if lease itself has to be in writing AND unexpired time of the lease (in this case 1 month) less than the 1 yr requirement of SOF

Hypo: lease in writing for one year, in jurisdiction that requires writing; when TN wants to leave, 3 months left; LL tells him not to leave and negotiates orally to allow TN to pay $800 instead of $1000/ mo.

o Courts will not accept modification because oral TN says I need to move because having trouble paying rent; LL says orally, that he will

let him outo Since rescission then allowed orally

POLICY: courts allow oral rescission and not oral modification because modification continues an ongoing contractual relationship

CLASSIFICATION BY DURATION Different types of leases

o Created expressly by the parties: (can be oral or written) Tenancy for a fixed term (aka estate for years)

Estates in land Non-freeholds Certainty of the duration

o Death of LL or TN will not termination, only the time will terminate it

Terminates automatically at the end of the termo Do not need notice to terminate

Periodic tenancy Lease for identical periods Will continue for successive periods unless one of the parties

gives notice of termination o Ex. year to year; month to month

If notice is not give, it automatically extends to another period o Tons of litigation as to whether or not proper notice given

o Not really an expressed relationship; the law tells the parties they are in this relationship

Tenancy at will No period of duration Terminates at will of either party (modern statutes require

some notice)o Almost seems to change TAW to something more than

what CL intends it to be Tenancy at sufferance (aka holdover TN)

Had a TN that was in lawful possession at one point and has decided to stay beyond the written or oral period

o Ex. TN originally had estate for 3 years and the 3 year date comes up, no notice; once the date runs then the TN becomes a holdover

o Ex. TN originally has periodic tenancy, no notice and TN stays; TN is not a holdover

o Ex. TN originally has a periodic tenancy, LL asks TN to leave; if TN stays then has holdover

o Ex. TN originally at TAW, LL notices TN to leave; TN becomes a holdover

LL could bring action to evict or elect to extend for another term

DUTY OF LL TO DELIVER TN RIGHT OF POSSESSION Lease contract and a conveyance of an interest in land

o Both contract and property law theories apply If cannot win under contract law then check to see if can win under

property theory and visa versa Issue: what is LL obligation to the TN regarding the first day of possession?

o Look at lease agreement to see what LL duties are to delivery of possession the first day

o Courts say – implied obligation of delivery of possession since that is the whole point of a lease

Different interpretations of what “delivery of possession” means Ex. Hannan v. Dusch

Hannan v. Dusch Entering into 15 year lease

o Contracted Oct 31, 1927o To begin occupancy on Jan 1, 1928

Problem is that LL had holdover TN who refused to leave; P/new TN sued because D/LL did not take action to oust

o This lease was silent regarding LL’s duty to deliver possession LL argued all he had to deliver was legal possession

If LL has contract with previous TN to allow him to stay until March, then did not deliver legal possession

Same thing if LL does not pay mortgage because bank has superior right

TN argued LL needed to deliver actual possession LL has an implied duty, simply because it is a lease, to deliver possession Duty of delivery of possession

o Can be legal possession, or Sue holdover

o Actual possession Sue LL

Court distinguished this issue of interpretation of duty of delivery from two other issueso LL required to assure that the TN has valid right to possession at beginning

of the term and against all who rightfully claim through LLo When new TN already in possession and a trespassers comes in afterwards

then it is the TN’s responsibility to get trespasser out

If after day one, a trespasser comes in then TN responsible for taking care of them (LL not an insurer against bad acts by some 3rd party)

2 interpretations of LL’s duty to delivero English rule:

LL required to give both legal and actual physical possessiono American rule

LL only required to give legal right to possession Solve issue with an expressed covenant in the lease explaining the LL’s duty to

deliver

April 9, 2009 Absent an expressed provision in the contract, what is the LL duty with regard to delivery

of possession on the first day the occupation is to begin?o American Rule

New tenant must go after the old tenant, not the LL This jurisdiction allows SJ to P in getting rid of holdover TNs

Issue: these Ps are usually LL, not next TNs; but this case the new TN got SJ rights to proceedings

BUT…before these SJ procedures the LL self-helped (took things out, changed locks messy and harms property)

o = policy reason for these SJ procedures TN wanted something more than the legal right, needed to expressly state

in the contract TN owns an estate in land, a lease, with both benefits and burdens

o English Rule LL must give legal and actual possession Justification – TN would not contract is he knew there would be a

holdover; LL has more knowledge about possible holdover TN problem; Usually easier for LL to evict someone (by SJ eviction proceeding)

In order to avoid holdover TNs – make penalties in the old TN contract and make it as painful as possible for the old TN to be able to holdover

For modern residential lease – which is most appropriate?o English – usually short term so by the time get to SJ eviction the new TN’s

lease is already out; new TN not capable of necessarily going to court; TN cannot really negotiate for expressed clause because no bargaining power

The court dealt with the LL’s implied duty of delivery of possession because not expressed

o Every LL has duty of delivery of possession – at minimum TN gets legal possession

o When negotiating new lease, expressly deal with LL duty to delivery If TN – want legal and actual physical possession on the date occupancy

is to begin

If fail to deliver both then TN gets damages because LL breached expressed covenant

If LL – only wants legal Ways to avoid holdovers:

o Penalty clause if TN holdover

If already negotiated for English Rule in expressed covenant, but did not dictate damages for TN

o LL subsequently did not deliver actual physical possession, how does court allocate damages?

Damages = (FMV Rent – Rent Stipulated in Lease) + special damages Ex. special damages – storage costs, lost wages, etc. Trying to give TN the benefit of the bargain

If represent the LL, then express a different damages clause Hypo: TN entered into contract with LL, TN to pay $1,000/mo in rent, the FMV is

$1,200; TN did not get actual possession o TN would get $200/mo + any special damages; gets that money until occupancy

can start Hypo: if FMV went down

o Then damages will primarily be special damages

COVANENT OF QUIET ENJOYMENT Lease – both property and contract law

o Jurisdictions can borrow parts of conveyance theory or contract theory HYBRID

o Jurisdictions may pick contract for residential leases and conveyance for commercial leases

Conveyance Theoryo Based on concept the TN has received an estate in land including both the

benefits and burdens of that land (non-freehold estate)o Covenants made by the parties are independent of each other

TN most important covenant – pay rent LL most important covenant – give possession

Also covenants other stuff: make repairs, garbage, etc. Covenants independent one party’s breach does not relieve the

other party from continuing their promises (covenants) The non-breaching party can only get damages

EXCEPTION: TN does not have to pay rent, if TN denied either legal or actual physical possession

Actual partial – rent abated/suspended, a few states apportion Actual total – do not pay rent until can possess

o Damages = (FMV for remainder of lease – Rent for rest of lease) + any special damages

o Hypo: LL warrants in lease to make repairs to sewer system; TN covenants to pay 10K in rent; LL breaches repairs obligation, TN still in possession

TN can sue (LL will have to pay damages) but must still pay rent o If TN denied actual or legal possession

TN does not have to pay rent Contract Theory

o Covenants made by the parties are dependent upon each other One breaches, then the other party is relieved from his covenants too

LL implied covenantso Duty of delivery of possession

Hannan v. Dusch – at outset LL must delivery possession under either American or English Rule

o CQE

Camatron Sewing Machine v. PM Ring Assoc. – actual eviction LL’s renovation of lobby would eliminate 25% of leased premises

o Expressed clause gave LL the ability to renovate the lobby but not to take away from the leased area; not right to make changes to the leased area

How distinguished from cases opposing counsel relies on; TN contracted away to LL the right to make changes to leased area and other cases, the renovations were only temporary

Court said the lower court got it wrong in interpreting Article 13 RULE: absent a reservation by the LL the TN has the sole and exclusive right to

undisturbed possession during the term of the lease and the LL has no right to take possession of a part of the demised premises to the exclusion of the TN

o Lease viewed as a conveyance of estate in land and TN has the right to undisturbed possession of the leased area for the lease term and the LL cannot interfere

This was an injunction case, so no damages issueo Page 40 Note 2

LL actually bulldozed part of leased premises and moved the wall in, LL did not have authority to do so in the contract

If LL does actually interfere with part of leased property, must the TN continue to pay rent? (if LL took all possession, then under all theories the TN does not have to pay rent)

Partial actual evictiono Smith v. McEnany – actual partial eviction the TN does not

have to pay any rent at all until the encroachment is removed; then must pay rent again

= the MAJORITY, because do not want to encourage the LL to change the contract

MINORITY – will apportion, but if the encroachment is substantial enough then they do not apportion

Hypo: TN leasing industrial park, 100 sq ft, $1,000/mo; LL blocks ¼ of it

o Majority – TN does not have to pay anything; rent suspended until the blockage removed

o Minority – apportionment, so TN still needs to pay $750 When apportion, have to look into subjective value of part of premises

taken away

April 13, 2009

In all jurisdiction if the LL breaches the duty of delivery of possession then TN does not have to pay rent, even under conveyance theory where covenants are independent

o If TN wants damages need to know what jurisdiction (American or English and how the LL breached, legal or actual possession)

The covenant of duty of delivery of possession is breached at the time the TN was supposed to get possession

o At that exact moment in time, at the very outset of the lease; at the very beginning

CQE – if breached at all is breached after; TN already had possession and then was denied possession

o If problem of possession occurs after TN has already has possession, even for a short period of time always CQE

o Can be breached with total or partial possession lost Ex. Camatron

Hypo: LL changes lockso Total actual eviction so TN does not have to pay rento If TN also wants damages (because in a contract with LL) then use formula

(FMV – rent for the rest of the lease period) + special damages Attempt to give TN good bargain of the contract

Hypo: takes away part of office spaceo Partial actual eviction

CONSTRUCTIVE EVICTION Lease has 3 implied covenants

o Possessiono CQEo IWH – premises must be habitable in order for TN obligation to pay rent

Under conveyance theoryo If TN denied possession then does not have to pay rent = ONLY EXCEPTION

So if LL breaches other obligations, does not alleviate the TN from having to fulfill his obligations

TN can sue for damageso Covenants independent

Short of actual physical eviction TNs had to continue to pay rent regardless of what the LL did

o Ameliorated to a small degree by doctrine of constructive eviction Constructive eviction – sometimes some acts of the LL amount to an actual eviction;

equal to physically denying the TN possession; not an easy burden to proveo If constructively evicted then that TN is in the same position as actual evicted

Lease terminated and the TN has no continuing rent obligationo CL development, raised as affirmative defense to not paying rento Elements: (burden is on the TN to make an affirmative case)

LL breached an expressed particular duty or covenant in the lease Must find an express duty of the LL, in the lease, that has been

breached Breach must be substantial (grave and permanent)

Minor breach, changing blinds – will not work TN actually has to vacate the premises within a reasonable time

Reasonable time is KEY TN gave notice to LL (some courts only say 3, others have the notice

element)

Automotible Supply Co v. Scene-In Action Corp. – not a reasonable time LL suing TN to get last 5 months of rent

o TN decided to move out early because heat broken, in Illinois o TN started complaining in Nov and TN decided not to leave until April 30; TN

left 5 months early No doubt that TN signed a lease, no actual physical eviction so the only way the TN can

get away with not paying is if he can show constructive eviction Elements of Constructive Eviction: very difficult defense

o LL breached expressed duty in the lease LL covenanted to provide heat in the lease

o Breach was substantial Not every breach is enough (according to this court) but lack of heat in

Illinois winter is a substantial breacho TN vacated in a reasonable time

If breach, and TN notifies LL and then TN decides to stick around TN waived the chance to leave

TN must give notice each time the LL breaches if TN has already waived the previous breach by not vacating

This court says because it is the same violation, the TN has not waived any future violations

When complained in Nov. and stayed then waived Nov. lack of heat

When complained in Dec and stayed then waived Dec lack of heat

This TN waived all the way until April; court recognizes that it was cold again in April which gives the TN another opportunity

to notify the LL and vacate (breach April 9, TN moves out April 30)

o That is not a reasonable time because the TN did not introduce any evidence that his vacating of the premises was timely

Should have introduced evidence about taking all the equipment would take a few weeks…but since did not introduce any evidence he lost (TN has BOP)

o TN give notice to LL? TN made complaints frequently so LL knew about the heat problem

If stay on too long = waived; if stay on too little time = then did not give LL enough time to fix the problem

Element TNs sometimes forget NOTICE; must prove they gave the LL information; if any chance of a lawsuit then document the notice, if do not then have a credibility of witness issue

Net Realty Holding Trust v. Nelson Someone else making the TN’s life a living hell besides the LL

o TN moves out within a month, was operating a mini-golf course and some people stole equipment and disturbed the daily operations

LL is not liable for unauthorized acts of 3rd party strangers for constructive evictiono LL would be liable for acts by someone with paramount title, LL would be

liable for his own agents (just not strangers) LL can be deemed to breach CQE based on actions of other TNs?

o General rule = NOo EXCEPTION: 2 part test that was met – Blackett v. Olanoff

LL knew or should have known when entered lease with offending TN that new TN could offend prior TNs

LL had right to control the problem In this case the LL was responsible because the LL knew or should have

known that a cocktail lounge would interrupt the other TNs and the LL had the ability to control the disruption

IMPLIED WARRANTY OF HABITABILITY Exception to conveyance theory of independent covenants

o Continuing exception to conveyance theory – TN paying of rent contingent upon LL giving total/partial rent

Because of problems of constructive eviction, courts have moved on toward Implied Warranty of Habitability (IWH)

o If cannot leave, or worried that cannot fill BOP on constructive eviction then use IWH

IWH only applies to residential (Davidow IWH applies to commercial leases in rare exception)

Have to use constructive eviction because of caveat emptor (conveyance theory so covenants independent) for commercial leases

Commercial leases still use caveat emptor; old law for residential and commercialo Caveat emptor – traditional view is that the TN takes the premises “as is”

Comes from theory that lease is a conveyance of land (non-freehold estate); TN gets the benefits and burdens of the land

LL under no obligation to warrant premises are fit for anything! Originally, no implied warranties on the lease

Logical consequence of pleading an estate in land Also assumed that owner could fix any problem that arose because mostly

cared about the land, all structures were incidental to the land Also notion of inspection by the TN 4 exceptions:

Short-term leased of furnished dwellingo Not time to inspect, if furnished then not really using it for

the land only using for the structure Lease of buildings under construction

o Could not inspect if still building LL fraudulently conceals the problem or condition

o Even if did inspect the LL is hiding it so will not see problem

LL still responsible for the common areas because he maintains control of them

Can always expressly warrant in the contract that the LL is responsible for certain things

o The process used for commercial leases – must negotiate every warranty for the lease because commercial leases operate off of caveat emptor

One outlier – below in Davidow

Wade v. Jobe – IWH explains elements and all possible remedies TN could not claim constructive eviction because she did not leave

o TN resort was caveat emptor but then through change of law decided to implement IWH

IWH: implied covenant that leased premises are habitableo Policies to change from caveat emptor to IWH because – LL has better

bargaining power (caveat emptor assumes equal bargaining, but cannot negotiate warranties into a lease, usually), residential leases are for the structure not the land, LL has better knowledge of the property, modern TNs lack ability to repair or inspect, follows trends of protecting consumers, in harmony with housing/building codes (existence of building code does not mean need to allow private remedy, but the courts find it as consistent with the building codes to provide a private remedy; government, in order to enforce housing code, needs

the TNs [who are already on the premises] eyes and ears to see when housing codes violated [Private Attorney General Theory – shorthand for saying that sometimes the government needs the help of private citizens to assist us in letting us know breaches])

o Elements: Premises not in a habitable condition

Must prove cannot live in premises, more than just a substantial breach as in constructive eviction; must be more than just discomfort

Ways to prove:o Substantial violations of the housing codeo Health and safety of TN threatened

LL must have notice of the problem If at outset, TN can show notice met by LL should have known

o If problem already existed before the TN got possession then TN can prove second element MUCH EASIER

o TN might be able to show notice through fines or code violations by the city or inspectors

If after TN had possession, LL must have actual notice from TN ( the TN now has possession so no reason for the LL to should have known)

LL must have a reasonable time after notice to repair the problemo Once establish breach of IWH, remedies?

TN can continue paying rent (stay in) and then make an affirmative claim for breach of IWH in order to get some of rent payment back

T can also withholding rent (incentive for LL to repair problems) When withhold rent, majority of jurisdictions require rent to go

into escrow (rent goes into an escrow while withholding – proves TN has the money and it is actually there)

o Full rent goes into escrow each month; at final order the court decides TN should only pay half for breaching months

Protects TN, he gets half back and still incentive for LL to repair because LL still not getting the money

Protects LL, if he gets any of the money in the escrow it is safe and readily available

Statute (depends on jurisdiction) – allows TN to repair and deduct from rent; VERY RARE

Risks: TN doing lousy repair, improving things that do not need repair, repair costing more than what the LL would pay for it

o Damages How much is the TN relieved from paying because of the

uninhabitable conditions of the property? TN can always get:

Rent reduction

Special damages – dependent on facts and circumstances of the case

o Ex. leaking pipe falls on head and go to ER can maybe get those costs

o Ex. business operated out of leased property provable damages of lost profis

3 ways: $$ = (Fair rental value of premises as warranted – fair rental

value in unrepaired condition)o Broad damages formula

LL only leases premises as if they are up to housing code (because not allowed to lease if fails housing code)

First number – what would the premises be worth at minimum housing code conditions, habitable

If premises were up to code (hypothetical) then what is the FMV of premises

o Get number through expert Second number is the same analysis for expert in

narrow system What is it really worth in current

dilapidated condition? o May consider contract as evidence of the value of

premises as warrantedo Ex. expert testifies that $500 if up to code; $300 in

current bad condition; rent for TN is $300 $300 – $200 (set off difference) = $100 what TN

has to pay for rent $$ = (Contract rent – the fair rental value of the premises in

the unrepaired condition)o Narrow damages formula

Contract rent found on lease; expert will have to show FMV of value of premises in current dilapidated condition

o First formula the courts used o Ex. $500 rent in lease, expert said apartment worth $300 in

current bad condition TN can offset rent by $200

o Because society does not want people living in terrible conditions; if rent a defective apartment (dangerous conditions) then still want TN to get damages even if FMV is only $300 and TN already paying $300

established the broad theory ***Percentage diminution***

o More discretion to the trier of facts; after a while a body of case law to determine how much in what conditions; after a body of case law then no real outlier judge and if so then appealable

Facts and circumstances different; case-by-case analysis

Practical advantage of no need for experts so reduces the costs of litigation

o Reduction in rent is based on percentage reduction for the defect(s)

Ex. rat – 10%, no A/C in FL 40%o Easier than the above two, but the risk is the discretion

allotted to the judges; case law should help to alleviate the difference in judges

Hypo: rats, sewage, broken windows, leaks; jurisdiction has adopted the IWH, rep TNo Must show: premises not in habitable condition – substantial violations of

housing code or health and safety of TN impeded; LL must have notice; LL must have reasonable time after notice to repair the problem

IWH not waivable in majority of jurisdictions; very few jurisdiction allow IWH to be waived

o Problem – in every single formed lease, LL could include IWH waived clauseo Policy – unequal bargaining power would handicap the TN

IWH – check elements, remedies options, damages

April 14, 2009David v. Inwood North Professional Group

Covenant independent under conveyance theory – CL Covenants dependent under contemporary analysis of law (land rented for purposes

of the structure, not because the land will be worked, used, grown, etc.)

Applying IWH (known as implied warranty of suitability) to commercial leaseso Very minority, minority and even this jurisdiction has pulled away from this

ruling; it is possible but very unlikelyo Policies to justify IWS:

Same as in residential from above: no stronger contractual bargaining power, inability to inspect, lack of knowledge or skill to repair

o Court implies IWS in the lease – almost the only case that has implied the IWS in a commercial lease

o WAYS TO AVOID – express state who should make repairs in the lease; if contract around the repair issue then the contractual provisions control

CAN WAIVE IWS but TN agreeing to make repairs expressly in the lease

Always expressly warrant and make a breach of a particular express warranty dependent on TN obligation to pay rent (make it painful for the LL)

IWH should apply to residential leases because society and public policy wants people to live in habitable conditions

o Reasons – unequal bargaining, TN do not have time or ability to inspect or repair

This court uses these reasons to apply IWH to commercial leases

Another option for Davidow is constructive eviction – even though not argued or pleadedo Problem happens first month and stays = waives that month but if it happens

again then TN has another chance

April 16, 2009ASSIGNMENT AND SUBLEASE

Adds a new player – instead of just LL and TN, a 3rd party via an assignment or sublease

o Assignee or subleaseeo Question: is assignee or subleasee bound by original promises of a

covenanting party? Lease = contract + conveyance of land MUST DETERMINE: relationship between the original TN and the 3rd party is

characterized as assignee or subleasee

Dayenian v. Am. National Bank and Trust of Chicago Lambert (not Dayenian is the original TN) got Notice of Right of First Refusal

o People actual on the premises got the notice of conversion to condoso TN got option to buy unit before it is offered to someone elseo Statutes: if subTN then must notify the real TN and if assignee then only

need to notice the assignee This case trying to determine which role Lambert filled: assignee or

subTN Ex. 1/1/09 – 12/31/09; TN gives possession to 3rd party from 6/1/09

until the lease is overo assignment

Ways to determine whether assignee or subTN:o Look at language (not dispositive)o Assingment: when TN transfers right to possession for duration of term left

on lease (TN no longer has the right to come back in) Deemed to have received entire estate as original TN and is bound by

the covenants of the original TNo Sublease: when TN transfers anything less than entire remaining duration on

the lease (TN has the right to come back in, even if for one day)

Ex. lease term 1/1/09 – 12/31/09, TN going home for the summer and allows someone to come in from June – Aug but TN gets it back

sublease

Regardless of whether original TN subleases or assigns, he is still liable – surety to guarantee performance

Privty: (USE BOTH THEORIES IF NECESSARY)o Of contract

between LL and original TN, in writing or oral (if less than a year, if oral but too long then SOF defense)

between TN and AE between TN and Subleasee

o Conveyance of an estate in land (non-freehold) – Privity of Estate Between LL and original TN until TN no longer has right to possess

both parties have an interest in the same parcel of lando LL has ownershipo TN has possessory interest

Between LL and AE (once A obtains right to possession) Property burdened by obligation to pay rent; TN has the burden; in

order for that obligation to transfer the successor to the original TN must obtain same estate in land in the time dimension (same as covenants)

o NO PRIVITY BETWEEN LL AND Subleasee For burden to run to successor, the successor must have received the

ENTIRE dimension – does not happen with subleasee

Hypo: TN assigns remainder of lease term to 3rd party because no time left = assignment; LL entered into k with original TN, TN assigns; LL not getting rent anymore because AE not paying rent

o LL does not have privity of contracto LL does have privity of estate allows LL to sue AE and original TN because he

is in privity of contract, surety to guarantee performance LL can only get one satisfaction but LL can sue either

Same as above but sublease for 6 monthso LL must sue the original TN because no privity of contract or estate with

subleaseeo TN can sue subleasee because in privity of contract with each other

To avoid all the LL can add provision that if not paid the lease terminates then everyone out of luck because LL terminates head lease

LL better of with AE because can sue directly; with subleasee then has to sue TN to get indirect compensation

If lease silent regarding ability of TN to assign or sublease?o Look to next case

Rowe v. Great Atlantic Pacific Tea Co. Generally courts promote free alienability, highest and best use of the land

o POLICY: in favor of land being used General Rule: absent a restrictive clause, TN MAY assign or sublease for policy

reasons aboveo Narrow exception: when goes against public policy and imply restriction on

assignments and subleases when LL specifies negotiations with a specific TN because of TN’s talents, abilities and if rent collected via TN’s profits; TN expertise needed for LL to get rent

Ex. Nassau Hotel v. Barnett – no base rent, only rent came from how well the TN performed; came from profits

1st lease – nothing regarding whether TN can assign 2nd lease – extensive negotiations but still no provision saying whether TN can assign After 2 years, TN wants to assign lease to Southland Corp.

o LL opposes and wants an implied restrictive covenant against assignmentso IMPLIED restrictions on assignments almost never found

Courts hate it because of public policy on free alienability In this case, there was a percentage clause but since there was a base rent and percentage

clause does not kick in until makes $1.5 million so LL and TN did not rely on the percentage clause for payment

Hypo: can an implied restriction on assignablility ever occur?o Yes, but limited to situation like Nassauo Usually, the general rule is No

April 20, 2009 Restrictions on Assignments and Subleases Clause

o LL are now not going to hope some courts imply a restrictive covenant because the courts hate it

o So LL now write it (expressed) into the lease document Ex. “no assignments or subleases without the LL’s prior expressed

written consent” NO ASSIGNMENT CLAUSE This means: LL could withhold consent for a good reason,

arbitrary reason and no reason but not if it would violate __________

BUT NOW = DIFFERENT INTERPRETATIONo Takes us to next case

Julian v. Christopher – silent consent clause Silent consent clauses: silent in way in which consent can be given or withheld is not

addressed; no standard for consent includedo Clause “no assignments or subleases without LL’s prior express written

consent”

o When no standard included: modern trend LL can withhold with if he has a commercially reasonable objection

(reason) Ex. if new TN cannot reach same percentage for percentage clause Ex. if new TN cannot pay rent (credit report) Ex. financial instability or irresponsibility of proposed transferee Ex. unsuitability of intended use by transferee

o If building set for retail sales and new TN wants to put in a health clinic

Julian court ONLY deals with silent consent clauseo Still silent if expressed, the silent part is when/how consent

If silent on when/how then interpret consent as allowed if commercially reasonable

If representing a LL:o Make express written clause regarding assignmentso Then dictate how and when the LL can withhold consent

Revised restriction on assignments and subleases clauseo Start with “ no assignments or subleases without LL’s prior express written

consent” Representing a TN: jurisdiction has not adopted the modern trend

“consent must be allowed for commercially reasonable reasons” Wants to be able to assign

Representing LL “consent may be withheld for any reason, consent can be

arbitrarily denied” Only wants TN to be able to assign in certain situations

Issue of what is commercially reasonable?o My or client’s commercially reasonable may not be the judge’s commercially

reasonable

Hypo: have all for LL as above (consent can be arbitrarily denied); TN violates covenant and goes ahead and assigns, is assignment still valid?

o Yes, under next caseo Assignment is still valid but the LL can sue for breach of covenant and gets

damages So LL wants to add “violation of assignment or sublease clause allow LL,

at his option, to terminate this lease and evict” if TN assigns without consent then LL can evict

First Am. National Bank of Nashville v. Chicken System of Am. – **EXAM** May 1968 – LL and TN enter 15 year lease with restriction on assignment clause April 1969 – TN business purchased by PSI, PSI obtains possession

o LL finds out transfer of business via the insurance company

o LL would have been willing to accept PSI if the guarantor’s of Chicken System would continue to guarantee the premises

November 1970 – PSI vacates and ceases rent September 1972 – Sir Pizza obtains possessory rights from PSI

o Sir Pizza is paying less than PSI and Chickens, LL wants the difference between Sir Pizza’s rent and PSI/Chicken lease

LL could have sued Chicken because still in privity of k Chicken bankrupt

LL could sue PSI because still in privity of k this suit AE is in privity of estate at the time of possession up until the

right of possession is changed LL could sue Sir Pizza not going to because they are paying

Look at privity of k or privity of estate notes

TERMINATION OF LANDLORD/TENANT RELATIONSHIP Ways to terminate:

o On-time – when the lease is supposed to, notice if needed Ex. tenancy for a fixed term – requires no notice Ex. tenancy at will under CL Ex. periodic tenancy upon proper notice

o Holdover – TN stays too long Tenancy at sufferance

Fixed term and stays Noticed to leave a stays

LL options when TN stays too long: Evict Force TN to pay for another full year Ex. Clairton Corp v. Geo-Con

o Abandonment – TN leaves too soono Once Retaliatory Eviction dissipateso Illegal activities

Clairton Corp v. Geo-Con – aberration, TN got LUCKY TN stays for extra 7 months on a 2 year lease

o If a multi-year lease then the LL has options: LL can force TN on for another full year LL can evict

o Problem this TN considered himself a month-to-month TN When LL confronted with holdover:

o Evicto Consent

Expressed or implied to create a new tenancy for a further term LL can get TN to stay for duration of lease:

Multi-year LL gets one year One year LL gets 6 months Month-to-month LL gets one month

In the evidence of showing contrary intent, tenancy converts to a tenancy from year to year

o Keeping TN on for another full term is based on presumed intent of the parties

Court says: under these facts since TN and LL in constant negotiations the general rule was not the presumed intent of the parties

Court goes against general rule

Hypo: LL and TN had year to year periodic tenancy; no consent for the first two years because LL has not received notice from TN to leave; 2 months into year 4 the TN leaves?

o LL have every right to rely on the fact the TN was staying on and LL due full year’s rent

o TN must give noticeo Ordinarily if TN stays on then due for full term, do not want to dup LL’s

What if tenancy for fixed term?o LL still in belief the TN wants to stay on

Edwards v. Habib – retaliatory eviction (bad reason) = MAJORITY Case when TN raises his rights because of code violations

o TN on month-to-month leaseo After TN ratted LL on code violations, LL gave her 30 day notice

Normally allowed but in this case not so LL does not have to lease to a particular person if he does not want to If LL wants to evict TN in middle of lease term without justification then TN can

sue for damageso FMV – stipulated lease term + special damages

Retaliatory eviction = retaliatory non-renewalo LL stuck with TN for duration of lease but does not want to renewo Issue: can a LL choose not to renew?

Yes, for an arbitrary reason or for no reason at all or a good reason No, for a retaliatory reason or illegal reason

If going to have housing codes enforced at all the TNs cannot be scared to call the inspector policy reason behind retaliatory eviction

o Court has to balance two statutes: Housing codes (wants residences habitable) Summary eviction statutes (prevents self-help, want LL to know the

court process works)o At end of day court say no more retaliatory non-renewal after balancing

these two statutes

LL CANNOT CHOSE NOT TO RENEW FOR BAD REASONS (retaliatory reasons)

o Retaliatory eviction is a protective measure to ensure TN are not intimidated from asserting their rights; want TNs to call housing inspectors to inspect their health and safety

o If retaliatory eviction proved the LL MUST renew until the retaliatory (illegal) purpose has dissipated

TN rights (right to not be evicted for retaliatory reasons) continue until illegal purpose dissipated because the TN is not entitle to stay in the leased unit forever

o ONCE that point the LL can then invoke any legitimate reason, or no reason at all or arbitrary reason

o BUT LL cannot chose to evict during the tenancy of a lease contract except because of those reasons stipulated in the lease

Hypo: lease said LL can evict if TN calls housing inspectorso Invalid because violates of public policy

Presumption of 6 months – if LL evicts within 6 months of an incident then presumed retaliatory

o LL can rebut o As a result, LL wait 6 months + 1 day to evict because after 6 months the

presumption reversed for LL

April 21, 2009

Phillips Neighborhood Housing Trust v. Brown – illegal activity Leased signed by both parties – mother and adult son

o Lease has expressed covenant that says no illegal activities Normally under conveyance theory since the covenants are

independent the LL could sue for damages but not evict BUT this LL tied this covenant, if broken, to termination of the lease

Good move by the LL to tie the covenant and termination together because that is his objective

Clearly illegal activity – druggie with drugs in the apartment and guilty party is a signatory on the lease

Problem: not just the adult son getting kicked out, the mom and two young daughters being kicked out too

Hypo: not conceded that there is illegal activity, what is alleged illegal activity (LL only suspects TN doing drugs); what if not signatory, young daughter alleged to be doing illegal activity on the premises but not in the apartment?

o Public policy only want people kicked out of apartment when… Some ordinances are fairly broad

Ex. LL could evict upon suspected activity. Too loosey goosey??

This case was easy because cut and dry, but when more of a gray area need to be very careful; keep in mind the continuum of guilt

These lease provisions necessary because: (be careful with these clauses)o Protection of other TNso Decrease insurance o LL trying to establish complex as a healthy, safe place for people to live

What is only suspected illegal activity – how draft lease then?

ABANDONMENT AND SURRENDER LL options when TN abandons

o Conveyance theory LL has 3 options: (lease = estate in land so TN has benefits and burdens of the land for the lease term)

Do nothing and collect rent when due Retake possession for account of TN

LL gets difference between old rent and new rent Mitigate in good faith Why would LL mitigate if he is not in this type of jurisdiction?

o LL wants new TN in because TN abandoned since going bankrupt

o If commercial retail then looks “dark” and could ruin the entire mall

If time for other TNs to renew, the TNs will be in a better marketing position

o Might want to put someone in there to prevent vandalism or deterioration of the property

Treat lease as terminated “accept the surrender” either express or by operation of law

LL lets TN off the hook Normally expressed so get it in writing so LL cannot change

his mind in the future!o LL may let TN off the hook?

Rental income in the neighborhood may be going up so LL could charge new TN higher rent

Also when there is a long waiting list because the place will not stay vacant for too many days

o Masilla Valley Mall v. Crown Industries o Contract theory jurisdiction

Can mitigate (as above) Treat lease as terminated “accept the surrender” (as above)

FL is part contract theory and part conveyance theory o Has a statute: § 83.595

If TN abandoned: Treat lease as terminated “accept to surrender” Mitigation Do nothing and make TN pay damages

Mesilla Valley Mall Co. v. Crown Industries Crown Industries operating as Lemon Tree in the Mall LL = mall TN = Lemon Tree Jan 1989 – TN vacates April 1989 – LL sues Museum stepped into place of Lemon Tree until the mall could get a new TN in on Feb 1 Do not know if acceleration clause in this case

If new TN for benefit of LLo Accept of surrender and old TN off the hooko Possession of 3rd party does not terminate privity of contract between LL and TN

unless acceptance of surrender If new TN for benefit of TN

CANNOT let in non-profits in for free…

Acceleration clause – LL can make all rent due in the future due now, occurs when there is a default

o LL does not have to wait for a default and then sueo If already a couple months default then TN will have to pay rent for all time left

on lease Public policy so that LL does not have to wait to collect until the end of

the lease term when the TN may only have two cents left o Note pg. 130

If LL does have an acceleration clause and exercises that option then LL cannot also demand possession of the premises; TN has the right to possession for the duration of the lease term

Any releasing of premises after an acceleration is for the benefit of the TN because the TN has paid for the right of possession for the duration of the rent

TN could now put someone in there and get rent to substitute what he already had to pay

o Helps TN make up loss because TN had to pay a lump sum earlier to LL

If LL releases the property then all monies received go to the TN

LL or TN could someone in the possession but regardless the TN getting the money from the new TN

o If LL says in clause that he gets to keep money from new TN after acceleration clause collection then viewed as a penalty clause which the courts do not like

Frenchtown Square Partnership v. Lemstone, Inc. Issue: is Lemstone liable for undue rent to Frenchtown for abandoning the property?

o Lemstone left about 6 months before the lease is us In Contract theory jurisdiction: 2 options

o So options to mitigate or surrendero So looks like modern trend is to pull away from the conveyance theory

April 23, 2009

REVIEW Exam

o Answer questions in order askedo Types of questions:

MC Essay Directed Essay Questions

MC with explanation – quality explanation, why the right choice is correct and why the others are not

o Explain why yours is right and explain away the others

Example of directed essay question: Question #1 from last TWEN quizo Example of directed essay questiono DIRECTIONS: record answer on scantron and circle the most correct answer and

include an explanation of your choice and why the other choices are not correct

Use a good faith estimate for the amount of space

o D – because could waive IWS by TN agreeing to make repairs expressly in the lease

Waiver especially compelling Negotiations, equal bargaining power Language clear Caveat emptor if no IWS but this does not apply

o A – not correct because IWH only applies to residentialo B – not constructive eviction, go through elements

Not expressed covenant that LL breached TN did not leave

o C – no IWH so do not use the damages formulao E – IWS can still be waived; can say, as explained there was a waiver here

o 1st write reasoning for choice If not sure between 2 choices, then go ahead and say why you know the

others are wrong so that get those points Sometimes the explanations are short and other times longer, depending

on issue trying to thwarto Within question, no need to repeat

o Different questions then reexamine and explain

Gift/Deeds Hypo: O tell A he wants to give A to Blackacre; O executes a deed naming A as GE of

Blackacre and O signs the deedo Deed contains: GE and GR name, words of conveyance (I grant and convey

blackacre), proper legal description of land, GR signature and all requisite state requirements

o In a different question, might be missing one of these – THIS is all the requirements for a valid DEED

o Gift – need intent, delivery and acceptance Of land – I, D, A of a valid deed

Have intent from questiono So looking for proof of delivery and acceptance

Acceptance – got the presumption Delivery ISSUE

Presumption of delivery of deed when:o Deed with GE

o Deed notarizedo Deed recorded

Gifts and recording Need to know jurisdiction and make sure I can recognize a statute in case jurisdiction not

appliedo Check the FL statute

Hypo: O owns land in FSA; O transfers to A as a gift; A records; O to B, B is a bona-fide purchaser for valuable consideration; analyze in all three jurisdictions

o Race: CL – A wins

Explain this A wins because CL stands

o Notice: CL – A wins A wins because B had notice at the time of conveyance to B

B had constructive record notice – need to do analysis through recording system just in case there is a wild deed

o Deemed to know that which has been duly recordedo B should look at GR, GE index

Backward in GE, forward in GRo Race-notice

CL – A wins A wins because B has notice as explained above

o A wins at CL and because no one other than A won under the recording statute so default to CL

A CANNOT win under any of jurisdictions, but A does not need to because won at CL

ONLY way for DE to block subsequent purchasers is to record DE CANNOT meet terms of recording statute BUT CAN block

others in the future; when DE records no one else can meet their recording statute

Hypo: O to A, A does not record; O to B by gift, B had no noticeo CL – A wins because first in time with I, D, A of a valid deedo Race

B cannot win because did not record nor is he a subsequent purchasero Notice

B not a subsequent purchaser but was without noticeo Race-notice

B not a subsequent purchaser and did not record even though without notice

o NO WAY DONEE CAN MEET THE REQUIREMENTS OF A RECORDING STATUTE

o Purchaser – only need to give substantial, valuable consideration Not equal but NOT nominal NEEDED IN ALL 3 RECORDING JURISDICTIONS

Hypo: same as above but B recordso B still cannot win because not a subsequent purchaser which included in all

jurisdictions

Hypo: O starts out with land in FSA; O transfers to A as a purchaser for valuable consideration; O to B who is without actual or injury notice and is a purchaser; then A records

o CL – A wins because first in time with intent, delivery and acceptance of a valid deed

Applies to all 3o Race

CL – A wins B does not wins because he did not record first Defaults to CL which stands, A wins

o Notice CL – A wins B wins because without all 3 kinds of notice and a subsequent purchaser

for valuable consideration No actual No inquiry No constructive

o Must analyze that B did not have constructive record notice because had no notice at the time of conveyance to B

CL does not prevailo Race-notice

CL – A wins B does not win because did not record first even though without notice Default to CL winner which is A

Hypo: O to A for valuable consideration, A does NOT record but does move in; O to B for valuable consideration and O did not tell B of prior conveyance, B records immediately

o CL – A wins because …o Race

CL, A wins B wins because subsequent purchaser who recorded first

o Notice CL, A wins B does not win because he should have had inquiry notice even though a

subsequent purchaser Society wants owners to inspect so B deemed to be on inquiry

because someone is living on the propertyo Possession of property more than enough to give inquiry

notice

Default to CLo Race-notice

CL, A wins B does not win because even though subsequent purchaser and recorded

first BUT ON INQUIRY NOTICE so had notice Default to CL which stands

Horizontal privity Real covenant – one that runs with the land; can get damages

o MUST MEET ELEMENT OF PRIVITY Horizontal and vertical

o Our goal ISSUE: can someone who is not an original party be burdened by or

benefit from the original covenant which they are not privity Equitable servitude –

o Losing abilities to get damages because equitable Neither – only contract between the original two parties

Horizontal privityo Looking for privity from original covenanting parties

2 ways: (only need one of these two) GR/GE instantaneous

o Looking for a conveyance of land from one of the original covenanting party to another and at that very moment they enter into a covenant

Obtain land and covenant at the same timeo At the time of the covenant one of the original

covenanting parties obtained his or her land from the other party

Not occurring when two neighbors agree, even if valuable consideration to bind property

No mutual relationship Two neighbors, one did not get land from the

other Mutual – in addition to covenant their share another

relationship in regard to the parcel of land affected by the covenant (mutual relationship in regard to land)

o Mortgages o LL/TNo Co-TNo Easements

Shamrock Hilton v. Caranas o Expressed bailment and BE misdelivers item strict liability

Only applies in express bailments This case was implied bailment

o If something else happens to bailed goods other than misdelivery Turns on negligence depends on who’s benefit

Mutual = ordinary o Hotel liable for misdelivery of the purse for negligence

Presumption of negligence on BE’s part Presumption in statute or CL Often no evidence of what happens to the goods so BR gets the

presumption against BEo Helps the person who has damaged goods

o Contents of bailed item Container Case Only liable for actual knowledge of contents and reasonably

foreseeable contents what BE would reasonably expect to find in the bailed good

If not reasonably foreseeable and no actual knowledge then not liable for those goods

o Policy – burden on BE because BE is most likely to know what happened to them, best position to have the evidence

Gifts – need intent, delivery and acceptance regardless Hypo: Year one: DR had complete ownership of the painting; Year two: DR makes gift of

the remainder but keeps for himself the right to possess during his lifetime; year three: DR changes mind and wants to give the painting to his gf

o Max the gf can get is LE pur autre vie o Delivery “makes a gift” which is a presumption of delivery

If just says “DR says, then must analyze” GO BACK AND LOOK IN NOTES

Hypo: year one DR has FSA in land; year two gives deed to A “to O for life then to A and his hiers”; year three O wants to give land to gf

o O can only give LE pur autre vie Hypo: same as original painting but in year three writes a properly executed will leaving

everything to his gf; year four DR dieso Gf does not get anything in regard to the paintingo Will – can only transfer property one has at death

Hypo: year one, DR has ownership of painting; year two meets gf and leaves everything in will to her; year three DR makes a gift of remainder of painting to son but keeps right to possess the painting during his lifetime

o Writing will has nothing to deal with analysis WILL ONLY MATTERS AT DEATH

o When DR dies he will have nothing left of painting because gave away all LE

Inter vivos – any gift made during lifetime Causa mortis – not a gift at death (that is an invalid will); gift made in apprehension

of deatho Revocable when: DR expressly revokes, DE dies before DR, DR recover from

peril/death DR wants gift back – clear case

If DR heirs because survived disease and hit by truck – then just want recovery from peril/death

o Need present donative intent for both Look at words

o Need delivery to divest DR of dominion and control Actual delivery

Other two types: symbolic, constructive – means of access (ex. keys)

o Need acceptance Yes, nephew took watch and put it on plus there is a presumption for

gifts of value

Concurrent interests TBE – cannot devise or transfer at death, one spouse dies the living one simply owns all

interesto Can only convey during life if agreeo Creditors – CANNOT GET TBE

JT – can convey, cannot deviseo Can sell with or without consent

TIC – can convey and devise

Why can creditors of JT and TIC reach the debt of co-TNs interest?o Creditor can reach anything that a debtor alone can voluntarily alienate

JT and TIC can voluntarily sell interest Creditor cannot reach TBE?

o Cannot voluntarily alienate solo – NEED CONSENT OF OTHER SPOUSE

Expenses o Upkeep

Co-TN paying more than his share for upkeep can bring an contribution action

Ex. real property taxes and mortgage payments o Capital improvements

Co-TN who makes capital improvements does not get contribution from other TNs if non-authorized improvements

Can only get the $$ through partition action Capital improvement made by one co-TN

No right of contribution from non-authorizing co-TNs (did not want the capital improvement) in an action for contribution

Can partitiono In kind (physical)

o By sale

Improver gets fractional share + difference between value of whole with and without improvement

TBE divorced presumption of TIC (majority) but can be JT if expressly stated (grantor intent theory)

o GR theory – likely intent of GRo FL – there is a statute that TBE because TIC upon dissolution of marriage

Question 2o Bank and twin would not have title at the same time so hold as TIC so no longer

right of survivorship that Bank could get

Adverse possession Claim of right as 2nd factor

o If no deed at all, then best can do is claim of righto Get whatever part APer is actually possessingo Exclusive means – no other person including the true owner is using it

Owner can block by moving in o FL claim of right

Pay taxes Color of title as 2nd factor

o Defective deed of some kind Not witnesses in jurisdiction that requires it No signatures

o Title extends to the boundaries in the document Can get more or less

o FL – color of title, have to record defective deed FL is 7 years for both claim of right and color of title

o Must pay taxes in claim of right Subjective intent – IRRELEVENT for claim of right Color of Title – must have good faith, must think that really had something

o Must think that title was valido FL also cares about claimants mental state

2 other jurisdictions???

Why would one purchaser insist that his GR record his instrument instead of just recording GE’s own instrument?

o To avoid wild deeds! Go backward in GE index and forward in GR index to see if subsequent recordings

Constructive record notice – whether notice could be found in a search – GE/GR diagram

o GE – asking whether person that gave it had title to give to himo GR – to see what the various people who had title did

Clean? Wild deed?

GR given someone an easement, a covenant, given someone a mortgage?

If asked who has better title – have to go chronologically and through GE/GR diagram

Do not purchase from someone whose deed does not show up in the chain of title – or – make that GR record so that blocks all other problems

Wild deed is record outside the chain of title and this is fair because otherwise the GR/GE system would fail

“A conveyance of real property or an interest in real property or a mortgage or deed of trust is void as to a creditor or to a subsequent purchaser for a valuable consideration without notice unless the instrument has been acknowledged, sworn to, or proved and filed for record as required by law”

o NOTICE This instrument is void against a subsequent purchaser without notice

o Overlook annoying “unless clause” Unless deed recorded then someone else will win

o What is required of the subsequent purchaser to beat me? CA is race-notice

Lost grant – prescriptive easements o Other theory for prescriptive easements is adverse use

Lost grant:o Minority view for adverse useo Elements:

Used Claim of right Open and notorious Continuous Required time Acquiescence

Adverse use:o Majorityo Elements

Used Claim of right Open and notorious Continuous Required time Adverse to interests of owner of servient estates

SOFo Adverse possession – NO SOF, the highest and best policy trumps SOF; despite

owners intent, giving property to someone who did not buy ito Prescriptive easements

Lost grant Fiction that a grant was lost

SOF – had been a writing as one point But does not really comply at all either

Adverse use DOES NOT COMPLY with SOF

o Policy for highest and best use, prevent stale claims, should have stopped trespass earlier

Horizontal and vertical privity o Horizontal

Mutual, or Instantaneous

o Vertical CTR successor – must get exactly what GR had CTE successor – just an estate in land

Leasehold non-freehold estate in land

Easement created by implicationo Strict necessity need a deed into which the easement is implied; MUST

HAVE SEVERANCE THAT CREATED NEED Severance that creates the strict need Land in common ownership Severed into 2+ parcels

o If deed to lot failed to mention easement then the courts say the parties must have intended an easement in light of the elements; once the court implies the words into the deed then the easement complies with SOF

o Quasi-necessity Single owner burdened one parcel for the benefit of another

If one person owned both benefited and burdened parcel then MERGES and terminates easement

Benefit is reasonably necessary for benefited parcel Reasonably necessary is less than strict necessity

Burden was apparent at the time of severance Single owner transferred one parcel and retained the other

Future Interestso O will devise by will Blackacre as follows: “Blackacre to my daughter Amanda

and her heirs when she gets married, if Amanda does not marry, to my son Bob and his heirs”

o This jurisdiction – rule of destructibility of contingent remainders modified, rule in Shelley’s case, rule of merger and rule against perpetuities all apply in CL forms

WOP – to A, to B Classify interests – A has future interest (when she gets married)

See if she has remainder or EI so apply remainder definitiono Not a remainder because not a prior non-fee simple

o A has EIo Now springing or shifting

A has springing EI What estate does A have – FSA from “and

their heirs” words of limitations o A has springing EI in FSA

B has future interesto Either remainder or EIo FI – because does not begin upon O’s deatho Not a prior non-fee simpleo B has shifting EI

What is his estate? B has shifting EI in FSA (and his heirs)

o DCR No CR so does not matter

o Rule in Shelley’s case Does not matter because none of that applies GE children is not the same as heirs! GE grandchildren is not the same as heirs!

o Doctrine of Worthier Title Does not apply either

o Merger Does not apply

o RAP Any vulnerable interests? – yes because these are EI Does each separately in the order in which they appear A need to make this statement true

It is impossible for A to get married more than 21 years after A’s death

o TRUE – does not violate RAP Only keep testing if did not make statement true

EI vests at the same time it becomes possessory CR can vest before it becomes possessory

o To A for life, then if B graduates, to B Vests when he graduates but has to wait for A to die

B need to make statement true Test here when B’s EI would vest/become possessory It is impossible for A to die without getting married more than 21

years after A’s death.o TRUE – B’s interest does not violate the rule

REVIEW THE CASE OF MERGER WITH REAL ESTATE CONTRACT AND DEED