Property Outline NS

8/9/2019 Property Outline NS

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10/02/2014PROPERTY OUTLINE

I. POSSESSION

Having or holding dominion over property, and the right to exclude others from property

A. Discovery

The act of finding property previously unknown entitles the discoverer to possession of

the property

Johnson

- Lands conveyed from Indian tribe to A; the same lands were conveyed to

B from the U.S. government. Who ultimately has the right to the land? B

because Discovery entitled the U.S. to the land.

B. Capture

Possession via capture is acquired by occupancy only and does not take pursuit into

account.

Pierson v. Post

- A chases after a fox, B kills fox. Court ultimately awards to B under

doctrine of capture; what matters is the killing and taking of the fox, and

not the pursuit.

C. Find

When a person finds a chattel, he or she is entitled to possession of that chattel above all

except the true owner.

Armory v. Delamirie

- Chimney sweep finds a jewel and is entitled to possession of it over a

goldsmith.

(Policy: prevents theft)

Clark

- Chattels are secured by A and drift down stream and are found by B;

court finds A to be in possession because mere loss of chattels does not

transfer title, abandonment will suffice.

Place of Find as Determining Factor

Public Propertyfound property goes to the finder

Private Propertyfound property goes to the owner of the locus

Hannah v. Peel


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- When A finds a chattel unknown to B on Bs property, does A possess

chattel? No. But in this case, Bs property is a public place, so yes.

-Constructive possessionactual control, but not physical control

Nature of the Property as Determining Factor

Mislaid, Lost and Abandoned Property

McAvoy

- Pocketbook found in a barbershop, belongs to finder, or to barber shop?

Barbershop because the property wasmislaid, i.e. intentionally put down

and later forgotten about. Mislaid property goes to owner of locus for safe

keeping.

Michael

- A finder ofmislaidproperty is not entitled to any rights, a finder of lost

property (i.e. unintentional separation) is entitled to ownership over all

others except true owner, and is entitled to keepabandonedproperty (i.e.

voluntary relinquishment without intent to return).

Herron

-Abandonmentrequires intent + an act.

D. Bailment

Deliveryof property by one person (Bailor) to another (Bailee) who takes custody of the

property for some purpose. Bailment does not constitute a transfer of possession, just the

property itself. (Delivery: formal act of transferring something)

Broaddus

- Demonstration that bailment exists only in the event of exclusion from

the property that is subject of the bailment agreement. If there is access,

no bailment exists.

Classifications of a Bailment (Different degrees of care)

i) Sole benefit of bailor (Bailee only liable for gross negligence)

a. Use neighbors garage.

ii) Sole benefit of bailee (Bailee liable for slight negligence)

a. Use friends car.

iii) Mutual benefit (Bailee liable for ordinary negligence)a. Use neighbors garage. Neighbor uses car. (excluding money)

iv) Benefit for Hire (Bailee liable for ordinary negligence)

a. Use neighbors garage. Pay him for it.

Godfrey

- Did bailment agreement exist? Yes. Mutual benefit bailment. Thus, city

was liable for negligence.

E. Gifts


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Voluntary transfer of property without consideration. Donor must have intent,delivery,

and donee must haveacceptance.

Types ofdelivery:

i) Actual (if it can be done, it must be done)

ii) Symbolic (writing evidencing ownership, i.e. pink slip)

iii) Constructive (unable to provide actual delivery because of bulk, i.e. key to

car)

Inter Vivos Gifts

- Gifts transferred during the donors lifetime

Johnson

- Donor parts with all present and future dominion

- Must be delivery to donee

- Gift must be absolute and irrevocable, has to take place presently

Ray

- If actual delivery cannot be made, Symbolic delivery will suffice

Carlson

- Where things intended to be given are not present, or cannot be given

due to size or weight, a key suffices as a constructive delivery.

Hill

- Court ruled gift was constructively delivered. (As a side note,

constructive delivery could not be possible because cash in safe was not

too bulky, but rather the ruling reflected a policy ruling based on the

donors obvious intentand the donees actions)

Causa Mortis Gifts

- Gifts transferred in contemplation of imminent death, in addition to 3 other

elements required for gifts.

Scherer

- Did As gift constitute a constructive delivery? Does suicide satisfy

causa mortis requirements? Court found no issue of fraud and intentclear

enough to justify a ruling. (Modern interpretation of constructive delivery

for benefit of policy)

II. ADVERSE POSSESSION

- Means of possession in which a possessor can wrest title from the true owner of land. Must

satisfy the elements of:actual,open and notorious, exclusive,continuous,hostileand under

claim of right. AOE. CHC.

Policyin favor of productive use of the land


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Burden of ProofMust prove adverse possession beyond reasonable doubt, and not merely

by a preponderance of the evidence

A. Actual Entry

Substantial occupation of land enough to carve out boundaries of the land and begin the

clock on continuous possession.

- Fencing is a strong indicator

- Cultivation of land

- Use of land as an ordinary owner would and to the extent the land is capable of

being used

B. Open and Notorious

Open implies that the possession is visible without any attempt to hide it

Notorious requires that the possession be sufficient that neighboring parties would, or

could reasonably give true owner notice of possession.

Mannillo

-Actual notice-> must be informed of the facts, whatever the source

-Encroachment-> interference or intrusion onto anothers property

- Does true owner have actual knowledge of encroachment? Possession is

open and notorious only if true owner has actual knowledge of

encroachment.

- Actual notice is irrelevant unless the encroachment is small

C. Exclusive

Use and dominion over property must be solely with the possessor, barring others from

use, especially the true owner.

Rick

- True owner continued to allow others to use land: 1) Advertisement 2)

Highway 3) Military exercises

- Therefore, no exclusivity of use by possessor

D. Hostile

Possession must be made against the will of the true owner and against the world in

order to be deemed hostile.

E. Claim of Right

Entry must be with clear intent to possess land as ones own.

Claim of right in good faith


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Carpenter

- Some jurisdictions require an adverse possession to be ingood faith->

must have the true belief that nobody else owns the land

- Policy -> otherwise court would be sanctioning squatting

Claim of right in bad faith

Mannillo- Precedent shows that the mistake element has no place in this jurisdiction

and essentially rewards those with premeditated desire to possess lands

that the possessor knows belong to somebody else, i.e. bad faith.

- In this case, court rules that neither intention nor mistake has a place

because of the lack of actual knowledge on the part of the true owner with

regard to the small encroachment.

Objective standard

ITT Rayonier

- Not concerned with intent of possessor, what matters is the physical act,i.e. claim of right is not a necessary element.

F. Continuity

Possession must be continuous, i.e. without break, for the entirety of the statutory

period (varies per jurisdiction).

Kash

- If property is abandoned during possession period, however brief,

statutory period starts over upon return.

Anneberg

- Adverse possessor only needs to demonstrate possession and use of land

during the period where the land can reasonably be used, i.e., irrigation

ditch during cropping season. If so, continuity of statutory period is

preserved.

Kay

- Occupation satisfies continuous element if property is being used as

would an ordinary user of land, or the original owner.

Tacking

AP2 tacks on the time of his possession onto time of AP1.

Worm

- Provided the adverse possession satisfies all other elements, the

possession is a continuation of the prior possessor, and the possessor

claims title from the previous possessor, than the continuity of possession

is maintained.


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Waller

-Privityrelationship with respect to land

- With regard to privity, there need not be a written agreement of a transfer

of possession, verbal agreement is sufficient, because there is no actual

ownership of the land.

G. Color of Title

Person comes into possession of land via a deed or other instrument that is defective.

Green

- Does a void tax deed satisfy a transfer of possession? Yes.

Intent

Split of Authority:

Karvonen- Knowing a deed is void does not satisfy adverse possession under

color of title, i.e. Bad Faith.

Duncan

- Good faith in a claim is irrelevant with regard to color of title.

- Policycourts do not want to change the statutes and there is no

mention of good faith being necessary within the statutes.

Advantages of Color of Title

1) Statutory period for continuity can be shortened

Harper

- Color of title possession statutory period 10 yrs., A.P. by

prescription required 20 years.

2) Need not establish hostility

Territory

3) Color of title can extend actual possession of part of land, to constructive

possession of all of the land.

Birchfield

- Hypo 1 acre farmed on 100 acres land issued under fake deed

for all 100 acres will give up the entire 100 acres.

F. Payment of Taxes

Scott


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-Some jurisdictions require property tax payments on adversely possessed land.

Policy -> prevent squatters.

G. Disabilities

Disabilities will extend statute of limitations

However, Adverse Possessor must make actual entry during disability

Abel (No adverse possession because true owner was in a mental institution at

the time of actual entry)

Commercial Bank (Yes adverse possession because actual entry was made

during the lifetime of the true owner, with his knowledge, does not matter that

daughters were minors)

H. Boundary Line Disputes

King- Ways to solve boundary dispute in absence of an instrument in writing:

1) Adverse possession

2) Boundary by agreement

i) Uncertainty or dispute on the true boundaries

ii) An agreement as to what the boundary will be

iii) Subsequent occupation within confines of agreement

3) Boundary by acquiescence

i) Both parties are in doubt as to the boundary

ii) Continued occupation outside of true boundary for a period of

more than the statute of limitations.


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III. COTENANCY

A. Tenancy In Common

Each cotenant owns separateand undivided share in property. Tenancy in Common

differs from Joint Tenancy in that there is no right of survivorship. The separatenature of the

cotenancy enables the cotenant to 1) convey title by deed (in his lifetime) and 2) devise title by

will (in death).

Only requires unity of possession

B. Joint Tenancy

Each cotenant owns an undivided fractional share of the whole property, i.e. unity of

possession. There are 4 Unities(Simonich) necessary at CL to create Joint Tenancy:

i) TIMEcotenants must acquire interest at the same time

ii) TITLEcotenants must acquire ownership in the same deed

iii) INTERESTcotenants must acquire same shares in interest 50/50 33/33/33 iv) POSESSIONeach cotenant must have right to possess the whole

Cotenants in a Joint Tenancy are entitled to a right ofsurvivorshipone cotenant dies,

the other cotenant was and remains the owner of the whole (legal fiction) (saves a court trip)

(affidavit just needs to be filed)

At CL, 4 Unities necessaryModernly, just possession with a manifested intent is

necessary to do away with strawman transfers through inter vivos gift (Taylor)

C. Tenancy By the Entirety

Tenancy by the Entirety is essentially identical to Joint Tenancy except that it requires a

marriage between the two cotenants, in addition to the 4 unities. Each tenant owns the whole,

and not a share. (no transfer cant convey to self or strawmanunless both consenting key

difference)

if only husband owes a debt, a creditor cant attach the debt to the property.

Beal Bank

-Modernly, if a husband and wife take property together, the cotenancy is presumptively

a tenancy by the entirety even in the absence of explicit labeling as such. (emphasis on intent

modernly)

Community Property (Only certain jurisdictions)

Smith

- Assets acquired during a marriage will be presumed to belong to each cotenant as a

tenancy by the entirety and the burden of proof otherwise will belong to the cotenant claiming

separate ownership of the property.


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D. Rights and Liabilities of Cotenancy

Contribution for Expenditure

(MortgageRepairsRentsInsurancePropertytax) (MRRIP)

Meckler - When A pays more than his pro-rata share of a mortgage, is he entitled to

contribution/reimbursement from cotenant B? Yes.

- Policyfacilitates payment of mortgages, people dont lose their homes

Janik

- Property tax and insurance are also subject to reimbursement of contribution. Policy

if somebody falls on your property and no insurance, could lose your house.

Lewis

- Cotenant A is entitled to contribution from cotenant B when A makes necessary repairsto a property, but not when the repairs are improvements, i.e. when they raise the property value

or add life to it.

Hermance

- While necessary repairs entitle a cotenant to contribution from another cotenant, a

cotenant may be entitled to reimbursement upon partition for expenditure that added value to the

property (not for cost of improvement, and cap is cost you cant make a profit when you sell).

Faust

- If cotenant A rents out property to X (third party), A must account to cotenant B forrents collected.

One Tenant in Exclusive Possession

FriendlyA not liable to B for As sole possession (Fundaburk)

Hostile (Ouster)A will be liable to ousted party for damages for ordinary share of

value during the period of the ouster (Brunscher)

Waste

Permanent damage to real property by one in rightful possession. Non-consenting

cotenants will be entitled to damages/injunction for waste.

Affirmative waste- intentional act. Like cutting tree.

Passive waste- failing to act to fix.


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Open Mines DoctrineIf using property for its intended purpose, it is not waste,

unless property has never been used for that purpose before (Chosar)

Partition

If parties cannot agree on use of property, each has a right of partition, which is the

ending of a cotenancy. Right to partition is absolute except with tenancy by the entirety.

1) Partition in Kind

Division of land into two equal shares

Courts favor

Doctrine of Oweltyin the event of uneven shares, A pays difference in value to B

2) Sale of Land and Division of Proceeds

Ouster

Repudiation of another cotenants title by one cotenant, by declaration or act.

When T1 & T2 are cotenants, T1 ousts T2can T1 acquire sole ownership? YES

through adverse possession.

1) Ouster by Adverse Possession

must be hostile against cotenant/deny one of their ownership right.

2) Constructive Ouster

property not fit for double occupancy (i.e. danger to cotenant/domestic

violence OR a court order!)

Constructive Ouster is enough to negate liability for ousted party

Partition

Tenants in common/Joint Tenants have absolute right to partition.

o 2 Issues for Court.

1. Partition in Kind (favored by court) (SPLIT THE LAND)

2. Sold and split proceeds.

Doctrine of Owelty- splitting may devalue the property, therefore, if one side gets

the more valuedthe person who gets more value pays the cash award to the other

tenant(s)

IV. SIMULTANEOUS OWNERSHIP ESTATES AND FUTURE INTERESTS

A. The Meaning of Estates


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An estate is the right to immediately possess the underlying realty in property; an estate

may endure for life, a matter of years or at will. TIME. Deals with TIME.

RIGHTS to land are determined by TIME.

You have a possessory right in the land.

B. The Meaning of Future Interest

A owns estate in land, there will always be a concomitant future interest (exc. In Fee

Simple Absolute)

a right to possession at sometime in the futurebut not guaranteed.

Expectancyis not a future interest

Robinson

- Expectancy: Contingency as to possession that is expected or hoped for

- Expectancy counts for zero, it is not a property interest

CA Civil Code 700Heir apparent is not deemed an interest of any kind

C. Freehold Estates

An estate for life, or infee; the opposite of a non-freehold, i.e. leasehold

Pacific Southwest Realty Co.

- Seisinowner of freehold or owner of reverter from leaseholder

1) Fee Simple (Asbolute)

Absolute ownership/all rights to land without end or limitation

No future interest in another person

Largest estate that a person can have (with regard to TIME)

Owner obtains all rights and privileges with respect to land

Creation of Fee Simple

Penienskice Ancient CLand his heirs necessary to convey fee simple by instrument (magical

words must be used) to A doesnt work. Must be To A and his heirs (magic words) heirs

took nothing just words needed in the past for Ancient CL.

Modernlook only to intent of the owner and his heirs no longer needed.

Courts start by assuming O looks to convey a fee simple absolute

Defeasible Fees


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Fees that MAY terminate.

1)Fee Simple Determinable Fee (could go on forever) Determinable (may end if event

occurs)

Denoted by words of duration (as long as, until, etc.)

Upon satisfaction of condition, fee automatically ends

no total ownership. Someone else may have a future interest.

Riggs

Mere statement of purpose cannot debase a fee simple absolute or

transform it into a defeasible fee.

Concomitant Future Interest (for F.S.D.)

Reverter

If O conveys estate to A in fee simple determinable, O maintains possibility of reverter(Estate comes back on satisfaction of condition)

Transferred by Devise

1) Not effective until testators death

Possibility of reverter transferred to Os heirs at the time of conditional event would

occur

2) Fee Simple on Condition Subsequent (courts favor this over FSD)

Denoted by words of condition (provided, upon condition, etc.)

Personal covenants are not considered conditions for termination of a fee

i.e., On the condition that no building be built on the property

Concomitant Future Interest

Right of Entry (Right of Re-Entry)

Must have re-entry by original owner

Express language of a right of entry is not necessary to the creation of a FSCS

Transfer Right of Re-Entrysplit of authority

CL: No transfer of the right of re-entry

Modern: Can transfer right of re-entry in most jurisdictions

Direct Restraint Rule for FSD and FSCS

Direct restrain on alienation makes the fee invalid.

O conveys to A but A can never sell the property

o (Lodge Case) looked at the whole, and the intentof the party. Had both a

condition subsequent and a direct restrain on alienation.


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3)Fee Simple Subject to Executory Limitation (O conveys to A, but if liquor is sold,

then B)

Conveyance requires conditional language

Requires divestment of preceding interest in one other than the grantor


Executory Interest (vests into a Fee Simple Absolute.)

O conveys to A, if something happens, then B has a (Shifting

Interest3 actors)

O conveys to A if Lakers win the NBA finals (Springing Interest

2 actors)

4)Fee Simple Determinable Subject to Executory Limitation(O conveys to A until

liquor is sold, then to B)

Conveyance requires durational language


Executory Interest

Not technically correct, but cannot be called remainder based on precedent.

O conveys to A, when something happens, then B has a (Shifting Interest-- THREE

ACTORS)

O conveys to A so long as Lakers win the NBA finals (Springing Interest--

TWO ACTORS)

DIFFERENCE between FSDSEL and FSSEL

o Violation of rule against perpetuities, then there will be a dramatic difference.

F. Fee Tail (inheritable)

O conveys to A and the heirs of his body, it can endure forever so long as A continues

to have lineal descendents.

Robins Island

- In the abolishment of a fee tail, O ends up with fee simple

Concomitant Future Interest: Reversion (to A and the heirs of his body)

Estate of a lesser quantum is transferred (owner of a fee tail has fewer rights than FSA

& FSD)

O can sue A for waste. (Cant do it in FSD)


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Reversion is a retained interest

Concomitant Future Interest: Reverter

Reverter is when the estate transferred is of the same quantum

Concomitant Future Interest: Remainder to A and the heirs of his body, then to

B

Must be MM!DA"!. #o $a% in&between.

Remainder is a created interest in a third person, conveyed by same deed that takes

effect immediately after the (must be) natural expirationof the prior estate

O conveys a fee tail to A, and upon death of A to BB has a remainder

Brattle Square

To A for life then to B (B has remainder, same

instrument)

To A for life and one day after As death to B (Interest reversion back to O for 24 hours,

O has FSSEL, B has shifting executory interest) one day gap makes it not a remainder

Remainders: Contingent vs. Vested

a) Contingent:(1) Unidentifiable person, or (2) Subject to a condition subsequent

O will always have reversion (unless unidentifiable person becomes identifiable)

(1) O to A then to As heirs

(2) O to A then to B if Dodgers win the 2020 World Series

- O will always have reversion in fee simple

Remainder rights (both contingent and vested) are alienable

Difference between Condition Subsequent and Condition Precedent

1)Precedent:Gift must be part of the same clause

- To A for life, then to B if Dodgers win etccontingent remainder (either to an

unascertainable person or condition precedent (something needs to happen) (not yet

born children) when born they have vested remainderPage 144.

2) Subsequent:Condition must be separate from gift

clause


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- To A for life, then to B, but if Dodgers winthen to C(vested remainder subject to

complete defeasance) Condition follows the gift. A has life estate, B has vested remainder in fee

simple subject to total divestment, and C has a shifting executory interest in Fee simple.

Contingent remainders can be destroyed

b) Vested:(1) Identifiable persons, or (2) Not subject to a condition precedent.

upon who it is vested to becomes fee simple absolute Three Types of Vested Remainders

1) Indefeasibly vested (O conveys to A for life, then

to B) (if B dies he can give to B1 or in will give to anyone he chooses) guaranteed

2) Vested subject to open (O conveys to A for life,

then to the children of A and A has a child open because he can have more kids) A1 has vested

remainder in Fee simple subject to partial divestment.

3) Vested subject to total divestment (condition

subsequent) (O conveys to A for life, then to B, but if C returns to NY then to C) A has life

estate, B has vested remainder in fee simple subject to total divestment, C has shifting executory

interest. If Shifts to C, then he has a vested remainder.

when in doubt, its vested

(for exam)

Regarding Waste

Vested remainderman can sue, contingent cannot.

Acceleration (only for vested)

When T conveys to A for life then B, and A dies before B, Bs immediate possession is

acceleration.

G. Life Estate

Estate is limited to life of the party holding it; possession and use to the exclusion of the

remainderman; entitled to rents, profits, and issues generated; may underlease property; power

to transfer limited by life estate holders life; can sometimes consume or deplete estate; cannot

commit or permit waste. If life estate of A is given to X. X has it for all of As life. Cant transfer

more than you have.

Grantor, or successors in interest of a testator, always retains Remainder to account forfull fee simple.

V. RULES THAT IMPEDE THE FURTHER MARKETABILITY OF PROPERTY

A. Trusts (more common) (equitable estates)


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Fiduciary relationship with respect to property, where the trustee is required to perform

duties for the benefit of a beneficiary (highest degree of care recognized in law.

Trustee/beneficiary relationship) Trustee owns legal title, for the benefit of another (the

beneficiary), which arises out of a manifestation of intent to create it for a legal purpose.Trustee

gets money. Beneficiary gets all the benefits.

Example: O conveys to X for use of A for life, then to use of B; X is the trustee and A

and B are beneficiaries

CLTrustee is entitled to legal title and all burdens of ownership (Legal Fee Simple)

Beneficiary is entitled to benefits (Equitable Fee Simple)

Express Trust

(1) Created either by declaration of trust, by which owner declares himself trustee for

benefit of another party; or

(2) Transfer of Trustin which owner transfers to another as trustee for some beneficiary

either by deed or some other transfer inter vivos, or by will

Spendthrift Trust (hinders alienation) (must be expressly stated)

Beneficiary cannot transfer interest (A for life) A cant transfer and go to Vegas.

Creditors cannot attach beneficiarys interest

Sherman

- Necessary medical treatment, trustee required to pay Dr. directly in spite of spendthrift

trust. Exception to spendthrift trustsomeone who provides the necessities of lifethen they

can attach interest.

B. Destructibility of Contingent RemaindersTo my wife for life, then to my heirs of my son. (wife died, and son was still alive)

contingent remainder dies. When a contingent remainder will not vest, immediately upon

the termination of preceding estate, the contingent remainder is destroyed. O has

reversion? (only applies to legal fees. Not equitable)

Contingent remainder does not vest, remainder is destroyed

CLdestroyed

Modernlytransformed into a fee simple subject to executory interest and his sons

heirs have springing interest.

Ryan

- Doctrine of destructibility applies only to legal contingent remainders of real property,

the doctrine does not apply to equitable interests

Johnson

- Destructibility is but a relic of the feudal past

- Modernly, contingent remainder becomes springing executory interest

C. The Rule In Shelleys Case


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O conveys to A for life, then to As heirs (CL)

As heirs take nothing

A is entitled to a remainder in fee simple absolute (the Doctrine of

Merger)

MOD!'#t*e $rantees *eirs ta+e a contin$ent re,ainder.

City Bank

- The Rule In Shelleys Case takes hold when (regardless of intent)

1) Freehold estate is granted to ancestors

2) Remainder must be limited to his heirs

3) The two estates, freehold and remainder, must be of the same quality, either legal or

equitable

- Rule of law, not of construction

MODERNLYthe grantees heirs take a contingent remainder.

D. The Doctrine of Worthier Title (CL)

O conveys to A for life, then to Os heirs

Os heirs get nothing, rather O receives a reversion in fee simple absolute

All three doctrines are not very common today.

Bixby

VI. THE RULE AGAINST PERPETUITIES

No interest is good unless it must vest, if at all, not later than 21 years AFTERsome

life in being at the creation of the interest

After the persons death + 21 years.

O conveys to A for life, Then to B if the dodgers win the world series no later than

21 years after Bs death. OKAY

O conveys to A for life, then to B if the dodgers win the world series no later than 22

YEARS after Bs death. --- VIOLATION OF RULE .

Contingent remainders and executor interests are the ONLY interests that are subject to

the rule against perpetuities.

Policy: To eliminate interests that vest too remotely

O conveys to A when A passes the CA bar exam. (doesnt violate, because its within his

life)

O is life in being and A is the measuring life.


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O conveys to A for life, then to B if B finds the cure for malaria. (no)

O conveys to A for life, then to B if someone finds the cure for malaria. (yes violation)

O conveys to A so long as liquor is never sold, then to B. (yes B gets cut off)

T devises to Marry Hall and the issue of her body, and in default of such issue to the

daughters of John and Elizabeth. (yes violation) (Mary hall has a fee simple subject to executory

limitation--- the daughters of john and Elizabeth have an executory interest)

Because Marrys bloodline might not run out for a 1000 years, this would be a vestingwell beyond the life of 21.

court is concerned with legal possibilities, not factual probabilities

- one legal possibility that everyone is presumed capable of procreating- period. No

exceptions.

A. Transfer by Will and the Measuring Life

Who is alive when the will is created, i.e. at the death of the testator?Life in being

Joyner

B. Transfer By Deed and the Measuring Life

Who is alive when the deed is delivered from the grantor to the grantee? Life in

Being

C. Legal Possibilities

Jee

- O conveys to A and the issue of her body, and in default of issue, to daughters of J and

E. If A is measuring life, no violation of RAP, but if issue ever runs out, then violation of RAP.

- Court applied What Might Happen Test:

Not interested in factual probabilities, but legal possibilities

Foresight approach, not hindsight approach

what might happen. If Mary dies with no issuestill a violation because foresight

approach not hindsight. (not sure if this is right)

Everyone is capable of procreatingIrrebuttable Presumption

- All or Nothing Rule

With regard to class gifts (i.e. membership of a group), all parties must be valid or gift

is stricken

Example: O to A for life then to children of A who reach 25 years. A1 is already 25

(vested remainder) but then, A2 born a year after As death (therefore whole class is invalid)

(A2 is not a life being, because he was born a year after the will) A2 is invalid. A1 is also

invalid. A still has life estate.

O conveys to A for life, then to the children of A who reach age 25 (violation) so you

strike it out. A has life estate O has reversion in fee simple.


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O to A so long as liquor is never sold, then to B. A hasFSD. (strike out then to B)

O to A but if liquor is ever sold, to B. left with FSA. (strike out but if liquor is ever

sold to B)

T devises, to my executor as trustee when the probate of my will is completed. Trustee

has a springing interest.

D. Effect of Violation of RAP

Wedel

- If there is even a possibility an interest will not vest, it is stricken from its inception.

Example: O conveys to A so long as liquor is never sold, then to B

- A has FSDSEL, B has executory interest.

- Court would strike Bs executory interest and leave A with FSD

Example: O conveys to A on the condition that liquor is never sold, but if it is then to B

- A has FSSEL, B has executory interest - Strike Bs interest, leaves A FSA.

Brown

- FSDSEL, gift is stricken from RAP, reverter still exists, T owns fee simple at time of

death, transferred a FSD at death, reverter goes back to Ts heirs

E. Options to Purchase Property and RAP

Symphony Space

- Option Ks to purchase property are subject to RAP

F. Amelioration

NY Law

(1) Presume that grantor intended estate to be valid

(2) Anyone alive at the time of transfer presumed to be life in being

(3) Presume contingency will occur within 21 yr. period

(4) Males are capable of procreating 14 and up, Women 12-55

(5) No children by adoption

CA law maintains common law presumption of lifetime fertility

G. Construction ?


20/49

T devises to A for life, then to the children of A who reach age 25. At time of conveyace

A had 3 children. Under classical application of RAP. (however if interpreted reasonably, A is

50, T was very close with A and the children of A perhaps a reasonable interpretation is that T

intended the class gift to include only A1, A2, and A3.)therefore no rule against perpetuities.

(If we close of the class to prevent an afterborn)

-nder cassica a%%ication t*ere is ioation of 'A.

-nder construction we cose off t*e cass and eac* %erson is a ifein bein$ (based on added facts in %arent*esis 3)

Singer

- Unreasonable to assume that a building would be completed after the 21 yr. period;

construction in the interest of business, therefore no violation of RAP.

Wait and See Doctrine

- Hindsight approach as opposed to a foresight approach

- Wait and see if interest vests before deciding that it potentially will not vest within the

period

Hansen

-option contract with no limitations.

indsi$*t a%%roac*.

5ait and see doctrine was a%%ied.

o Cassica6 it ('A) was ioated.

Policy: to avoid putting a premium on a skilled draftsman

H. Cy Pres (changing terms of instrument to avoid perpetuities problem)

- Allows court to modify a gift as closely as possible to the intent of the grantor in orderto circumnavigate the RAP.

C*an$es *os%ita to free *os%ita. C*arit6 to c*arit6 isnt sub7ect to

'A.

Chun Quan

- Instead of 30 yrs., court changes language to 21 years to avoid RAP (illustration

of Cy pres)

21 fro, 80 is o+a6. 9ut 21 fro, :: not rea6 reasonabe.

Construction vs. Cy Pres Construction is interprets the gift (trying to guess the intent of testator when

dead)

Cy Pres changes the terms

I. Uniform Statutory Rule Against Perpetuities

CA Probate Code Non-vested property (contingent) interest is invalid unless:


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a) it vests/terminates within 21 years of a life in being OR if thats violated look at

B.

b) it vests/terminates within 90 years after its creation (wait and see hindsight

approach)

c) t*e6 can c*an$e it.

90 years is about as long as a trust can endure

Too difficult to figure out a measuring life

CA code also codifies Cy Pres

J. Abolition

Many states (i.e. Delaware) have abolished RAP, meaning a trust in such a jurisdiction

may endure forever

K. Perpetuities Savings Clause

Construction, Wait and See, and Cy Pres are all ways to alleviate the adverse traits ofthe RAP. The perpetuities savings clause is a prophylactic measure that a lawyer can take to

eliminate problems arising under RAP.

"*is trust s*a end; and assets distributed to t*ose beneficiaries

aie 21 6ears after t*e ast na,ed beneficiar6 of t*is trust. (causeincuded in cone6ance/deise)

L. Lawyer Liability (CA)

Lucas v. Hamm - Lawyer is not responsible for violation of the RAP when a beneficiary is stricken of

benefits from an instrument.

VII. ACQUISITION OF REAL PROPERTY BY GIFT OR PURCHASE

A. Contracts and the Statute of Frauds Requirement

1) Need a writing

2) Signed by the party to be charged

3) Material TermsParties, Price and Locus of Property

ABC

Doesnt need to be a formal document (Back of check)

Just needs to be in writing, signed by the party to be charged

Parties, Price & Locus of Property

B. Exceptions to the Statute of Frauds Requirement


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Part Performance

Bradshaw

Can you modify an oral K by part-performance?

- Yes, but must show substantial performance

1) Improvements (substantial, permanent)

2) Possession

3) Payment (though payment alone will not suffice)

Burns

Changing ones mind is not actionable

Selling ones business not unequivocally referable to K

Equitable Estoppel

Reliance by contractor, wrongful conduct by seller

Equitable Estoppel prevents seller from making an argument with the statute of frauds,

based on his wrongful conduct that induced contractor to act on his severe detriment

C. Marketable Title

Unless otherwise specified, every contract for sale of real property contains the implied

covenant of marketable title

Marketable title must be free from reasonable doubt (hazards of litigation)

1) Seller actually must own what he purports to sell

2) No encumbrances on the property (i.e. charges, outstanding liens, covenants)

3) No violations of law

Time to Deliver Marketable Title

Must be delivered before escrow closes

Kimball

- If seller has outstanding lien with IRS, but settles with IRS after escrow closes, buyer

not entitled to rescission, could get any damages resulted

Time is of the Essence Clause

Prevents extension of escrow period; can also put in a definitive law day

D. Risk of Loss

Who is liable when damage occurs to property in escrow?

Ross


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Split of Authority

- Risk on Sellerbecause seller would likely have insurance

- Risk on Buyerdoctrine of equitable conversion

Vendors interest has been converted by the contract from realty into personalty

E. Deeds

Essential elements of a valid deed: (IPADDS)

1) Identify the parties

2) Describe property

3) Signed by the grantor

4) Delivery to grantee

5) Acceptance by grantee

Statute of Frauds: Description of the Property

Snyder

- all property in this county is sufficient as a description of the property for statute of

frauds (i.e. Mother Hubbard Clause)

Statute of Frauds: Signature of Grantor

McAbee

- The Law recognizes that someone can sign on behalf of a grantor

- Court looks to the intent of the grantor, no technicality standing in the way

Delivery

Johnson v. Ramsey

- Delivery requires a manifestation of intent to transfer property interests

- No delivery without intent

Hypo

- OA, doesnt tell A, but tells acquaintances

Yes, sufficient evidence of intent to constitute delivery - OA, executes deed, doesnt tell anyone, tells only B, its a secret

Arguably no delivery, no sufficient intent

Delivery: Revocable Deeds

Huber

- If it was a revocable deed, then there is no transfer of ownership

- Oral agreements do not satisfy statute of frauds


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Revocable Escrows

No jdx. recognizes a revocable escrow

Rosengart

- A leaves deed with banker (escrow agent) revocable escrow

- But, deed is a gift, escrow requires business transaction

Oral Conditional Delivery

Oral condition generally will not satisfy delivery as a violation of the statute of frauds

Sweeney

- MauriceJohn, then JohnMaurice (Secretly)

- Oral condition, that John die first, but Maurice died first

- Court does not recognize oral conditional delivery because it is in violation of the

statute of frauds

Acceptance

Generally it is presumed that the grantee accepts a deed unless deed is a White

Elephant, i.e., property that nobody wants.

F. Warranty Deeds

There are 6 covenants of title necessary for general warranty deeds and special warranty

deeds:

Present Covenants

1) Grantor must be in SeisinGrantor owns the estate

2) Grantor must have a right to convey

3) Covenant against encumbrancesNo outstanding rights that diminish the value

Future Covenants

4) Quiet enjoymentGrantees enjoyment and possession not interfered with

5) General Warrantydefend title against the lawful claims of all others

6) Further Assurancesobligates grantor to execute any documents necessary for the

grantee to perfect his title

General Warranty Deed vs. Special Warranty Deed

- Assures that neither grantor - Only grantor warrants

nor anybody else has violated


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any of the covenants

Timing of Breach

Present covenants are breached, if at all, before escrow closes

Future covenants are breached whenever there is a breach

Brown v. Lober - Seller transferred rights by general warranty deed

- Breach of one present covenant, but P waits too long to remedy

- Tries to sue for violation of quiet enjoyment future covenant

- No violation because there is no actual or constructive eviction

Suit By Remote Grantee

Present covenants generally do not run with the land

Schofield

- OA fee simple by general warranty deed

- O was not in seisin at the time of delivery

- AB by special warranty deed

- B cannot sue A because of special warranty deed, and A did not create the problem

Split of Authority

- B can sue O, A transferred all of his rights to B including right to sue O for breach of

covenant of seisin (Modern)

- B cannot sue O because covenant of seisin is a present covenant (CL)

Nature of Encumbrances

For covenants of title, violations of law regarding property are not considered

encumbrances.

Merger

A deed delivered and accepted as complete performance of a contract for the sale of

land merges all prior negotiations and agreements into the deed.

General and Special Warranty Deeds

A deed can specially warrant certain provisions and generally warrant other provisions

within the same deed.

Quitclaim Deeds

Quitclaim deeds contain no covenant of title. I give you all that I have, and I may have

nothing


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Prevalent with regard to gifts

Estoppel by Deed

If OA but does not own the land, then O subsequently comes into possession of

land, doctrine of estoppel by deed prevents O from claiming right to the land which he

previously conveyed by deed

Estoppel by deed typically not applicable with respect to quitclaim deeds

VIII. RECORDING STATUTES

OA, then later OB who owns the property? A or B

CLFirst in time is first in right

But Modernly

Three Types of Statutes

1) Race Statute Jdx. (Typically more efficient)

2) Notice Statute Jdx. (Typically more fair)

3) Race-Notice Statute Jdx.

A. Race Statute

Whoever records first prevails, but B must be a Purchaser For Value

Schuman

- Even if B knows of prior conveyance, in race statute jdx., doesnt matter

B. Notice Statute

B will trump A if B is subsequent Purchaser For Value and B has no notice of prior

conveyance. If A records first, constructive notice, and A prevails. Policy: to rely on public

records.

C. Race-Notice

In order for B to prevail, B must be subsequent purchaser for value, must have no

notice, and must record first.

Zimmers Rule

OA (R) (1/10); OB (R) (1/11); BC (R) (1/9)

C must record first, and everyone else in the chain must have recorded


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C will be protected in Race-Notice statute

D. Actual Notice

A Bona Fide Purchaser for Value cannot have actual physical knowledge of prior

conveyance.

E. Constructive Notice

Record Notice A records first, B has constructive notice (Policy, make people vigilant

about their property interests.

Inquiry Notice B has actual knowledge that would put a reasonable person on inquiry

Harper

- OA for life then to As children

- Deed is lost, Os heirsA in fee simple in replacement deed

- Recorded deed references original deed, thus A on Inquiry Notice

F. Latent Defects

Leeds

- Faulty deed not apparent from 4 corners

- Notarized anyway and recorded, serves as constructive notice even though faulty

G. Not Recorded or Improperly Indexed Deeds

Throckmorton

- Deed given to recorder, recorder fails to record accidentally, who wins?

- Authority split:

Not As fault, A wins

A should have checked to make sure it was recorded, B wins

Compiano

- B wins because deed was indexed improperly and B had no constructive notice

- Authority Split:

Some Jdxs, index is not part of statutory scheme

Idem Sonans

Miltonvale

- OJohnson, deed recorded as Johnston

- OX, X does title search under Johnson, cant find deed

- Has constructive notice because title searcher has a duty to find sound alikes

Forged Deeds


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Diimel

- If Welch had forged, defeats deed and subsequent deeds

- but Welch had engaged in Fraud in the Inducement

- Can cancel deed between Diimel and Welch, but Bona Fide Purchase for Value wins

H. The Consideration Requirement

To be protected under a states recording statute, B must be a subsequent purchaser, not

a donee

Valencia

- B must be a subsequent purchaser

- B must invest money, or moneys worth of consideration

How much is valuable consideration?

Anderson

- What is considered valid consideration?

- Peppercorn theory does not apply, $10 and other valuable consideration not significant

for purchase of property

- Policy: Court does not want to encourage peoples property being taken away

Daniels v. Anderson

- O-A then O-B, B continues to make payments, later knowing about A

- 3 Potential Remedies

1) Award land to A, B has right to recover payments (prior to notice), pro tanto

2) Award B fractional part of land (create tenancy in common)

3) B to complete purchase but pay remaining payments to A

I. Title Searches and Indexes

Wild Deed (Stray Deed)

- A deed outside the chain of title

- Does not impart notice on a subsequent purchaser (not in Race Jdx., and not in Notice

Jdx.)

Grantor-Grantee Index

- Organized by name of grantee and grantor

Tract Index

- Organized by legal description of property and all transactions associated

Blake v. Graham

- Executors to Kitner deed is a wild deed, no notice, thus B prevails


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J. Deed Recorded Before Grantor Secured Title

Richardson

- O-A, when O does not own the property, B-O, then O-B

- B is rightful owner of the property because he was a BFP

- The deed recorded in 1899 was not constructive notice because B did not have to do a

title search before 1904.

Split of authority, some Jdxs require subsequent purchaser to check back in chain of

title before any grantor in title acquired the property.

K. Prior Deed Recorded Late

Rolling R. Constr.

Prior deed recorded late is considered a wild deed

Split of authority, some Jdxs say that a prior deed recorded late is within subsequent

purchasers chain of title

L. Deed Out From Common Grantor

Moore v. Center

- Clause in the deed gave B notice, thus B is not a BFP and will not be entitled to the

property.

Split of authority, deed out from a common grantor does not impart notice to a

subsequent purchaser of the retained servient estate

M. Shelter Rule

Shulte

- If grantor is a BFP, grantee inherits perfect title, prevents stagnation of title

IX. SECURITY INTERESTS IN REAL PROPERTY TRANSACTIONS

A. Mortgages

Security interest in property to insure mortgagee against default by mortgager, after

default, mortgagee must use the judicial process to recover

Mortgagor = Borrower, Mortgagee = Lender

CLEquitable Redemption: Buyer used to be able to remain in possession after the

law day by paying off the difference before a home is sold offbut it lead to injustices


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ModernlyForeclosure: Bars mortgagor from exercising right of redemption,

mortgagor is allowed to buy back the property after it is sold in foreclosure

B. Deeds of Trust

Three parties involved: Mortgagor, Mortgagee and Trustee (who holds title)

No legal proceedings after mortgagor defaults, trustee can just sell the property - Trustee must notify mortgagor, if no remedy within certain time sale

Murphy

- Power of Sale Mortgage (similar to deed of trust)

- Trustee has fiduciary relationship with mortgagor and has a responsibility to get the

highest price possible for the property in sale

C. Installment Land Sale Contracts

CL rule, no deed until total payment completed, just a contract

No buildup of equity

Default immediately terminates agreement

Vendor = Legal title in trust; Vendee = Equitable title

Split of Authority

1) Treat land sale contracts as they are (Burgess)

2) In the interest of equity have to treat it like a mortgage because of the vendees equity

buildup; vendor has to enact a judicial foreclosure and get a fair price based on sale (Bean)

D. Priority of Creditors

With a foreclosure on a junior mortgage, the buyer takes to the senior mortgage.

With a foreclosure on a senior mortgage, the junior mortgage is wiped out because of

risk

E. Matters of Personal Liability

Ant-Deficiency Statutes

In anti-deficiency statute jdx.s, banks cannot go after borrower for deficiency in loan

repayment after sale of property

Bank of Sonoma

- Deficiency judgment against buyer (traditionally), now no way

Assumption of Mortgage

Burbank


31/49

- O-A (encumbered by mortgage)

- A sells to B (B assumes property and payments on mortgage)

- B defaults?

If B assumes mortgage, the B is liable to the bank

If B takes subject to mortgage, B is not liable and bank eats it

X. LANDLORD TENANT RELATIONS

A.In General

Kramarsky

- Landlord may not discriminate on race, creed, color, national origin, disability or

marital status

- Anything else, however, is within landlords discretion

Fair Housing Act of 1968

U.S. v. Starrett City

- A landlord cannot discriminate even without an ill motive

San Fernando Valley

- Government cannot impose Fair Housing Act on roommate selection

- Violation of intimate association right of the Constitution

Civil Rights Act of 1866

Shaare Tefila

- Jews are considered a distinct race for the purpose of the Civil Rights Act of 1866

1982

B. Types of Tenancies

Term for Years

1) Definite beginning and end to lease (does not have to be for years)

2) Fixed in advance

Tenancy at Sufferance

Tenant holds over after a lease expires, continuing to pay rent and landlord accepts

Split of Authority: Terms of Lease

Craig Wrecking Co.

- Tenancy at Sufferance is temporary, terms from old lease carry over unless otherwise

stated


32/49

- Note: an informal lease for longer than a year is a violation of the statute of frauds

Crechale

- Tenancy at sufferance, terms could be on month to month periodic tenancy created

Tenancy at Will(Express or Implied)

1) No Definite Term

2) Right of either party to terminate it by proper notice

Periodic TenancyNo definite time, fixed price, terminable at expiration

1) Termination

a) CLNotice supplied must be the same as the period of the tenancy, but not to exceed

6 months

b) Modernly30 days

c) Split of authority for untimely noticeEither nullity or carries over to next period

C. Tenant Duties

Must pay rent, must not commit waste

1) Waste

3 Types of Waste

- Voluntary Wastevoluntary destruction of property

- Involuntary Wastefailure to act results in destruction of property

- Ameliatory Wastetenant destroys property, results in appreciation of property (L has

no cause of action)

In some jurisdictions waste will forfeit tenancy

Law of Fixtures

- If T fixes a chattel to property (like a bathtub) during a lease, becomes the real property

of L. T will be liable for any damage in attempt to remove fixture.

- However if chattel is removable (AC), but L still claims ownership of fixture, T will be

liable to L for the value of the fixture

2) Pay Rent

CL ruleT duty to pay rent is absolute

a) Relief to Ts from CL Rule

Frustration of Purpose

L-T relationship is contractual, T is relieved of duty to pay rent because of impossibility

to deliver performance of K


33/49

If only a portion of the building is leased, total destruction of the property relieves T of

obligation to pay rent

D. Landlord Remedies

CLL can resort to reasonable force for remedies with Ts default

Modernly? Split of Authority

- MajorityNo self-help for landlords; must use judicial process

- MinorityYes self help, but by peaceable means, without any foreseeability of

violence

E. Mitigation Requirement

If T defaults on duties, does L have a duty to mitigate (i.e. find a replacement tenant), or

can he simply sue T? Split:

Majority: when T surrenders lease (implicit or explicit), L has a duty to mitigate.

Damages will be reduced by the amount L could have secured if mitigation had been attempted,

or cause of action will be totally lost.

Minority: L can simply sue T for damages

F. Landlord Duties

1) To Deliver Possession

a) American Rule

- Legal Possession onlyi.e. no obstacles to possession

b) English Rule

- Legal Possession &

- Actual PossessionL must actually physically let T into the property

2) Maintain Common Areas

L must keep reasonably safe conditions in all common areas or else he will be liable for

any resulting injuries

3) Disclosure of Latent Defects

L must disclose all latent defects within the property

Anderson

- Sinks were continuing to break throughout the building

- L knew or should have known about this latent defect, is liable for injury


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4) To Not Breach the Covenant of Quiet Enjoyment

a) CLLandlord will not interfere by any affirmative act or omission with tenants

peaceful enjoyment of the leased property. Must have a duty to act either in law or in lease.

b) Modernlyany affirmative act or omission that substantially interferes (totality of

circumstances) with the tenants quiet enjoyment breaches covenant, irrespective of duty.

c) Constructive Eviction

Remedy if T vacates in a timely manner (ToS)

T can sue for damages and/or enjoy benefits of constructive eviction (not having to pay

rent any longer)

Reste (Leaky Driveway into business)

- L failed to act when there was a duty to act

- Duty could be maintenance of the common area/latent defect etc.

- Could also be breach of implied warranty of habitability -More Expansive View: so long as L has power to remedy

5) Duty to Provide Habitable Premises: Implied Warranty of Habitability

Landlord must deliver and maintain premises which are safe, clean and fit for human

habitation. Premises must generally be residential and violations must be major.

SOA

Most jdxs recognize IWH, of those that do, many do not recognize it for single family

houses

Also rarely applicable in commercial leases

At CL, there was no implied warranty of habitability, any problems arise should be

fixed by tenant

GreenCL rule abolished, Policy:people generally dont have the skills to fix

everything on the property anymore, more people renting in cities, apts. Etc.

6) Duty to Provide Habitable Premises: Illegal Lease Theory

L breach of duty allows T to stay without paying rent

However, DC court says it is not valid if problems arise after the signing of the lease, in

which case landlord will be entitled to fair rental value of residence.

G. Transfer of Tenants Interest

1) Assignment (Vertical Privity established between L and T1)


35/49

Lessee parts with whole term or interest and retains no reversionary interest in lease

L can hold T1 liable for all covenants T was originally liable

Burden/benefit of covenant runs with land assuming satisfaction of all other elements

Assignment destroys privity between L and T, new agreement between L and T1

T remains secondarily liable to L (L and T privity of K)

2) Sublease (Privity not established between L and T1)

If there remains a reversionary interest in the original lessee

T is liable for any covenants breached by T1, (L and T privity of estate and K)

L cannot sue T1 in law, but in equity (i.e. injunction, not damages) (burden of covenant

not running)

T1 can sue L for monetary or equitable damages if T breaches any convenant (benefit of

covenant running)

3) Landlord Permission for Transfer of Tenants Interest

CLL can withhold consent for any reason

Moderncan only withhold for commercially objectionable reason, consistent with

good faith and fair dealing

H. Landlord Liability in Tort

Sargent

- Under CL, L had no duty of care

- Modernly, L has a duty of care and can be liable

- Policy: to insure that L will take whatever precautions are necessary under the

circumstances to reduce the likelihood of injuries from defects in his property

I. Exculpatory Contracts

A and B agree that B will not hold A liable for injuries B suffers because of As

negligence

Some jdxs exculpatory contracts are valid with regard to L and T agreements (i.e.

freedom of K)

Some jdxs exculpatory contracts are not valid (Tunkl)

Contrary to public policy

J. Retaliatory Eviction

L evicts T because T has exercised a right, it is a nullity


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K. Rent Control

Pennell v. City of San Jose

- L can increase rents within a reasonable amount

- Ts economic hardship can be considered, though it doesnt have to be

- No violation of Due Process because purpose for rent control is protection of consumer

welfare, which is not arbitrary, discriminatory, or demonstrably irrelevant to public policy

- No violation of equal protection clause if rationally related to legitimate governmentinterestminimal scrutiny test

XI. SERVITUDES: EASMENTS, PROFITS, AND LICENSES

Servitude is a private land-use arrangement

A. Easements

An easement is an interest in land, and therefore when granted must comply with theStatute of Frauds (Dyer, easement in gross left by devise to build on property, violation of

Statute of Frauds)

Easements always run with the land

Servient estate must permit something to be done upon the land

Example: Black owns Blackacre (servient estate), White owns Whiteacre (dominant

estate), if B grants W the right to walk across B/A to get to a public highway, B has granted W

an easement

Easement Appurtenant

Benefits dominant estate and must be attached or related to dominant estate, servient

estate burdened

Easement In Gross

Personal right to use anothers land, generally inalienable unless intent of parties is clear

Servient estate only, no dominant estate

Policyfavoring free alienability of land

1) Creation by Express Grant

Must comply with Statute of Frauds 3

Some jdxsCan reserve an easement (create interest in 3rd person, or for himself),

with the exception when there is a pre-existing interest (Willard)

A testator must describe the easement with reasonable certainty in order for the

easement to be valid upon devise (Dyer)


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2) Creation by Prescription

Actual Entry, Open and Notorious, Exclusive (excluding the public, but sharing with

the true owner), Continuous, Hostile, Under Claim of Right

Burden of proof lies with servient estate to prove that use was permissive if challenging

easement

Difference between Adverse Possession and Easement by Prescription

- A.P. Possess the property, improve it, live on it etc.

Exclude all others from use

- E.P.

Entitled to USE only

Can be shared with true owner, but not with general public

3) Creation by Implication: Prior Use (COQNAC)

a) Common grantor

b) Of physical part only (grantor kept a part)

c) Quasi Easement

d) Necessity (Reasonable or Strict)

e) Apparent (reasonably discoverable by next owner)

f) Continuous prior to severance

Norken, easement does not end when necessity ends

Policy: when one conveys property, he includes or intends to include whatever is

necessary to the beneficial use and enjoyment of the land

4) Creation by Implication: Necessity

a) Common Grantor

b) Of physical part only

b) Strict necessity of the easement (i.e. impossible without it)

Mere non-use will not terminate an easement by necessity (or any easement)

- Policy: Marketability of property

B. Negative Easements

Easements are negative when they convey rights to demand that the owner of the

servient tract refrain from certain otherwise permissible uses of his own land.

CL negative easements: (1) air; (2) light; (3) artificial streams of water; and (4)

subjacent and lateral support of buildings or land

Water Rights


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Riparian System: regarding natural water source, upstream owner can only make

reasonable use; improper use can be enjoined by downstream riparian rights-holders (eastern,

southern and mid-western states)

Prior Appropriation: first in time is first in right with regard to upstream/downstream

users, and must be put to beneficial use

Lateral Support From Adjoining Landowner A engages in excavation on his land causing a landslide on Bs adjoining property, A is

liable to B (Strictly Liableabsent negligence)

A engages in excavation on his land causing a building to collapse on Bs adjoining

property, A is liable to B only if A was negligent

Subjacent Support

B owns mineral rights underneath As surface rights land, removes subjacent support

causing a collapse of As land, B is strictly liable

B owns mineral rights underneath As surface rights land, removes subjacent support

causing a collapse of As house, if the subsidence still would have occurred even in the absenceof a structure, B is strictly liable for the harm to the land caused by the subsidence as well as any

harm to the artificial additions on the land that results from the subsidence

Peterson, if intent of parties is clear, negative easement for no obstruction of view is

valid

C. Transferability of Easements

1) Easements Appurtenant

Assuming transferee has notice, appurtenant easements run with the land

2) Easements in Gross

Transferrable, permitted the parties that created the easement evidence their intention to

make it assignable

2 or more people own an easement?

One stock, 2 owners need to agree on the use of an easement

D. Termination of Easements

1) Misuse alone will not terminate an easement, unless authorized use cannot be severed

from misuseinjunction until it can be severed (Penn Bowling Rec. Center)

2) Abandonment by owner of servient estate (a.k.a. Extinguishment by Prescription)

- Barring owner from easement (i.e. putting up a fence)

Abandonment may also be achieved by dominant estate

- Non-use coupled with manifestation of intent to abandon


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3) End of term for the easement

Merger of Dominant and Servient Estates, or Dominant estate executes a writing

relinquishing servient estate

E. Profits

Profits allow owner of profit to go onto the land of another and extract produce of theland (i.e. right to fish, right to graze cattle etc.)

All the same rules apply except there are no prescriptive profits in gross (bad policy,

depletes the underlying fee) and there are no negative profits

F. Licenses

1) Unlike profits and easements are not interests in land

2) Totally revocable, need not comply with the Statute of Frauds

3) Licensee cannot assign rights, rights terminate with the death of the licensor or if the

licensor conveys the servient estate

G. Irrevocable Licenses

1) License can be made irrevocable through equitable estoppel

Split of Authority

$ Spent/Laborlicense irrevocable so long as necessary

No irrevocable license granted

2) License can also be irrevocable when coupled with an interest

Example: sale of already mined coal sitting in a car on land grantor grants license to

come onto the land and pick up the coal, irrevocable license

XII. SERVITUDES: REAL COVENANTS AND EQUITABLE SERVITUDES

A. Real Covenents(Applied when Plaintiff seeksDamages)

Covenantsare promises whereas Easements are grants. Easements always run,

covenants only run under specific circumstances. Covenants do not necessarily have to be in the

same deed, but they must be part of the same transaction (Sonoma Development Inc.)

1)Are we addressing the issue of the running of the burdenor the benefit?


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Person is trying to resist promise, and he is not original partyBurden

Person is trying to enforce promise, and he is not original partyBenefit

A Burdenwill run if the following elements are satisfied:

(1) Form of Covenant (i.e. Statute of Frauds) (Note: Not in all Jdx.s)

(2) Intent for the covenant to run (3) The covenant Touches and Concerns the land

(4) Vertical privity exists

(5) Horizontal privity exists

NoticeMay be issue with recording statutes

A Benefit will run if the following elements are satisfied:


(2) Intent for the covenant to run

(3) Touch and Concern

(4) Vertical Privity

It is easier for benefits to run because Benefits do not impede the marketability of

property

Elements

1) Form(i.e. Statute of Frauds) (3 Elements or IPADDS?)

Authority Split

a) Covenant must be in writing and signed by the party to be charged because it involves

an interest in landalso serves to impart notice

b) Real covenants not considered interests in land, no S.O.F. requirement

2) Intent to Run

Intent is to be determined by construction of the entire agreement

Rule in Spencers Case (i.e. heirs and assigns necessary)

- ModernlyProbative only, not necessary

3) Touch and Concern

Must be a logical connection between the benefit to be derived from enforcement of the

covenant and the property itself

Dean Bigelow Test

Burden Siderestricts rights to land/reduces value

Benefit Sideincreases landowners rights/value

- Typically money paid for a benefit does not touch and concern the land (Neponsit)


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4) Vertical Privity

Person presently receiving benefit, or bearing the burden, is a successor to the estate of

the original person so benefited or burdened

Estate transferred must be of same quantum

5) Horizontal Privity

The covenant must be part of a transaction that also includes the transfer of an interestin land that is either benefitted or burdened by the covenant

Can be a transfer of a different quantum of estate

B. Equitable Servitudes(Applied when plaintiff seeks anInjunction)

A Burdenwill run if the following elements are satisfied:



(3) The covenant Touches and Concerns the land

(4) Vertical privity exists (Could be as loose as an adverse possessor)

(5) Successor must have notice of the servitude (actual or constructive)

A Benefit will run if the following elements are satisfied:



(3) Touch and Concern

(4) Vertical Privity

C. Subdivisions and Implied Reciprocal Negative Easements

In planned communities, implied reciprocal negative easements are enforceable based

on inquiry notice and if the deed is out from a common grantor (some Jdx.s), even if the deed

does not state the specific provision (i.e. Sanborn, cant build a gas station because all around are

single family homes, and certain deeds contain the provision)

D. Covenants in Gross

Covenant with no dominant estate, only a servient estate

Caullett

No enforcement of a covenant for a right of first refusal

1) Too vague/obscure

2) Does not touch and concern the landpersonal promise

3) Burden will not run unless benefit also runs


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4) Grantor owns no land

- If benefit is in gross, burden will not run

E. Termination of Covenants

In order to terminate a covenant, one must prove one of the following elements:

1) Abandonment A covenant has been abandoned when it has been habitually and substantially violated

2) Laches

Sitting on ones rights too long

3) Estoppel

Misleading conduct which would cause reasonable reliance and injury

4) Changed Neighborhood Conditions

Neighborhood has changed enough so that benefit no longer applies

5) Public Policy Considerations

Interests in the public that necessitate the termination of the covenant

XIII. NUISANCE

Something that affects health, safety, offends the senses, violates decency, or obstructs

the comfortable use of property

A. Public Nuisance vs. Private Nuisances

Public nuisancesaffect the public at large; one must bring suit to city attorney in order

to get an injunction

Private Nuisances only affect the individual or a limited number of individuals

- Two different classifications: Nuisances Per Seand Nuisances Per Accidens

1)Nuisances Per Se

A nuisance under any and all circumstances, regardless of location

i.e. Keeping massive amounts of explosives within a quarter mile of any town

(McAndrews) (Strict Liability imposed)

2) Nuisance Per Accidens (Nuisance In Fact)


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Nuisance because of the circumstances or location of the particular use

e.g. Odors, Noise, Lights etc.

Hutchens (jagged edge of carport was not a nuisance per accidens, P had no standing,

no interest in property)

a) Intentional Nuisance

i) Substantial

ii) Non-Trespassory

Modernly, matter can be trespassory, in which case, not negligence, but cause for

criminal liability

iii) Unreasonable

Split of Authority

a) Unreasonableweigh gravity of the harm against its utility

i.e.Learned Hand Negligence Test(majority)

b)Nuisance will exist even if there is social good (minority)

iv) Defendant substantially certain of circumstances

b) Unintentional Nuisance

Substantial

Non-Trespassory Invasion

Negligent, reckless, ultrahazardous

Morgan v. High Penn Oil Co.

- Before first complaintunintentional

- After first complaintintentional

B. Remedies and Defenses

Typically injunctions serve as remedies to nuisances; however

Boomer v. Atlantic Cement Co. (Gravity of harmNuisance; UtilityEmploys many

people; court offered permanent damages, i.e. damages run with the land)

Spur (If just developer, doctrine of coming to the nuisance applies and no injunction;however, several people living in the housing developments so court granted injunction, but

developer had to pay for Spurs moving costs)


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XIV. ZONING

Standards of Review

Test Means End When

Minimal

Scrutiny (Citizen

has B.O.P.)

Rationally

related to

Legitimate

gov. interest

Social;

Economic

Intermediate

Scrutiny (Gov. has

B.O.P.)

Substantially

related to

Important

gov. interest

Gender (EP);

(takings, no longer);

Racial Class (EP);

Alienage (EP)

Strict

Scrutiny (Gov. has

B.O.P.)

Necessary

for a

Compelling

gov. interest

Fundamental

Rights (Due

Process)

Zoning carves up a city into segments: sections for single-family houses; duplexes

commercial uses; and industrial uses.

Euclidian Zoning


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Village of Euclid

Is this zoning plan constitutional?

Yesa valid exercise of the police power, protect the citizens from nuisance

does not offend the 14th amendment

Minimal Scrutiny Testrationally related to government interest (nuisance control)

A. Expansion of Zoning

1) For Aesthetics

Berman v. Parker (Gov. acquired private property via eminent domain because

legitimate government interest is keeping citizens healthy, keeping city clean; expanded zoning

for housing development)

2) For Low-Cost Housing

Split of Authority

Mt. Laurel (People have a fundamental right to fair housing; triggers strict scrutiny; is

limiting town to wealthy people and industry necessary for a compelling gov. interest? No. NJ

Law)

Asian Americans for Equality v. Koch (Does not consider low-cost housing a

fundamental right. NY Law)

B. Limiting of Zoning Power

1)Non-Conforming Uses

A use that was legally in place at the time the municipality enacted legislation

prohibiting the use

Village of Valatie (holding that non-conforming use of mobile home not parked in a

mobile home park, with amortization period ending with the death of the owner does not violate

due process)

Split of Authority: 90 days or 30 years, arbitraryviolates due process


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2) Fundamental Rights

If a zoning power conflicts with fundamental rights, it will not be constitutional

Gilleo (hanging a sign with political view in an area zoned for no signs was held a

fundamental right; zoning restriction was unconstitutional)

XV. TAKINGS

No person shall be deprived of life, liberty, or property, without due process of law, nor

shall private property be taken for public use, without just compensation. (5th Amendment,

U.S.C.)

A. Physical Takings

1) Temporary Invasions

Temporary invasions do not violate due process, they are never takings

PruneYard Shopping Center (allowing people to petition and distribute literature at a

mall was not considered a violation of due process, even though it was a limitation of right to

exclude)

2) Permanent Occupations

Permanent physical occupations are always takings

Loretto (holding that a NY ordinance that stated landlords must let cable companies run

cable down the side of the buildings was a permanent occupation and constituted a taking)

3) Public Use Requirement

When the government completes a compensated taking, the use must be for the public,

i.e. not just physical use by the public (parks, etc.) but for public purpose

Kelo (holding that condemnation and payment of fair market value for private houses in

order to build a Pfizer headquarters constituted a public use)

B. Regulatory Takings

Government tells you you cannot use your land in a certain way. If regulation goes too

far it will be considered a taking.

1) Economic Wipeouts of the Whole


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Hadacheck (holding that prohibiting brick factory from making bricks in the middle of

the city was merely nuisance control and thus not effective as a regulatory taking)

Lucas (prevention from building on a beach front property denies owner all economic

or productive use constitutes a regulatory taking)

a) Nuisance control is never a taking b) Total economic wipeout is a taking (must be total)

c) Nuisance must be a common law nuisance

2) Economic Wipeouts of a Part of the Whole (Conceptual Severance)

Split of authority:

Mahon (complete wipeout of the estate of the mineral rights only constitutes taking)

Bituminous Coal (wipeout of mineral rights does not constitute a taking with regard to

the whole estate)

Tahoe (32 month closure not considered a taking; not weighed against the 32 months,

but infinite time)

3) Ad Hoc Analysis Approach (Penn Central) (DCADE)

a) Distinct investment backed expectationsextent to which regulation interferes, i.e.

return on investment

b) Character of governments action - Balance legislative burden w/ benefit to society

c) Average reciprocity of advantage

- Decision is not arbitrary (i.e. Landowner is not being singled out) and/or Landowner is

benefitting from the regulation

d) Diminution in Value (economic impact)

- diminution alone not a taking, greater diminution, greater probability of taking

e) Existence of Transferrable Development Rights

- factor against a taking

4) Middle-Tiered Scrutiny Approach (EXTINCT) (Cannot apply middle-tiered scrutiny

approach to regulatory takings)

a) Lingle

- Abolishes middle-tiered scrutiny approach for regulatory takings


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- Use either Total Economic Wipeout Approach (Lucas) or Penn Central analysis (i.e. Ad

Hoc Analysis)

5) Timing Matters

a) Palazzolo

- A successor to property can challenge a regulatory taking even if the prior possessor did

not challenge the regulatory taking - Cant put a statute of limitations on the Fifth Amendment

6) Inverse Condemnation and Remedies

Typically, gov. will attempt to secure a parcel of land by purchase; landowner agrees,

gov. takes property; if landowner does not agree, gov. exercises eminent domain power.

Inverse CondemnationIn regulatory takings area, landowner files suit against gov.

for going too far with the regulation, constituting a taking.

Remedies

- Before First English gov. would either revoke regulation, repeal the law in question, or

exercise eminent domain power and pay fair market value

- After First English, provided that there is a taking and all use was denied, gov. is

required to pay for all time use was denied

Contrasted with Tahoe which did not require payment for all time use was denied;

Tahoe was a cause of action, First English was a remedy

C. Exactions

Gov. allows landowner to build but only if the landowner first gives something to thegov. Does exaction comport with the Fifth Amendment takings clause? Yes if

1) Essential Nexus Test (Nollan beach front property, gov. sought easement)

There must be a logical connection between exaction sought and the anticipated harm

- and -

2) Rough Proportionality Test(Dollan, hardware store bikepath and greenspace)

Individualized determination that the required dedication is related both

in nature and extent to the impact of the proposed development

a) Government has the burden of proof

b) Government has to show that the exaction is actually going to be effective

D. Judicial Takings


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(NOTE:Not the law)

Stop the Beach

Court states that a court order can effectively act as a taking

- See PruneYard (shopping center)

E. Other Types of Takings

Ex Parte Brown

Lawyers services on behalf of an indigent litigant constitutes a taking under the Fifth

Amendment, and deserves reasonable compensation (not necessarily fair market value, but

subject to decision on a case-by-case sliding scale analysis)

Property Outline NS

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