Ben Sabol Professor Schenkel Fall 2011

PROPERTY OUTLINEPROPERTY IN A FREE AND DEMOCRATIC SOCIETY I. Trespass: Resolving Conflicts Between the Right to Exclude and the Right of Access Property owners have obligations and bundle of rights i.e. right to exclude A. Trespass unprivileged, intentional intrusion on property possessed by another (12) Unprivileged unless: (1) Done with the consent of the owner (2) Justified by necessity to prevent more serious harm to persons or property (3) Encouraged by public policy (including access to graves on private property) Intentional is defined as by volition of the trespasser (EVEN IF BY MISTAKE) Private Property Examples: State v. Shack - Trespass does not include a situation where representatives of recognized charitable groups enter private land in order to provide government aid to those workers who need it. Property rights are not absolute (not even the right to exclude). (Public Policy) Desnick v. ABC - When a landowner permits entry into his property to another based on the others misrepresentation or a misleading omission, will that constitute a trespass? Holding: No. To enter the land of another without consent is a trespass. An investigative news program used undercover cameras to tape a doctor consulting with wired patients (but didn't interfere with ownership or possession of land). (Consent) B. Right of Reasonable Access to Property Open to the Public 1. Common Law right to exclude - the traditional common law rule said that innkeepers and common carriers had a duty to serve public without discrimination, unless they have a good reason to exclude an individual, but that everyone else can exclude at will (19). 2. In New Jersey, Uston expanded the exception of the right to exclude to all businesses open to the public (minority rule) Uston v. Resorts International Hotel, INC. NJ (lost in [Vegas] Nevada) - A man had a strategy for playing blackjack that helped him win. A hotel attempts to exclude him from the blackjack tables. A person has a right of reasonable access to property open to the public as long as the person does not threaten the security of the premises and its occupants and his actions do not disrupt the regular and essential operations of the premises. C. Trespass Remedies 1. Damages attempt to measure in financial terms the extent of harm a plaintiff has suffered because of a defendant's actions. Damages are distinguishable from costs, which are expenses incurred as a result of bringing a lawsuit and which the court may order the losing party to pay. a. Nominal Damages consist of a small sum awarded to a plaintiff who has suffered no substantial loss or injury but nevertheless experienced an invasion of rights b . Compensatory Damages- (actual damages) intended to restore what the plaintiff has lost as a result of a defendant's wrongful conduct c. Punitive Damages may be awarded for particular types of wrongful conduct, a penalty for egregious, wrongful conduct d. Treble Damages where provided by statute, judge may multiply the amount of monetary damages awarded by three to the plaintiff Glavin v. Eckman - In order to enhance the Eckmans' view of the ocean they hired a

landscaping company to take down trees on their neighbors yard without permission. The court awarded the amount it would take to restore the trees and then treble damages where applied for an award of $90,000.00. Compensatory damages and treble damages are an appropriate remedy and are not excessive for a claim of trespass and destruction of property. Jacque v. SteenBurg Homes INC. - In order to deliver a mobile home, SteenBerg Homes went across the Jacques property without permission. Issue: Whether punitive damages may be awarded in an intentional trespass case when the Plaintiff is (otherwise) only entitled to nominal damages because there is no actual harm to their property. Held. Yes. Punitive damages are appropriate in intentional trespass cases even if there are no actual damages. 2. Incomplete Defense of Necessity If trespasser damages other's property in circumstances of necessity, the trespasser is holds a duty to compensate the owner for the damage. i.e. Ploof v. Putnam II. Free Speech Rights of Access to Private Property A. U.S. Constitution first amendment prohibits Congress from making any law that abridges the freedom of speech Hague v. Committee for Industrial Organization court defined parks as a kind of public forum to which individuals have a constitutional right of access for free speech purposes. - states and municipalities may regulate such speech with time, place, and manner restrictions, but cannot regulate based on content Marsh v. Alabama Marsh, a Jehovahs Witness, was arrested for trespassing after attempting to distribute religious literature in an entirely, private-owned Alabama town. (no public parks) The Court extended the Hague ruling by granting Jehovah's Witness the right to distribute their religious literature on a sidewalk. Lloyd Corp. v. Tanner individuals handing out leaflets in a shopping center protesting the military draft and the Vietnam War were held liable for trespass when the shopping center adopted a policy against allowing such leafleting. B. State constitutions almost all states interpret their state constitutional free speech guarantees in a manner similar to the federal constitution, thus granting shopping center owners the power to exclude people handing out leaflets or others seeking to engage in similar speech activities states may grant more expansive rights than those guaranteed by federal law either by interpretation of their state constitutions or through state statutes. i.e. California and NJ. C. Statutory labor organizing access rights the National Labor Relations Act (NLRA), a federal statute governing employment relations, prohibits employers from engaging in certain enumerated unfair labor practices that interfere with the rights of employees to form unions and engage in collective bargaining and other types of concerted activities for mutual aid or protection, including striking and picketing. III. Beach Access and the Public Trust A. Public Trust Doctrine The Public Trust Doctrine acknowledges that the ownership, dominion and sovereignty over land flowed by tidal waters, which extend to the mean high water mark is vested in the State in trust for the people. The Public's right to use the tidal lands and water encompasses navigation, fishing, and recreational uses, including bathing, swimming, and other shore

activities. - mean average high water mark - where the tide ebbs and flows Avon - Public trust doctrine applies to municipally owned dry sand beach immediately landward of the high water mark Matthews v. Bay Head Improvement Association the public has a right to gain access through and to use the dry sand area not owned by a municipality but by a quasi-public body. (not applicable to exclusively private property) There was no public beach in the Borough of Bay Head, and so the association's membership was made open to the public B. Public Rights in Privately Owned Dry Sand Beaches the public may have a right to cross privately owned dry sand beaches in order to gain access to the foreshore, when there is no other reasonable access to the sea/wet sand C. Dedication, Prescription, and Custom aside from public trust, courts have granted rights of access to beaches for the general public through dedication, prescription, custom a. dedication involves a gift of real property from a private owner to the public at large, requires an offer by the owner and acceptance by the public b. prescription when public has used property possessed by another for a particular purpose for a long time (measured by the relevant state statute of limitations), the public can acquire such rights permanently even if they never had them originally or if they had previously been reduced to private ownership. The public can acquire a prescriptive easement to continue using the property for this purpose. c. custom doctrine that the Oregon Supreme Court implemented which held longwithstanding, uninterrupted, peaceable, reasonable, uniform use of the beachfront by the public for recreational purposes conferred continuing rights of access IV. The Right to be Somewhere and the Problem of Homelessness Is it necessary for people to own property in order for their human rights to be met? Pottinger v. City of Miami established safe zones for homeless who had no place to perform their daily living activities (were being kicked out of public places and arrested for sleeping, bathing, and eating where they weren't allowed) THE FRAMEWORK OF PROPERTY RELATIONS IN A DEMOCRACY I. Democratic Property A. The Anti-Feudal Principle De Peyster v. Michael Can a condition exist in property ownership transfer that allows for a percentage of property or production of that property to be owned to someone other than the purchaser of the land/property? No, because it holds onto the old feudal system that unequally divides/separates the rights of people. Fee simple cannot co-exist with alienation. such a system (i.e. feudalism) contrasts with the democractic system that was designed to ensure American's equal right to property to alienate something means here means to transfer over something (i.e. property) fee simple - the legal form of ownership that confers the greatest power known to U.S. Law rent obligations associated with a fee simple are not considered vestiges of feudalism p.79 II. Ownership in a Society of Free and Equal Persons A. Abolition of Slavery and Racial Segregation Post Civil War, the U.S. recognized that a democracy cannot allow people to be treated as

property. (13th Amendment) Brown v. Board of Education prohibits separate but equal public educational Civil Rights Act private owners who offer their services to the public are not entitled to refuse (or discriminate) based on race due to civil rights statutes Fair Housing Act of 1968 privately created property relations are regulated by law to ensure that they allow access to the market system without regard to race B. Decline of Company Towns Should companies be allowed to have exclusive ownership of a town's property? Company towns have not generally been outlawed, but they have been found illegal. People ex. Rel. Moloney v. Pullman's Palace-Car Co. - Pullman's Palace-Car Company built a company town where the streets, alleys, school houses, business houses, sewerage system, hotels, churches, theaters, waterworks, market places, dwellings, and tenements were its exclusive property. Attorney General of the State of Illinois sued. Illinois Supreme Court favored the Attorney General and ordered the company be sold off. American custom has generally followed the instincts of the Illinois Supreme Court in requiring both a democratic form of government for towns and dispersal of ownership property C. Equal Rights for Women - Married Women's Property Acts established the right of married women to own property and to enter into binding contracts - today, the law prohibits property arrangements that confer powers on husbands to control their wive's property and protects women from sexual harassment both from their employers and coworkers and from their landlords D. Abolition of Alien Land Laws the supreme court held that Alien Land Law unconstitutionally denied equal rights of property ownership in Oyama v. California although the court has declared that to deny property ownership to those based on race is NOT justifiable, the court still preserves the right to deny ownership to non-citizens Overturned Korematsu v. United States military necessity did not warrant the exclusion and detention of ethnic Japanese Consumer Protection and the Subprime Mortgage Crisis In Commonwealth v. Fremont Investment & Loan, the state's (MASS) consumer protection law ch. 93(A) guarantees security against unfair or deceptive acts or practices in the conduct of any trade or commerce. Brief Fact Summary. Fremont is a mortgage lender. The Attorney General, under his authority given in Consumer Protection Law 93a, filed for an injunction against Fremont that precluded foreclosures on the mortgages until a full investigation was conducted. Fremont appealed the Judges decision to issue the injunction. Synopsis of Rule of Law. Mortgage loans with characteristics that make it almost certain the borrower will default are subprime loans. Giving subprime loans are considered unfair practices in violation of Consumer Protection Act and in violation of Massachusetts Predatory Home Loan Practices Act. An Injunction against foreclosing on these loans serves public interest. COMPETING CLAIMS TO PROPERTY Conquest what the colonists understood as a transfer of property and sovereignty was often understood by Indians as a set of temporary accommodations of land use.

Johnson v. M'Intosh (1823) Right of occupancy recognized but extinguished by conquest Discovery gave an exclusive right to extinguish the Indian title of occupancy, either by purchase or conquest; and gave also a right to such a degree of sovereignty Conquest gives a title which the Courts of the conqueror cannot deny, whatever the private and speculative opinions of individuals may be, respecting the original justice of the claim which has been successfully asserted. Freed Slaves After the Civil War when the slaves were freed, the question arose where they would live and how. (Formerly treated as property till 13th amendment effected the largest uncompensated taking of property in U.S. history. Pardoned former confederate masters enabled to take back their land while freed slaves were told to help themselves. Some did. Others were tied back to the land of their masters. GIFTS and INHERITANCE A. Definition: a present transfer of property from one person to another without payment (or other consideration) The law of gifts requires: (1) intent to transfer title (2) delivery of the property (3) acceptance by the donee Inter vivos gifts are transfers from one living person to another testamentary gifts are those effectuated at death through a valid will or inheritance. After death, property is transferred either by a written will or, in the absence of a will, by the terms of state law, called the intestacy statute (Laws in every state grant surviving spouses some portion of the property owned by the deceased spouse (called the decedent) at death, but the law in the U.S. allows parents to completely disinherit their children, leaving them nothing. B. Not Revocable: A gift is generally not revocable once made; that is, the donor can take back the gift. POSSESSION A. Wild Animals: Once a person has gained possession of a wild animal, he has rights in that animal superior to those of the rest of the world. Pierson v. Post One man chased and pursued a fox, but another man killed it and carried it away. A dispute as to who had possession of the fox arose. ISSUE: Does a person obtain possession of a wild animal by chasing it? NO. Mere pursuit of an animal does not give one a legal right to it. B. Finders of lost articles: The finder of lost property holds it in trust for the benefit of the true owner, as a bailee. But the finder has rights superior to those of everyone except the true owner. EXAMPLE: Barry Bonds' record breaking HR ball hit Popov's hand but before he could posess it (possession requires both physical control over the item and an intent to control it or exclude others from it.) and was grabbed by Hayashi. Popov sued for conversion. Had Popov had actual possession first, then the ball would have been his and Hayashi's legal rights to it would have been superior to everyone but Popov. Instead, judge ruled 50/50. HYPO: P finds logs floating in bay. He takes them and moors them with rope. The logs break loose, and are found by D, who takes them and refuses to return them to P. P may recover the value of the logs from D. P's possession is the equivalent of ownership as against anyone but the true owner.

a. Presumption of ownership Supreme court has noted if a person be found in possession . . . it is prima facie evidence of his ownership AND that if there be no evidence to the contrary, proof of possession, at least under color of right, is sufficient proof of title. HYPO: Plaintiff Wilcox found 444 Civil War documents and allowed them to be microfilmed for state archives. He tried to sell them and was sued by State of SC. State failed to produce the necessary evidence to overrule the presumption of ownership of the papers. Wilcox v. Stroup b. Lost, mislaid, and abandoned property DID OWNER INTEND TO ABANDON? lost property owner accidentally misplaced it. Finder does not obtain title mislaid owner intentionally left it somewhere- and then forgets where she put it abandoned owner forms an intent to relinquish all rights in the property (lost or mislaid property may subsequently become abandoned.) Finder has the right to keep property that has been abandoned since original owner relinquished her rights. HYPO: Self-proclaimed amateur archaeologist alleged he obtained permission to excavate another's land in hopes of finding an ancient village of the Tunica Indians. He found 150 burial sites and attempted to sell items to Harvard University. Landowner will win if finder trespassed. The permission he received was not actually owner of the land AND he lost suit for transfer of ownership. Charrier v. Bell c. Finders Statutes Many states have these and they usually get rid of the distinction btw lost, mislaid, and abandoned property. Generally require finder to report finding to police and generally award finder property if no owner claims within reasonable period. C. Oil and Gas a. law of capture stipulates that the owner of a tract of land acquires title to the oil or gas which he produces from wells on his land, though part of the oil may have migrated from adjoining lands. Elliff v. Texon Drilling Co. - A well blew out, neighboring gas and oil escaped underground. Texon (respondents) were drilling on neighboring property and large quantities of gas and oil drained from under Petitioner's land and escaped into the air. Issue: Will a party be liable for negligent waste or destruction of another's oil and gas when that waste and destruction occurred after the minerals had been drained from beneath the person's land? YES. In Texas, landowner is regarded as having absolute title to the oil and gas beneath his land. b. Negligently wasting natural resources deprives a person of his property rights in those resources, including the right to profit from them. So, the waster should compensate the injured party for loss. D. Water Rights a. Drainage: Courts are split as to the rights of an owner to drain surface water from his property onto the property of others. In general, courts seem to be moving to a rule that an owner may do this only if his conduct is reasonable under all the circumstances.Diffuse Surface Water rain, runoff, melting snow, etc. GET HYPO HERE! b. Streams and Lakes: States are sharply split as to when and how a landowner may make use of waterfront streams and lakes that abut his property. Rights to watercourses (lakes, streams, etc.) are generally determined by one of two systems: 1 Riparian Doctrine (states along and to E. of Mississippi R. 2 Prior Appropriation Doctrine (other states) 1. Common law approach: In all parts of the country except for about 17 western states, courts

apply the common-law riparian rights theory. Under this theory, no advantage is gained by priority of use. Instead, each riparian owner is entitled to only so much of the water as he can put to beneficial use upon his land, with due regard for the equal rights of the other riparian owners, and without regard to how long the owner has been using the water. *What are Riparian Lots? Majority Rule: all tracts of land held by a common owner are included if they are contiguous and any of them abut the water. Minority Rule: only the smallest tract ever owned that borders the water at that spot. HYPO: A and B each own property that abuts a river. A is upstream from B. Under the common-law riparian rights theory, A may make reasonable use of water for instance, to irrigate his crops but reasonableness will be determined by reference to B's reasonable needs as well as A's. The fact that A has been using the river for a particular use longer than B, or vice versa, is irrelevant. i. Riparian only: Only riparian owners are entitled to make use of the water, under this doctrine. That is, the owner's land must abut the stream or lake, at least in part. So one whose land is not contiguous with the water may not carry the water by pipe or ditch to his property. *Riparian Doctrine owners of the land bordering the lake or stream (the riparian lots) have rights to the water. They can make reasonable use of the water for the benefit of the riparian parcel only. Offsite use or exportation is not permitted. 2. Prior appropriation doctrine: Seventeen arid states (all west of the Mississippi) adopt a completely different theory, called prior appropriation doctrine. In many of these states (e.g. California), an owner must apply for a permit to use the water; if the application is accepted by the government, the user's priority dates from the time of the application. Rights are determined by actual use. If a person has been using water in certain amounts for a certain purpose, that use determines the users rights. Although this doctrine prevails in many states, it is administered much more complexly by state and local agencies created for this purpose. i. Riparian ownership not required: Under the prior appropriation system, water may be appropriated by a non-riparian owner. c. Ground Water: In most American states, an owner may make only reasonable use of ground water drawn from under his property. For instance, he may generally use as much of the water as he wishes for applications on the parcel which sits on top of the pool, but he may not divert the water to other properties which he may own. Correlative Rights Doctrine Each owner of the surface over the aquifer has the right to withdraw an equitable portion of the water, which depends upon how much of the aquifer underlies that land. Reasonable Use Doctrine This is probably the majority rule in the U.S. The surface owner is entitled to extract water for reasonable use. This usually means that so long as the use remains onsite (on the surface tract) it is permitted. Export is not permitted. Absolute ownership doctrine (also called free use doctrine): This used to be the general rule but is now the minority rule as it is only followed in about a dozen states. Under this doctrine a surface owner can extract all the water the owner wants to extract even for offsite use or export. Transfer: Relativity of Title Real Property Presumption of heir's possession Although A may prevail over B, O would prevail in a dispute with A. A's title is not absolute but relative; it may be good as against one person but not against another who has a better claim. Question

is, which of the competing claimants has the better claim? HYPO: Even though a person may not have title to property she (A) possesses, she can still successfully regain possession of the land when another person (B) forces himself onto the land. First possessor (other than O) was granted land in Tapscott v. Lessee of Cobbs, where A was a person who took possession after O and before B. B claimed possession as an ancestor of O. B would win case if (1) A took possession away from O (the ancestor), or (2) B could show proof of title. BUT, the law also presumes that the heir has possession of the property. Tapscott (A) must rebut this presumption by offering proof that the heirs were not in possession. (He couldn't and lost as a result). Personal Property A thief has no right to transfer title to a third party BONA FIDE PURCHASERS A. Bona fide purchasers The problem of the bona fide purchaser arises when one who in wrongful possession of goods (e.g., a theif, defrauder, finder, etc.) sells them to one who buys for value and without knowledge that the seller has no title. 1. General Rule: The general rule is that a seller cannot convey better title than that which he holds (but subject to exceptions summarized below). HYPO: If someone does not own Radio City Music Hall but attempts to sell it to you by granting a deed, you get exactly what the grantor had nothing. a. Stolen goods: The general rule is always applied when the seller (or his predecessor in title) has stolen the property. HYPO: X steals a car from P and sells it to Y, who ultimately sells it for fair value to D, who does not know it is stolen. P may recover the car from D, because a possessor of stolen goods can never convey good title, even to a b.f.p. 2. Exceptions: But where the goods are acquired from the original owner not by outright theft, but by less blatant forms of dishonesty and/or crime, the b.f.p. may be protected. a. Voidable title: First, a b.f.p. who takes from one who has a voidable title (as opposed to the void title that a thief has) will be protected. Thus if B obtains goods from A by fraud (e.g., B pays with counterfeit money or a bad check), B gets a voidable title, and if he immediately re-sells the goods to C, a b.f.p., A cannot get them back from C. ADVERSE POSESSION the magical transformation of trespassers into owners I. Generally A. Function: All states have statutes of limitation that eventually bar the owner of property from suing to recover possession from one who has wrongfully entered the property. (Suits to recover property are called ejectment suits.) Once the limitations period has passed, the wrongful possessor effectively gets title to the land. This title is said to have been gained by adverse possession. 1. Clears title: The doctrine of adverse possession also furnishes the additional benefit of clearing titles to land. HYPO: A state has a 20-year statute of limitations on ejectment actions. X claims that he holds title to Blackacre, and wants to sell it to Y. Y will only have to check the land records going back 20 years plus perhaps some additional period to cover the possibility that the running of the statute of limitations might have been tolled for some reason in order to check X's claim of ownership. The fact that, say, 100 years ago X's alleged predecessor in title took the property by wrongfully entering on it, is irrelevant, since the right of the rightful possessor to regain property has long since been barred by the statute of limitations.

B. Requirements generally: To obtain title by adverse possession, the possessor must satisfy five main requirements: (1) he must have actually possess the property, and this possession must (2) be open, notorious, and visible; (3) the possession must be hostile, i.e., without the owner's consent; (4) the possession must be exclusive; (5) the possession must be continuous; a. Statute - the possession must be for at least the length of the statutory period (perhaps longer if the owner was under a disability.) II. OPEN, NOTORIOUS AND VISIBLE A. Open, notorious, and visible requirement: The adverse possessor's use of the land must be open, notorious, and visible. Usually, this means that the possessor's use of the property must be similar to that which a typical owner of similar property would make. HYPO: Blackacre is undeveloped wild land suitable only for hunting and fishing. If D builds a small hunting cabin on the land, and enters several times per year to hunt and fish, this will meet the open, notorious, and visible requirement if a typical owner of similar property would make such limited use. But it would not qualify if a typical owner would use the property more extensively, build a much bigger dwelling, etc. Nome 2000 v. Fagerstrom - The quality and quantity of acts required for adverse possession depend on the character of the land, so a person claiming adverse possession does not have to make significant improvements or occupy the land year-round in order to make a claim. The land must be used during the statutory period in the way an average owner of similar property would use it. When the land in question is rural, a lesser exercise of dominion and control may be reasonable. III. HOSTILE POSSESSION A. Hostile Possession: The adverse possession must be hostile. This merely means that possession must be without the owner's consent. EXAMPLE: T occupies Blackacre under a lease from O, the record owner. T's possession of the premises is not hostile since it is with O's consent, so even if T resides for more than the statutory period, he does not become the owner by adverse possession. 1. A presumption exists that the possession of another's property is nonpermissive where there the owner has not obviously affirmed or denied permission. B. Bad faith possessor: A minority of courts impose the additional requirement that the possessor must have a bona fide belief that he has title to the property. Thus in these minority states, a mere squatter never gets title. C. Boundary disputes: Adverse possession is most frequently used to resolve mistakes about the location of boundary lines. Most courts hold that one who possesses an adjoining landowner's land, under the mistaken belief that he has only possessed up to the boundary of his own land, meets the requirement of hostile possession and can become an owner by adverse possession. HYPO: O is the true owner of Blackacre, and A is the true owner of the adjoining parcel, Whiteacre. When A moves onto Whiteacre, he mistakenly believes that his land goes all the way up to a creek, but the creek is in fact 15 yards into Blackacre. Accordingly, A builds a fence up to the creek, and uses the enclosed portion of Blackacre for farming. At the end of the statutory period, most courts would hold that A becomes the owner of the 15-yard portion by adverse possession. IV. EXCLUSIVE POSSESSION A. This requirement simply means that possession must not be shared with the owner. V. CONTINUITY OF POSSESSION A. Continuity of possession: The adverse possession must be continuous throughout the statutory period, as a general rule. Generally, when problems arise regarding whether adverse possession was

continuous, one must look to the normal use of the land. (i.e. is possession typically a seasonal one) 1. Interruption by owner: Thus if the owner re-enters the property in order to regain possession, this will be an interruption of the adverse possession. When this happens, the adverse possessor must start his occupancy from scratch. B. Tacking: Possession by two adverse possessors, one after the other, may be tacked if the two are in privity with each other. That is, their periods of ownership can be added together for purposes of meeting the statutory period. HYPO: A, who owns Whiteacre, adversely possesses a small strip of the adjacent Blackacre, due to confusion about boundaries. A adversely possesses that piece of Blackacre for 15 years; he then sells Whiteacre to P, who holds for another seven years (and who adversely possesses the same strip). A's 15 years of possession can be tacked to P's seven years, so that P meets a 20-year limitations period. (In most courts, this is true whether A's deed to P recited the false boundary lines that A and B believe to be correct, or recited the true boundary lines that do not include part of Blackacre.) 1. No Privity: But if the two successive adverse possessors are not in privity, i.e., do not have same continuity of interest, then tacking will not be allowed. HYPO: A adversely possesses Blackacre for 15 years. He then abandons the property. B then enters for another seven years. B cannot tack his holding period to A's holding period, since they had no continuity of interest. But if A had purported to give B his interest by oral gift, deed, bequest, or inheritance, then B could tack. Privity is not present when the first possessor simply abandons the land and then another possessor takes over. VI. MISCELLANEOUS A. Length of time: The length of the holding period for adverse possession varies from state to state. It is usually 15 years or longer. 1. Disabilities: If the true owner of property is under a disability, in nearly all states he is given extra time within which to bring an ejectment action. HYPO: Statutes often hold that the running of the limitations period is suspended until the true owner becomes 21. Usually, the person is given an additional time, say 10 years, to sue after he reaches 21. 2. Tacking on owner's side: There is effectively tacking on the owner's as well as the possessor's side. HYPO: O is the owner of Blackacre in 1950, when A enters and begins to adversely possess. In 1960, O conveys to X. Under a 21-year statute, A will gain adverse possession in 1971, even though he has not yet held for 21 years against either O or X separately. B. Rights of adverse possessor: Once the statutory period expires, the adverse possessor effectively gets title. However, the possessor usually cannot record title (since he has no deed). But he can apply for a judicial determination of adverse possession, and if he gets it, that determination can be recorded as if it were a deed. 1. Need to inspect: Since a title gained by adverse possession usually cannot be recorded, a buyer of property cannot be sure that the record owner still owns it (and that the record owner can therefore convey a good deed) unless the buyer physically inspects the property. 2. Scope of propety obtained: Normally, the possessor acquires title only to the portion of property actually occupied. a. Constructive adverse possession: But there is one important exception: by the doctrine of constructive adverse possession, one who enters property under color of title (i.e., a written instrument that is defective for some reason) will gain title to the entire area described in the instrument, even if he actually possesses only a portion.

i. When one holds property under color of title (i.e., a void deed . . . a deed not signed by all owners), he will obtain title to the whole area described in the deed under adverse possession, as long as extrinsic evidence can aid in giving an exact location of the land. Romero v. Garcia ii. Also, some states lower the number of years required to obtain adverse possession when the owner has color of title or has paid property taxes. C. Conflicts: If there is a conflict between two persons whose interests are solely possessory, the general rule is that the first possessor has priority over the subsequent one. D. Quiet Title: Adverse possession claims may be brought by the adverse possessor herself in a lawsuit against the owner to quiet title. This kind of claim asks the court to grant a declaratory judgement that the adverse possessor has become the owner of the disputed property through adverse possession. Adverse Possession claims may also arise as defenses to trespass or ejectment claims by record owners. PRESCRIPTIVE EASEMENTS Adverse USE An easement is a privilege to use the land of another and a prescriptive easement can exist when a person uses another's land for more than the statute of limitations period governing ejectment actions, he gains an easement by prescription. A. An easement by prescription creates a possessory interest in land, similar to adverse possession. The difference is that the interest claimed under adverse possession is in fee; a prescriptive easement leads to a non-fee interest. Prescriptive easements must show adverse use instead of adverse possession. Most courts drop the exclusivity requirement. i. The extent of an easement created by prescription is fixed by the use through which it was created. Restatement of Property ii. Use determines the general outlines rather than the minute details of the interest. B. When a prescriptive easement is claimed, the extent of the use must be proved not with absolute precision, but only as to the general outlines consistent with the pattern of use throughout the prescriptive period. EXAMPLE: Community Feed Store, Inc. v. Northeastern Culvert Corp. - defendant claimed that any use by plaintiff was with the fee owner's permission (that previous owners acquiesced) BUT since land was private property, presumption existed that property use was nonpermissive. C. No NEGATIVE prescriptive easements Plaintiff claimed that because it had enjoyed unobstructed access to light and air for a long time, it had acquired an easement by prescription. Court said this will NOT create an easement. (Fontainebleau Hotel v. Forty-Five Twenty-Five, Inc.) OTHER INFORMAL WAYS TO TRANSFER TITLE TO REAL PROPERTY A. Removal of Encroaching Structure: Relative Hardship 1. Relative Hardship Doctrine If innocent (result of mistake), minimal harm, small interference of true owner's property interests, and substantial removal costs court often refuse to grant injunction ordering removal of the structure. Instead: i. pay damages to compensate for decrease in market value of owner's land OR ii. order a forced sale of the property from the landowner to the owner of the encroaching structure with damages equal to the value of the land taken and possibly a premium to compensate for the involuntary nature of the transfer in ownership. iii. If a state has a betterment statute, then the owner may choose either of these options. 2. Removal of encroaching structure ordinarily ordered (without regard to relative hardship) when builder knowingly built on neighboring property.

B. Unjust Enrichment versus Forced Sale 1. Mistaken Unjust Enrichment of Real Property - Under principle of unjust enrichment if an improver makes improvements upon land that is not his own by a bona fide mistake, the owner of the land must either i. compensate the improver for the improvements ii. or sell the land to the improver both being at fair market values. 2. Bad Faith If one deliberately builds on someone else's property will not be granted a right to compensation and will ordinarily be required to remove the encroaching structure if the land owner so wishes. Adverse Possession of Personal Property A. Discovery Rule In an action for replevin (a legal remedy for a person to recover goods unlawfully withheld from his or her possession), plaintiff's cause of action accrues only after the cause of action is discovered by due diligence in the pursuit of the wrongfully detained property. i. Did the plaintiff use due diligence to recover wrongfully taken property? EXAMPLE: Plaintiff seeks replevin of paintings thirty years after their alleged theft. The Court notes that the acquisition of property by adverse possession is based on the expiration of a statute of limitations and that the adverse possession must be hostile, actual, visible, exclusive, and continuous. But the court adopts a new rule discovery rule In the adverse possession defense the burden of proof is on the defendant to establish the elements of the defense; in the discovery rule of limitations the burden of proof is on the plaintiff (one seeking replevin as rightful owner) to establish the right of ownership and the timely filing of the suit. O'Keefe v. Synder (NJ) B. Demand Rule a cause of action for replevin against the good faith purchaser of a stolen chattel accrues when the true owner makes demand for return of the chattel and the person in possession of the chattel refuses to return it. Until demand is made and refused, possession of the stolen property by the good faith purchaser (b.f.p.) for value is not considered wrongful. i. Did the plaintiff make a demand for property and was he/she refused? EXAMPLE: Artwork was stolen from Guggenheim Museum. A b.f.p. argued that replevin was barred under 3 year statute of limitations (presumably for adverse possession). Court implemented demand rule. Solomon R. Guggenheim Foundation NUISANCE: Resolving Conflicts Between Free Use and Quiet Enjoyment A. Nuisance a substantial and unreasonable interference with the use or enjoyment of land. (i.e. activities that are offensive, physically, to the senses and which by such offensiveness makes life uncomfortable such as noise, odor, smoke, dust, or even flies. Nuisance doctrine provides remedies for conduct that causes unreasonable harm to the use and enjoyment of land. PROF. SHENKEL's NUISANCE TEST: (1) Is the harm substantial? (2) Unreasonable? Balance social good against harm and if a. it causes more social good than harm b. more harm than social good 1. Substantial interference: The interference with the plaintiff's use and enjoyment must be substantial. Thus if P's damage consists of his being inconvenienced or subjected to unpleasant smells, noises, etc., this will be substantial damage only if a person of normal sensitivity would be seriously bothered. Nontrespassory interferences when the use of one's own property harms the property interests of one's neighbors. i.e. excavation undermining lateral support of

neighboring land, flooding, pollution, noise, odors, criminal activity, and access to light and air. 2. Intentions irrelevant: The existence of a nuisance is not affected by the intention of its creator not to injure anyone. HYPO: Computer of next door business was making TV store's displays blurry. Computer store made improvements and help display but still problem existed. 3. Entitlements - Courts resolve land use conflicts in four basic doctrines (DIFFERENT FROM REMEDIES): a. PRIVILEGE defendant is at liberty to engage in an activity on her property even though it harms the property interests of the plaintiff. HYPO: Plaintiff failed to state a claim upon which relief can be granted. b. STRICT LIABILITY plaintiff has an absolute right not to suffer a particular sort of harm caused by the defendant's activity. If P can prove that D engaged in the prohibited activity and that it caused damage to P's property interests, P is entitled to damages to compensate for the harm and possibly and injunction ordering the D refrain from engaging in the wrongful activity. Some courts impose if considered ultra hazardous activities. c. REASONABLENESS A middle position that authorizes the defendant to engage in the harmful activity if it is deemed to be reasonable but not if the conduct and/or the harm caused by it is deemed unreasonable. Often a moral or policy judgement and sometimes a cost benefit analysis too. Even if D's conduct is intentional, P will not win in nuisance unless he shows that D's actions wer unreasonable. In determining what is reasonable, the nature of the neighborhood is likely to be quite significant. HYPO: A steel mill located in an otherwise completely residential area is much more likely to be found unreasonable interference than is a steel mill in the middle of an industrial park. d. PRIOR USE (PRIOR APPROPRIATION) Sometimes legal entitlements are awarded to the person who established the first use. Prior appropriation grants a right to commit the harmful activity to the person who first established her use. Right to farm statutes grant farmers the right to operate without liability for nuisance if their farms were established before surrounding homes were built. Prescription or adverse possession grants the right only after the use has continued for a substantial period of time (determined by statute). 4. Rights considerations: Conflict between D's interest in free use of her land and P's interest in being secure from harm. Is the nuisance the type or amount of harm one should not have to bear for the good of society? 1. spite fences many states grant injunction to tear down when fences are built for sole purpose of blocking neighbor's light and air. 2. Nuisance per se: i.e. criminal activity like a property routinely used for illegal drug manufacture or sale. 3. right thing in a wrong place - like a pig in a parlor instead of a barnyard. 4. unusually sensitive - even serious harms may be privileged if P is unusually sensitive. i.e. no remedy for plaintiff who had extremely rare allergy to fumes) 5. comes to nuisance - prior appropriation (see below) . . . hand in hand with right to farm statutes 5. Social welfare considerations: When evaluating the gravity of the harm, the courts are to look at: 1. the extent and

2. character of the harm involved, 3. social value that law attaches to the type of use or enjoyment invaded, 4. suitability of the particular use or enjoyment invaded to the character of the locality; and 5. the burden on the person harmed of avoiding the harm. When evaluating the utility of conduct, the courts are to look at: 1. the social value that the law attaches to the primary purpose of the conduct 2. the suitability of the conduct to the character of the locality 3. the impracticability of preventing or avoiding the invasion 6. Remedies: P has a chance at either or both of the following remedies: a. Damages: If the harm has already occurred, P can recover compensatory damages. Most commonly, the measure of damages are the cost of restoration the cost of repairing the damage and bringing the property back to its prior condition AND the diminution in the market value of the property. b. Injunction: If P can show that damages would not be a sufficient remedy, he may be entitled to an injunction against continuation of the nuisance. To get an injunction, P must show that the harm to him actually outweighs the social utility (unreasonable) of D's conduct. HYPO: D operates a large cement plant employing hundreds of people. The Ps sue D for nuisance because of dirt, smoke, and vibrations, which interfere with their nearby property. A court might not issue an injunction even though nuisance occurred, because the harm to the Ps may be found not to outweigh the jobcreation and other economic utility of D's plant. But in that event, D would still have to pay money damages for the harm, no matter how socially useful D's conduct. c. Dismissal of Complaint Plaintiff is entitled no remedy if: (1) the harm to plaintiff is not substantial; or (2) Defendant's conduct causes more social good than harm (reasonable use), and it is not unfair to impose the costs of D's activity on P; or (3) the imposition of damages would put D out of business and avoiding this result (because of the social value of D's conduct) is more important than preventing harm to P. d. Purchased injunction: P is entitled to a purchased injunction if D's conduct causes more harm than good; BUT it is fair to impose the cost of shutting down D's activity on P. (i.e., when plaintiff comes to the nuisance) B. Public Nuisances A public nuisance is an unreasonable interference with a right common to the general public. The traditional example is obstruction of public highways. 1. Trend Traditionally, public nuisances could be enjoined only by public officials. Today, trend is to allow those affected (any member of the public) to bring suit. HYPO: has been used to challenge liquor stores that sell liquor to minors and motels that are used for prostitution. 2. Statutes may authorize individuals to bring claims to abate public nuisances. Water Rights Diffuse Surface Water: Flooding Problems Diffuse surface water includes drainage water from rain, melting snow, and springs that runs over the

surface of the earth . . . but does not amount to a stream A. Drainage: Courts are split as to the rights of an owner to drain surface water from his property onto the property of others. In general, courts seem to be moving to a rule that an owner may do this only if his conduct is reasonable under all circumstances (Reasonable use rule). HYPO: A man changes the natural drainage pattern of a stream. Water from his property passes through a stream into anothers and erodes the others property. Under the reasonable use doctrine, an owner may make only reasonable changes in the natural drainage pattern of surface water. When a person makes significant changes to the drainage flow of his property, and this change damages anothers property, is the person liable for the damage caused? YES. When the drainage flow has been increased so substantially as to cause damage to plaintiffs property, the defendant should pay the plaintiff an amount that will allow plaintiff to install a protection on his land. The defendant is engaged in a social good by building the development, but he should pay when his new drainage system causes harm to someone else. Unreasonable for damages not to be paid. A. Reasonable Use Rule (MAJORITY RULE) court must determine whether defendant's conduct caused unreasonable interference with neighbor's use of their land. (involves balancing social benefit derived from development of D's property, the availability of cost-effective means to avoid or mitigate harm, and the gravity of the harm to plaintiff's property) Substantial harm is likely to be found unreasonable, even if the value of the defendant's conduct far outweighs the value of the plaintiff's property. Separate question exists whether plaintiff will be limited to damages for harm or injunction. B. Common Enemy Rule allows property owners the absolute freedom to develop their property without liability for any resulting damage to neighbors caused by increased runoff of surface water. C. Civil Law Rule (Natural Flow Rule) grants the injured property owner absolute security against injury from flooding caused by a neighboring property owner's development of her property. Owners are allowed to discharge water through natural drainage pathways, but any development that alters the amount, force of flow, or direction of the natural drainage will result in liability for any resulting harm to neighboring land. Civil Law/Natural Flow Rule is a strict liability solution to land use conflict. SUPPORT EASEMENTS Lateral and Subjacent Support: LATERAL SUPPORT SUBJACENT SUPPORT

A. Generally: Every landowner is entitled to have his land receive the necessary physical support from adjacent and underlying soil. The right to support from adjoining soil is called the right of lateral support. The right to support from underneath the surface is known as the right to subjacent support. B. Lateral Support: The right to lateral support is absolute. That is, once support has been withdrawn and injury occurs, the responsible person is strictly liable even if he used utmost care in his operation. To win strict liability claim failure to maintain structure so that land would subside in its natural state (without buildings or improvements). To win due to negligence structures must be supported and support is negligently withdrawn (i.e. the withdrawal or unnecessary excavation of support without necessary precautions.) EXAMPLE: A and B are adjoining landowners. A very carefully constructs a large excavation extending almost to the edge of his property. This causes B's soil to run into A's excavation, impairing the surface of B's property. B's right to lateral support has been violated, and he may recover for damages. STRICT LIABILITY EXAMPLE: A couple discovered their house was slipping down a hill and believed the slipping was caused by an adjacent landowners deteriorated retaining wall. Does an adjoining landowner have liability when his lateral support of land is sufficient to hold his neighbors land in its natural state, but insufficient to support the additional weight of a building? NO. In the absence of negligence, the adjoining landowner will not be held liable. 1. Building: But the absolute right to lateral support exists only with respect to land in its natural state (i.e. defendant has a strict obligation to keep the retaining wall in good repair to avoid loss of lateral support for the plaintiff's land. This obligation runs with the land.) If the owner has constructed a building, and the soil under the building subsides in part due to the adjacent owner's acts, but also in part because of the weight of the building itself, the adjacent owner is not liable unless he has been negligent. (If P's building is damaged, and he can show that his land would have been damaged even with no building on it, courts are split as to whether D is liable in the absence of negligence.) Affirmative Easement a right to do something on someone else's property. vs. Negative Easement a right to prevent someone else from using her own property in a certain way. Servitude Modern terminology confines the term easement to affirmative easements and uses the word servitude to describe restrictions on land use, including negative easements. *(353) Modern Approach adopted by Noone imposes damages for harm both to the land and to the building if the harm to the building was caused by removal of lateral support for the land. C. Subjacent Support: The right to subjacent support arises only where sub-surface rights (i.e., mineral rights) are severed from the surface rights. When such a severance has taken place, the owner of the surface interest has the right not to have the surface subside or otherwise be damaged by the carrying out the mining. 1. Structures existing: The surface owner has the absolute right to support, not only of the unimproved land, but also support of all structures existing on the date when the severance took place. EXAMPLE: The defendant extracted a large amount of water from wells. Nearby landowners claimed these withdrawals caused their land to subside. Are landowners who withdraw underground water from wells located on their own land liable for damages that result on anothers land? No. Under common law rule of absolute ownership, as long as there is no malice, a landowner can remove so much water that anothers land

falls, floods or erodes. Friendswood Light and Air Rights Rejection of Nuisance Doctrine: No Easement for Light and Air A. Generally, a landowner has no right to sunlight. For instance, an owner almost never acquires an easement of light and air by implication or even by necessity. So if A and B are adjoining owners, B can, without liability, build in such a way that A's sunlight is blocked. (But if A uses sunlight as a source of solar energy, it is possible that he might have a claim perhaps in nuisance against B for blocking that energy source by a tall building.) 1. Tall buildings: An owner generally has the right to build as high a building as he wishes (assuming that it satisfies all applicable zoning requirements and building restrictions. Thus if two owners are adjacent to each other, one cannot object to the other's tall building on the grounds, say, that it ruins the quality of radio and television signals. HYPO: Construction of a new building would block sunlight from reaching Hotel pool so Fontainebleau sought an injunction but was denied. Fontainebleau Hotel Corp. 2. Light: (EVOLUTION OF CASE LAW) An owner of a solar heated residence may be able to state a claim upon which relief can be granted when he asserts that his neighbor's proposed construction of a residence (which conforms to building codes/ordinances) interferes with his access to an unobstructed path for sunlight across the neighbor's property. (Prah v. Maretti) EXCEPTION: Spite Fences erected for malicious harm. 2. Airplane flights a. directly over an owner's property . . . may sue for trespass b. adjacent to P's property . . . may sue for nuisance SERVITUDES: Rules Governing Contractual Restrictions on Land Use Servitudes Definition: a legal device that creates a right or an obligation that runs with the land or with an interest in land. i.e. an owner may grant her neighbor a right to use a road or driveway crossing the owner's land. BUT, If the permission is informal and revocable at will by the owner of the land, it is called a license. A license is not classified as a servitude because it is revocable at will. License a right to use the licensor's land that is revocable at the will of the licensor. This revocability is the main thing that distinguishes licenses from easements. Example: invite your friends over for dinner, you grant them a license to enter your house or apartment. You enter a store under an implied license. License Revocability Exceptions - Licenses cannot be freely revoked in at least four circumstances: 1. Oral license acted upon (EASEMENT BY ESTOPPEL): Most important, a license is irrevocable if its use would have been an easement except for failure to meet the Statute of Frauds, and the license makes substantial expenditures on the land in reliance on the licensor's promise that the license will be permanent or of long duration. (Licenses, prescriptive easements and adverse possession are all EXCEPTIONS to the statute of fraud mandate that transfer of property be in writing.) HYPO: Plaintiff orally gives Defendant permission to build a roadway across P's land so that D can get from his land to the public highway. D expends substantial money digging and paving the road. P attempts to revoke, and sues D for trespass. A court would probably hold that the license, though oral, was irrevocable because of D's substantial reliance expenditures. (see Holbrook)

2. Constructive Trusts a trust (property arrangement in which an owner transfers property to another person(trustee) with instructions to manage the property for benefit of a third party (beneficiary). Most trusts are created by document but not constructive trusts. A constructive trust will be given to a party when there has been a breach of confidence that will wrongfully deprive the party of its rights and unjustly enrich the legal holder. Constructive trusts can temporarily prevent the revocation of a license. 3. Promises to grant license movie theater ticket 4. License coupled with an interest an owner selling personal property to another on her own land gives permission to buyer to enter her land to remove licensee's personal property What justifies making a license irrevocable against the wishes of the grantor? BALANCE BETWEEN grantor's interest in contolling access to her property and the grantee's interest in controlling access to her property and the grantee's interest in reasonably relying on continued rights of access. Courts must choose between implementing the grantor's intent and protecting the grantee's interest in relying on continued access. Easement - If permission is intended to be permanent or irrevocable, it is a type of servitude called an easement. Burdened estate vs. Benefited estate aka Servient estate vs. Dominant estate Subsequent owners may have the burden of the servitude if easement was intended to run with the land and such land is known as the burdened or servient estate. (i.e. subsequent owners have burden of continuing to allow a road to be used by the easement owner or the benefited or dominant estate. Affirmative easement A right to do something on someone else's land RESTRICTIVE EASEMENTS agreements restricting or regulating the use of property 1) Negative easements a negative easement is one which enables its holder to prevent the owner of land from making certain uses of the land. These are rare. HYPO: A owns Whiteacre, which is next to the ocean; B owns Blackacre, which is separated from the ocean by Whiteacre. A gives B an easement of light and air, which assures B that A will not build anything on Whiteacre which would block B's view of the ocean. B holds a negative easement. 2) Restrictive covenants contractual agreements by which landowners agreed to restrict the use of their land for the benefit of either their landlord or neighboring owners 3) equitable servitudes another way of imposing land use restrictions Modern Trend Abolish negative easement and equitable servitudes and call all restrictive obligations restrictive covenants *EXCEPTION: One particular type of easement has retained its traditional special name: The right to remove materials (such as minerals or oil or gas or trees) from another's property is called a profit. (i.e. the right to mine minerals, drill oil, or capture wild game or fish, are all profits). CREATION OF EASEMENTS A. Four ways to create: 1. by an express grant; 2. by implication; 3. by strict necessity; 4 by prescription. B. Express creation: If an easement is created by a deed or a will, it is express. MOST EASEMENTS ARE CREATED BY DEED (express agreement). 1. Statute of Frauds: An express easement must be in writing. This is required by St. o F. 2. Reservation in grantor: Often, an express easement is created when the owner of land

conveys the land to someone else, and reserves for himself an easement in it. This is called an easement by reservation. Example: A deeds Blackacre to B, with a statement in the deed that A hereby retains the right of way over the eastern eight feet of the property. 3. Creation in stranger to deed i.e. O owns two parcels, 1 and 2. O sells 1 to P, without recording any easement over parcel 2 in favor of parcel 1. O then deeds parcel 2 to D, with a statement in the deed, Easement reserved in favor of P or his successors to parcel 1. Today, in most courts (and under 3rd Rest. this easement will be enforced even though P was not a party to the O-D deed.) C. Creation by implication: An easement by implication may sometimes be created. If so, it does not have to satisfy the st. of f. AKA Easements Implied from Prior Use 1. Requirements: There are three requirements for an easement by implication: (1) land must be divided up (or severed), so that the owner of a parcel is either selling part or retaining part, or subdividing the property and selling pieces to different grantees; (2) the use for which the implied easement is claimed must have existed prior to the severance; and (3) the easement must be at least reasonably necessary to the enjoyment of the dominant tenement. 2. Severance An easement will only be implied where the owner of a parcel sells part and retains part, or sells pieces simultaneously to more than one grantee. This is the requirement of severance. HYPO: A and B are neighboring landowners. A new street is built adjoining B's property, and A can only get to this street by crossing B's property. A crosses B's property at a particular spot for several years, then sells to C. C has no easement by implication across B's property, because there was never any conveyance between A and B, required for the creation of an easement by implication. 3. Prior Use: The use for which the easement is claimed must have existed prior to the severance of ownership. 4. Necessity: According to most courts, the easement must be reasonably necessary to the enjoyment of what is claimed to be the dominant tenement. Courts are stricter in imposing this requirement where the easement is created by grant (i.e., in favor of the grantee), than where the easement is reserved (i.e., in favor of the grantor). EXAMPLE of easement by implication: O owns two houses side by side on one parcel. To give the garage behind house no. 1 access to the street, he builds a driveway which runs between the two houses. O then conveys house no. 2, including part of the land and the driveway, to A. An implied easement in favor of house no. 1, and against the land on which no. 2 is located, will be reserved with respect to the driveway. Also, if O conveys house no. 1, an implied easement in favor of that house will be created against the land of house no. 2. This is because: (1) O was the owner of both tenements just before the easement came into being; (2) the use existed prior to the severance of the two tenements; and (3) the easement is reasonably necessary to the enjoyment of house no. 1's garage. 5. Easement of light and air: An easement of light and air (the right to have one's view remain unobstructed) cannot be created by implication, in most states. D. Easement by necessity: The courts will find an easement by necessity if two parcels are so situated that an easement over one is strictly necessary to the enjoyment of the other. 1. Common grantor: The courts require that at one time, both the alleged dominant tenement and the alleged servient tenement were owned by the same person. 2. No prior use: But unlike the easement by implication, there does not have to have been a prior use, that is, the easement does not have to have been used prior to the time the two

parcels were split up. HYPO: O owns parcel 1 and parcel 2, which adjoin each other. In 1950, he sells parcel 1 to P and parcel 2 to D. In 1960, an old road serving parcel 1 is closed, and a new one is built so that the only way to get from parcel 1 to the road is by crossing parcel 2. Because both parcels were owned originally by the same owner, O, the courts will grant parcel 1 an easement over parcel 2 to get to the road, even though no such easement was in use at the time O split up the ownership of the parcels. 3. Landlocked parcels: The most common example of an easement by necessity is where a parcel is landlocked, so that access to a public road can only be gained via a right of way over adjoining property (as in the above example) E. Easement by prescription: An easement by prescription is one that is gained under principles of adverse possession. If a person uses another's land for more than the statute of limitations period governing ejectment actions, he gains an easement by prescription. F. Easement by estoppel: One last way an easement may be created is by estoppel An easement by estoppel is created when A allows B to use A's land under circumstances where A should reasonably foresee that B will substantially change position believing that this permission will not be revoked, and B in fact changes position. An easement can come into existence by this method even though the parties never mention the word easement, or mention the possibility of revocation. HYPO: A and B have adjacent lots, with only A's lot having access to the public road. A, knowing that B wants to build a house, tells B orally that if B builds the house, B can use a path along A's parcel to get from the house to the road. B builds the house. A will be deemed to have given B a permanent easement by estoppel, since B has reasonably and foreseeably relied on A's promise of continuing access. When do Easements Run with the Land? A. Burden without writing - The burden of easements created by implication, necessity and estoppel run with the land if they are intended to do so and are reasonably necessary for the enjoyment of the dominant estate. B. Burden of an express easement runs with the land if: 1. It is in writing 2. it is intended to run with the land 3. subsequent owners of the servient estate have notice. 3a. Three Kinds of Notice 1. actual notice subsequent owners actually in fact know about the existence 2. inquiry notice visible signs of use by non-owners, such as telephone poles, above ground utility lines, or a path across the property (a reasonable buyer would do further investigation to discover whether an easement exists. 3. constructive notice subsequent owners are deemed to be on constructive notice when the easement is recorded in the proper registry of deeds in the proper place, and if the deed is in the chain of title meaning that a title search of prior owners of the property would lead to discovery of the deed. (whether they knew or did not know about the easement, they should have known). C. Benefit The benefit of an express easement runs with the land (which is to say it is an appurtenant easement) if it is so intended by the grantor. (If the benefit of an easement is not intended to run with the land then it is an easement in gross. Appurtenant vs. in gross 1. Appurtenant - An easement appurtenant is one which benefits its holder in the use of a certain piece of land. The land for whose benefit the appurtenant easement is created is called the dominant

tenement. The land that is burdened or used is called the burdened tenement HYPO: Blackacre, owned by S, stands between Whiteacre, owned by D, and the public road. S gives D the right to pass over a defined part of Blackacre to get from Whiteacre to the road. This right of way is an easement that is appurtenant to Whiteacre Blackacre is the servient tenement, and Whiteacre is the dominant tenement. a. Test for: For an easement to be appurtenant, its benefit must be intimately tied to a particular piece of land (the dominant tenement). Green v. Lupo: When an easement is granted for the purposes of ingress, egress and utility, will that be evidence of intent to create an appurtenant easement? Yes. Appurtenant easements follow possession of the dominant estate through successive transfers. The rule applies even when the dominant estate is subdivided into parcels, with each parcel continuing to enjoy the use of the servient tenement. Easement appurtenants are assignable to future owners of that property. Presumption that easements are appurtenant. 2. Easements in gross: An easement in gross is one whose benefit is not tied to any particular parcel. HYPO: O, who owns Blackacre, gives E, who lives across town, the right to come onto Blackacre anytime he wants, and use O's swimming pool. Since the grant is not given because of E's ownership of nearby land, the easement is in gross. Transfer of Easements (Appurtenant vs. in gross) 1. Transfer and Apportionability of easements appurtenant: An easement appurtenant (one where the benefit applies to particular land only) normally passes with the transfer of the dominant estate. a. Subdivision: Also, if the dominant estate is sub-divided into smaller lots sold to different people, and the geography is such that each of the smaller lots can benefit from the easement, then each will generally be permitted to do so. (But this will not happen if this would result in an extreme increase in the burden to the servient estate.) 2. Transfer and Apportionability of Easement in gross: at common law, easements in gross are not transferable. HYPO: O owns Blackacre, which adjoins a public beach. O sells A, a friend of his who lives in a different city, the permanent right to park in O's driveway and walk across A's land to the beach. Since this easement is in gross it is not intimately tied to particular land held by A at common law it is not transferable by A to anyone else. a. Modern View: Today, courts make it easier to transfer easements in gross. i. Commercial easements: Nearly all modern courts allow assignment of commercial easements in gross, i.e., easements that are intended to be used for economic purposes. HYPO: O gives the telephone company the right to string wires over his land. Today, because of the commercial nature of this easement in gross, nearly all courts would hold that the phone company can assign this right to some other outfit that takes over the phone operations. ii. Non-commercial easements: Some but not all modern courts allow assignment of some non-commercial easements in gross. But even these courts won't allow assignment where the close relationship of the parties, or the lack of compensation for the easement, suggests that the parties didn't intend to allow assignment. b. Exclusive vs. Non-exclusive: When dealing with easements in gross, question of apporionability depends on whether the easement in gross is nonexclusive or exclusive. bi. Nonexclusive the grantor, or owner of the servient estate, has reserved for herself the right to use the easement in conjunction with the grantee the easement is generally held to be nonapportionable. bii. Exclusive if however, the easement is exclusive meaning the grantor has no right to use the easement in conjunction with the grantee the easement is generally held to

be apportionable. Extension of the use of an Easement traditionally prohibited. HYPO: owner of an easement wanted to use the easement across servient estate not only to obtain access to the dominant estate but also to reach a subsequently acquired lot on the other side of the dominant estate. NOPE! Termination of an Easement A. Generally: they last forever unless written agreement to terminate, expires (as stated in easement), if holder of servient estate becomes owner of dominant estate, by owner of easement's abandonment, or by adverse possession or prescription. CREATION OF COVENANTS A. Definition: Like easements, covenants may under some circumstances run with the land. A covenant running with the land is simply a contract between two parties which, because it meets certain technical requirements, has the additional quality that it is binding against one who later buys the promisor's land, and/or enforceable by one who later buys the promisee's land. 1. Legal relief: When we use the term covenant, we are talking about a promise that is subject to legal rather than equitable relief. That is, when a covenant is breached the relief granted is money damages, not an injunction or decree of specific performance. (An injunction or specific performance may be granted for breach of what is called an equitable servitude, discussed below.) B. Statute of Frauds: For a covenant to run with the land, it must be in writing. C. Running with the Land: The only interesting question about covenants is, When do they run with the land? 1. Running of burden and benefit: More specifically, we want to know: (1) When does the burden run (so that the promisor's assignee is bound)? and (2) When does the benefit run (so that the promisee's assignee can sue for damages if the covenant is breached)? We have to worry about: (1) the touch and concern requirement; and (2) the privity requirements. a. Touch and concern: For the burden to run, under the traditional rule the burden must touch and concern the promisor's land. Similarly, for the benefit to run, under the traditional rule the benefit must touch and concern the promisee's land. i. Modern approach abandons requirement: But for the modern approach as exemplified by the Third Rest. abandons the touch and concern requirement entirely. b. Privity: Also, for the burden to run, there must be privity of estate, which usually means both a land transfer between the promisor and promisee (horizontal privity) plus a succession of estate from promisor and promisor's assignee (vertical privity). For the benefit to run, horizontal privity is sometimes required, but vertical privity is generally not. (see further discussion below). 2. Diagram: Shows how the terms horizontal and vertical privity are used: On the facts as diagrammed, B has promised A that B and his assigns will never use Blackacre in a certain way (e.g. for retail purposes), and that if they do, they'll pay damages. The issues are whether B's assignee, D, is burdened by this promise (i.e., can be liable for damages), and whether A's assignee, C, is benefitted by it (i.e., can sue for damages).

3. Privity between promisor and promisee (horizontal privity): Where a court requires horizontal privity, it means that there must be some land transfer between the original promisor and the original promisee. a. Running of burden, under traditional rule: In America, horizontal privity is traditionally required in order for the burden to run. This mainly means that if the original parties are strangers to title, the burden will not run. Thus two neighboring landowners cannot get together and agree that neither will use his property for a certain purpose, and have this restriction be binding on a subsequent purchaser from either of them. Example 1: In diagram, assume that A and B have never had any land transaction other than B's promise to A that B and his assigns won't use Blackacre for retail purposes. B sells to D, who builds a store on Blackacre. Under the traditional rule, A can't sue D for damages for breaching the B-to-A covenant. This is so because there was never any land transfer between A and B, and thus no horizontal privity between them. i. Requirement satisfied: But the horizontal requirement is satisfied (even under the traditional rule) if the original promisor and promisee have some land-transfer relationship. Example 2: Same basic fact pattern as Example 1 above. Now, however, assume that A originally owned both Whiteacre and Blackacre. Then, A sold Blackacre to B, and the deed recited B's commitment (on behalf of himself and his assigns) not to use Blackacre for retail purposes. Again as above, B conveys to D, who builds a store. Now, A can sue D for damages, because there was horizontal privity between A and B, in the sense of a land transfer between them. ii. Modern/Restatement approach abandons requirement: But the modern approach used by the Third Rest. abandons the requirement of horizontal privity

entirely. Thus under the Restatement, in Example 1, A could recover damages from D even though there never was a property transaction between A and B. b. Running of benefit: Most courts traditionally hold that there must also be horizontal privity for the benefit to run. (Nearly all courts hold that the same privity rule that applies to running of burden applies to running of benefit; since most courts have traditionally required horizontal privity for running of burden, they have also required it for running of benefit.) Example: In terms of Example 1, assume that A conveys Whiteacre to C, with no prior property transfers having occurred between A and B. B builds a store on Blackacre. If the state follows the traditional rule that horizontal privity is required for the burden to run, the state will probably also require horizontal privity for the benefit to run. In that instance, C won't be able to sue B for damages, because the benefit won't run due to the lack of horizontal privity between A and B. i. Restatement abandons: Again, the modern/Third Rest. approach is not to require horizontal privity for the running of the benefit any more than for running of the burden. So under the Third Rest., on the above Example C can sue B for damages. 4. Privity between litigants (vertical privity): When a court requires vertical privity, this refers to the relationship between the promisor and his successor in interest, or the relation between the promisee and his successor. So in terms of our diagram on p. 75, the issue is whether A and C are in vertical privity, and whether B and D are in vertical privity. a. Running of burden: For the burden to run, the traditional rule is that the party against whom it is to be enforced must succeed to the entire estate of the original promisor, in the durational sense. Example: Same facts as Example 1: A owns Whiteacre, B owns the adjacent Blackacre, and B promises A that B and his assigns will not use Blackacre for retail purposes. Now, assume that B conveys a life estate to D, remainder to X. D builds a store. B and D are not in vertical privity, because D has taken a lesser estate (a life estate) than that originally possessed by his grantor B (a fee simple). Therefore, under the traditional rule A (or his assignee C) will not be able to recover money damages against D, because there was no vertical privity on the burden side. i. Third Restatement's rule: But again, the Third Restatement makes it easier for the burden to run than did the traditional rule. The Third Restatement abandons the requirement of vertical privity for the running of the burden as to negative covenants, but not generally as to affirmative convenants. Example (negative covenant): Same facts as the prior example. Even though B and D are not in vertical privity, under the Restatement Third rule, A (or his assignee C) could sue D if D builds a store. That's because the Third Restatement does not impose any requirement of vertical privity for the running of the burdens (or, for that matter, the benefits) of negative covenants, and B's promise not to build retail was a negative covenant. (But if B had made an affirmative promise, such as to pay money for the upkeep of a community swimming pool, D would not have to keep that promise, even under the Restatement. b. Running of benefit: But the vertical privity requirement has much less bite on the benefit side. Even under the traditional rule, the benefit may be enforced by anyone who has taken possession of the promisee's property with the promisee's permission. Example: On the facts of our main (first) example, if A gave a long-term lease to C, C could sue B for damages if B built a store on Blackacre. i. Homeowners association: If P is a homeowners' association set up by a developer to collect annual fees from homeowners in a subdivision (used to maintain common areas), the

association may sue non-payers even though the association owns no property in the development. Thus the requirement of vertical privity is almost completely relieved in this instance. 5. Touch and Concern requirement: a. Running of benefit: For the benefit to run, the traditional rule is that the benefit must touch and concern the promisee's land. But this requirement does not have too much practical bite most kinds of covenants that have anything to do with real estate (e.g. promises to make repairs, promises not to demolish, promises to pay money to a homeowners association, etc.) are found to touch and concern the promisee's land (as well as the promisor's land). i. Burden in gross: If the benefit touches and concerns the promisee's land, the benefit will run even though the burden does not. That is, the benefit can run even if the burden is in gross, i.e., personal to the promisor. HYPO: D sells land containing a restaurant to P; as part of the transaction, D promises not to operate a competing restaurant within a two mile radius. (Assume that the state holds that a non-compete promise touches and concerns the promisee's land.) P then conveys the property to X. X can sue D for breach of the promise since the benefit touches and concerns the P/X land, the benefit can run even though the burden is in gross, i.e., personal to D and not tied to any particular land owned by D. b. Running of burden: For the burden to run, the traditional rule is, again, that that burden must touch and concern the promisor's land. i. Running of burden when benefit is in gross: Furthermore, about half of the courts following the traditional requirement of touch and concern impose an additional significant requirement: these courts hold that the burden will not run if the benefit does not touch and concern the promisee's land. (That is, half the courts say the courts say that the burden may not run when the benefit is in gross.) Example:A, the owner of Blackacre, sell it to B. B promises not to operate a liquor store on the property so as not to compete with any similar store that may be owned by A from time to time within a 10-mile radius of Blackacre. Assume that the state is one which holds that such a territorial non-compete promise does not touch and concern the promisee's land. B then sells Blackacre to C. About half of the courts would hold that A cannot sue C for breach, because the burden will not run where the benefit is in gross, i.e., personal to A. c. Restatement Third eliminates rule: The Third Restatement entirely eliminates the touch and concern requirement, as to the running of both the burden and the benefit. HYPO: On the facts of the prior example, it won't matter whether B's non-compete promise is deemed to touch or concern the land of A (the promisee) if B sells to D, A can sue D, under the Third Restatement. Implied Reciprocal Negative Servitudes in Residential Subdivisions: Where a large tract of land has been subdivided into lots, watch for a subsequent property owner whose deed does not contain a restriction and a prior grantee who wishes to bind him to restrictions found in his own deed. As long as the court can find that (1) there was a general plan of restrictions for the subdivision; and (2) that the owner whose deed doesn't have the restriction had at least constructive notice of the general plan, the court will probably find that an implied reciprocal servitude came into existence, and will grant an injunction. This type of fact pattern is surprisingly often tested.

Implied reciprocal negative servitudes in the absence of both privity of contract and privity of estate, the courts turned to third party beneficiary doctrine.Courts determined that early buyers were intended beneficiaries of covenants made by later buyers if all their lots were part of a common plan or scheme of development, with all lots in the plan obligated to comply with the uniform plan of restrictions for the benefit of all other owners in the area. Example: Developer has a large parcel, which he subdivides into 300 lots. Developer advertises all 300 lots by saying: Part of a carefully controlled 300-lot residential community, which will forevermore consist solely of single-family houses. For each of the first 140 lots, Developer sells the lot with a deed that says, Grantee agrees, for his successors and assigns, that the land will never be used for any building other than a single-family house. Each of these deeds is duly recorded. One of them, Lot 10, is bought by A. The market then enters a downturn, and Developer decides that the remaining 160 lots will sell better if they are sold without restrictions. He therefore issues deeds without any restriction, and advertises that the lots may be used for any purpose valid under local zoning laws. B buys one of these later lots, Lot 182, without any actual knowledge that the first 140 lots were sold with restrictions. He then starts to build an apartment building (valid under zoning laws) on the lot. A can probably get an injunction against B under an implied reciprocal servitude theory. That is, A can argue that Developer enacted a general plan of restrictions for the entire subdivision, by advertising the restrictions and recording restrictions for the first 140 units. He can further argue that when A burdened his own lot, Developer (then the owner of lot 182) impliedly promised to burden all of his remaining lots with the same restriction. Since B had constructive notice of the restriction (a check of the land records for any of the first 140 homes in the division would have turned up the restriction), the court will probably find that an equitable servitude was, as A argues, created against Lot 182 in favor of all prior and subsequent owners. If so, A would receive his injunction. Example 2: Owner wants to subdivide a large tract of land and sell 100 lots, restricted to residential use and each lot to a single family home. To accomplish, she places covenants in each deed. But, there is a privity problem here even under equitable servitudes law, which does not require privity, promises made by buyers to sellers restricting land use are generally interpreted to be intended to benefit the remaining land of the seller. Thus, when the seller later sells the remaining parcels, owners of those parcels are intended beneficiaries of the covenant and can sue earlier buyers if they breach the covenant. The early buyers were in horizontal privity with the seller, and the subsequent owners of the seller's remaining land are in vertical privity with her. Problem exists in trying to find which lots are intended to be dominant estates, and a problem of notice to the servient owners of the exact number and identity of dominant estates entitled to enforce the covenant they made with the developer. Illustration Below: Understand how buyer 2 can enforce against buyer 1 but buyer 1 cannot enforce against buyer 2 because of subsequent lots, in order to be burdened in favor of prior lots, must be burdened while in the hands of the common grantor. The doctrine of implied reciprocal negative servitudes was constructed to address this situation. It's like a 3/p/b contract. Know that you must look for a common plan or scheme and know how to find it.

Horizontal Privity Developer/ covenantee (benefit of covenant) dominant estate Lot 1 Buyer/ covenantor (burden of covenant) servient estate

Vertical Privity

Lot 2 Buyer/assignee of dominant estate

Evans v. Pollack In a common development scheme, do restrictions have to apply to the entire subdivision in order for the doctrine of implied reciprocal negative servitude doctrine to apply? NO. If common scheme . . . get an injunction against who ever is trying to build. * Enforcement by homeowners association: homeowners associations have standing to enforce those servitudes if the declaration gives them the power. However, some courts will not allow the homeowners association to bring suit to enforce the covenants if the declaration creating the association did not expressly grant it the power. Interpretation of Ambiguous Covenants A. Generally: Courts should give effect to the intent of the parties as expressed in the plain language of the covenant; but, when there is any ambiguity or substantial doubt as to the meaning, restrictive covenants will be PRESUMPTIVELY read narrowly in favor of the free use of property. ** Blevins Is running a group home for unrelated (retarded) people a residential purpose that can be considered a single or double family dwelling? Court rules yes . . . group home=residential use. Also in covenant was restriction of only single or double family dwellings but court ruled that this restriction was one of structure and not use. Modifying and Terminating Covenants Changed Conditions Doctrine El Di, Inc. v. Town of Bethany Beach - A restaurant wanted to sell alcohol in a community that has restrictive covenants prohibiting the sale of alcohol. If a restrictive covenant no longer benefits a parcel of land, must it still be enforced? No. The purpose of the covenant was to maintain a quiet, reside