Assignment 1: Right to Exclude Others (from private property
1. Owner of land owns a bundle of sticks/rights - not absolute a. May have some distinct rights but not others i. Right to exclude ii. Right to transfer iii. Right to use iv. Right to possess 2. Possession - the controlling or holding of personal property, with or without a claim of ownership a. Two Factors i. Intent to possess ii. Actually controlling or holding the property b. First in time, first in right i. Chronological first possessor has the better title ii. A good faith purchaser or adverse possessor can acquire title superior to those who came into possession earlier iii. Title from a thief is void title. c. Actual possession i. Mortal wounding gives a hunter right to possession (constructive possession) ii. Pierson v. Post(NY 1805)Post lost on appeal because he did not physically seize the animal before another. d. Constructive Possession - has the same effect in law as actual possession, although it is not actual possession in fact. 3. The Right to Exclude Others from Private Property (free use and enjoyment of land) a. Trespass to land i. Physical Trespass i. No harm need be shown - nominal ii. Intentional and brazen trespass onto private land. 1. Policy: $1 fine does not deter unlawful behavior (neither does $30 ticket) a. Protects private property rights b. Right is hollow if legal system has insufficient means to protect it 2. Distinguished from Bernard rule (libel): If no actual harm, no punitive damages a. Policy: distinguishable because there is actual harm -- can equal adverse possession 3. Jacque v. Steenberg Homes (Wisc. 1997) Mobile home trespass, when nominal damages are awarded for an intentional trespass to land, punitive damages may also be awarded at the jury's discretion. iii. Privileged entries cannot be held as trespass ii. Non-physical Trespass
Nuisance- An unreasonable activity or condition on the defendant's land that substantially or unreasonably interferes with the plaintiff's use and enjoyment of his land ii. "A nuisance may be merely a right thing in the wrong place, like a pig in the parlor instead of the barnyard." b. Trespass to chattel i. Must cause harm to be liable for trespass i. Hamidi v. Intel, emailing employees (Ca. 2003) -Trespass to chattels does not encompass an electronic communication that neither damages a recipient computer system nor impairs the functioning. ii. Majority: Electronic mail does not constitute harm iii. Minority: Supports injunction c. Trespass remedies i. Injunction: must show actual harm or high probability of future harm ii. Damages: actual and punitive i. Policy: don¶t want to bog down judicial system with claims that have no merit ii. Punitive damages can be awarded to deter unlawful behavior 4. Principal Problem: Carl leaning on Amanda's car even after being asked not to. State conclusions as to Amanda's cause of action. a. Having clean property rules can generally help avoid conflict. b. Broad or narrow interpretation of holdings c. Judges have choices« the law doesn't just change with the wind. d. Where is the line drawn? Most people don¶t care if their car is touched in a nonthreatening or non-harmful manner but most people would not have cared if Steenberg had taken the mobile home across their property either. The importance of the point of the law is whether it be real or personal property the state has the obligation to protect it. Carl was fine leaning on her car until she asked him not to do it anymore. At that point in time Carls leaning upon her personal property became a trespass upon personal property.
Assignment 2:The Right to Exclude from Semi-Private Property: Free Speech Rights vs. Property Rights
1. Sliding Scale: More it resembles public property, the less owner's exclusive right to land a. Policy: Rights of owner v. rights of individual i. Right to exclude limited if you let people live on your land ± you can't exclude everyone i. Property rights serve human values ± they are recognized to that end and limited by it(State of New Jersey v. Shack and Tejeras (NJ 1971) - Real property rights are not absolute;
and the necessity, private or public, may justify entry upon the lands of another) The more private property resembles public property, there is a counterbalance between expressional and property rights i. Marsh v. Alabama (1946) - paramount right of citizens to be informed overrode the rights of the property owners Owner: right to exclude most valuable in bundle of sticks, loss of business Free Speech: have lost public forums, they too are invited on the property, chilling effects negative, bad to discriminate as to what the speech is when generally protected Good rule: if there are limitations ± one day a year, etc. Schmid Test - Three prong test to see if free speech is protected () i. What is the normal use of the property? ii. What is the extent of the public¶s invitation? 1. Smaller shopping center, not free speech? iii. What is the nature of the visitors¶ activities in relation to the owner¶s use? 1. Cannot be an interference with the landlord's profits or shoppers enjoyment (reasonable) 2. Time, place and manner restrictions 3. FACE - Free Access to Clinic Entrances iv. NJ Coalition v. JMB Realty (NJ 1994) - (represents minority view)The extent of free speech rights on private property depend on the nature of the use of the property, the extent of the public invitation to use that property, and the purpose of the speech activity in relation to the use of the property.
2. Principal Problem: Furnish an opinion that the pro-life people have no right to remain on the premises of this complex in which Dr. Land, an abortion doctor and also your client, maintain an office. a. State an authority that has a strong policy reason behind its decision b. To what extent does the content of the leaflets and the purposes of the leafletters in relation to the nature of the business conducted on the private property influence the holding of NJ Coalition v. JMB Realty? c. Depends almost completely on the distinction or type of premises. In NJ it has to be a regional mall or something similar and the courts draw a pretty bold line there. In most other states the cts. Don¶t even make the distinction. d. Shopping center probably wins in this case on the distinction of premises argument.
Assignment 3: Landlord-Tenant: The Right of Exclusive Physical Possession
1. Leasehold Estates a. Landlord: Reversionary interest
b. Tenant: Present possessory interest c. Types of common law tenancies iv. Tenancy (estate, term) for years: i. Fixed period ii. Automatically terminates at fixed ending iii. Death of LL or tenant does not terminate lease (unless in a JT or TIC of TBE, then majority holds you would need consent of both/all or your interest would end with death of who gave you the interest) v. Periodic tenancy: i. Automatically renews if no one does anything ii. Must give notice to terminate 1. Common Law: for year to year, 6 months notice, for other, a full period notice 2. Less than one year not subject to the statute of frauds iii. Death of LL or tenant does not terminate lease (unless JT or TC or TBE) vi. Tenancy at will i. Either party can terminate at any time ii. Death terminates lease vii. Tenancy at sufferance i. When someone is wrongfully on the property and get a notice before being kicked out ii. Usually someone who had a lease and overstayed viii. Policy i. Death: parties have come to rely on lease for particular time (time tenancies not terminated w/ death) 2. Lease v. License a. Lease - a contract and a conveyance i. Possessory interest in land (+ contract law) ii. Generally transferable iii. Lease generally specifies specific area iv. Sometimes a lease leads to exclusive possession of land, and sometimes a right to exclusive possession of land leads to a lease (or a lease has been created) v. Beckett v. City of Paris Dry Goods(Ca. 1939) - An agreement to permit the operation of a business in a store in an unspecified area is a lease where the parties act upon it so as to relate to a specific place and use the leasehold terminology in the writing b. License - authorizes the licensee to use land in the possession of another i. Permission to USE or OCCUPY (w/ consent of owner) i. Not lease - NO possessory interest in the property ii. Football game, hotel room, etc. ii. Generally not transferable iii. License generally does not specify particular area iv. Based on contract law, not property law
Interference at the Commencement of the Lease i.The State Department of Real Estate is attempting to regulate the Resort on the theory that Resort is leasing real estate. Claim? i. being an estate. Landlord Duties/Liability a. but not dispositive ii. but lack of a lease does not lead to lack of an exclusive possession of land (reluctance towards license if create injustice) Policy: want to enforce based off actual terms of the contract. Minority (American rule): LL is not required to deliver actual physical possession i. they are not responsible for 3rd party before the lease begins ii. not what they call it i. not leases. and profits involve only right of use. Remedy: Tenant is excused from paying rent for the period in which they are unable to obtain actually physical possession. Look to the language. not leasehold.Right to operate commissary at airport mere "usufruct" or license. 1979) . Liability through breach of contract Practical context (intent) must not be overlooked i.
vii. What is the difference between a license and a lease? a. Policy: Since the landlord is not responsible for trespassers during the lease.
i. (Clayton County v. A leasehold. Majority (English rule): LL is required to deliver actual physical possession iii. Resort argues that it is exempt from regulation since it is merely offering licenses.A license agreement is formed when a tenant does not have exclusive possession or any interest whatsoever in the premises being leased Intent Lease v. License when the city of Phoenix imposed a 1% tax on i. gives the right of possession or occupation. Indefinite ± can end or be kicked out anytime ii. b. but look to actual use (Wenner) Wenner & Phoenix v. Lease/license may be created through intent/rights given lessee iii. easement. Licenses.
vi. ex: tax: state may want to term a lease so they can tax. Interference During the Lease Term i. The tenant has a claim against the landlord
. income derived from profit made by those that held lease agreements
3. though that may not give the right to terminate the lease b.v.
Interference with Actual Physical Possession and Quiet Enjoyment
1. All: Lease = tenant's legal right to physical possession of property ii. Principal Problem . City of Atlanta (1982) . Dayton-Hudson(Ariz. Lease generally sufficient to lead to exclusive possession of land.
occurs when the LL deprives the tenants of physical possession of some portion of the leased property. Olanoff (1977) . If the landlord interfered at the commencement of or during the lease 2. Leave? 1. including denial of access to the leased premises i. North Conway Bank (NH 1995) . Shapiro) . Echo Consulting v.The law implies a covenant of quiet enjoyment. If 3rd party (neighbors) interfere and are under landlord's control ii. RSP § 5 (Carner v. Smith v.tenants deprived of quiet use and enjoyment when LL leased property to a bar or cocktail lounge Covenant of Quiet Enjoyment . Constructive Eviction . Minority: Some have no other place to go.
ii. Remedy: Don't have to pay rent.
iii. McEnany (Mass. Now Duty: LL substantially interfered with tenants beneficial use or enjoyment iii. Majority: Have to leave to prove "truly evicted" 2. 1897) . The tenant does not have a claim against the landlord if 1. break lease iv. reduce (abate) rent.
1.changes in the physical condition of the premises which make them unsuitable for the use contemplated by the parties. Tenant entitled to enjoyment of entire property ii. Interference so extreme that reasonable person would not stay ii. against total abatement for partial actual).The encroachment of a structure upon a portion of a leasehold constitutes an eviction and a defense to the entire rental payment otherwise due. A wrongdoer interferes during the lease (in the absence of the landlords negligence) Partial Actual Eviction .i. if true constructive eviction. probably damages iv.breach occurs when the landlord substantially interferes with the tenants beneficial use or enjoyment of the premises. but situation is constructive eviction iii. injunction to tear down what evicts (not best option) iii. i. or one with paramount title would not evict ii. affirmative actions (damages). Remedy: not likely void lease (rest. possible reduce rent. If one with paramount title (over the landlord) interfered at commencement or during lease 3. v. someone under LL's control. Remedy: Not likely void lease.occurs when the LL so deprives the tenant of the beneficial use or enjoyment of the property that the action is tantamount to depriving the tenant of physical possession i. which obligates the landlord to refrain from interfering with the tenants possession of the premises during the period of tenancy
. Blackett v. Past Duty: LL.
Building code base line ii. but heat probably yes) d. what are the tenants remedies? b. Ex: standards for rent control and low income housing differ from base line iii. Doesn't include things which are unnecessary (air conditioning probably not. Tri-State stopped paying rent. When a LL breaches an express or implied covenant. Theresa used a small portion of the land for trash storage for several years until discontinued by the Health Department. Retaliatory Eviction: Landlord cannot evict tenant for reporting housing code violations
. Residential housing b. Knight v.2. Implied Duties . Introduction a. Theresa negotiated unsuccessfully for more space and then with the approval of Leo enclosed the said space. Standard may be higher or lower that building code i. What LL covenants. sometimes will benefit and sometimes hurt those it's designed to protect ii.
Assignment 4: Implied Landlord's Duties and Implied Conditions to Tenants Obligations
1. Policy approach: least cost avoider ± who would be in the better position to know (discourage frivolous litigation) e.A landlord's breach of the implied warranty of habitability of rented premises constitutes a defense to an unlawful detainer action even where the tenant remains in possession of the premises after the alleged breach c. Usage 2. Split: LL liable without notice i. The small portion being used was leased to Tri-State. Policy: Not allowing WoH to be waived causes LLs to raise rent and abandon cheap housing options (rent $ up). Policy: Otherwise tenant can bring suit years later for problem LL didn't know of (Knight dissent) ii. Questions i. Fundamental right: cannot be waived (even by staying on the premises) i. Principal Problem: Leo leased adjoining land to Theresa and to Tri-State Auto. Custom ii. Warranty of Habitability (beyond contractual promises) a.The law is protecting the reasonable expectations of the parties i. Hallsthammar (1981) . duties and promises are implied under different circumstances? ii. Split: LL liable if has reasonable time to fix the problem (Knight) i. Maintain property according to reasonable standard of habitability i. Discuss the rights of the parties. in sum.
Test for non-expressed promises 1. unfit for a medical office) ii. what remedies for tenant ii. Reduced (abated) rent 1. reduction in rent. Affirmative Action (type of damage. Contracted rent less value in the un repaired condition i. Amount usually determined by court i. Marini v. Encourages LL to fix promptly 2. In past: contracts between LL and tenant were "independent" and thus tenant required to pay regardless of LL's actions (only remedy was for breach of contract) 2. affirmative action (pay and sue LL) 1. Can be waived v. 2. Inwood North ( 1988) . If LL fails after notice then remedies v. Davidow v. Ex: LL breached through partial actual eviction (so don't pay on part you don't use) iv. repair and deduct. Fair rental value less the fair rental value of the un repaired condition i. Present: according to case and good sense.Implied covenant of habitability and livability fitness. Repair and deduct (I fixed it and am taking it out of rent) (Marini. Void lease 1. Contracted rent is only evidence of what fair rental value is 2. Must give LL notice so they have opportunity to fix 2. Temporary withhold rent 1. temporarily withhold rent. Dependant Contracts 1. Does failure justify termination of lease 3. Ireland (1970) . dependant and thus tenant can offset costs w/rent i. pay and sue LL ± limited by contract actions) 1. Pay long term lower rent and live with problem 2. Rationale: Cannot assume commercial tenant more knowledgeable than residential iii. Some courts suggest tenant pay into escrow account ± shows T good faith (in case court rules for LL) iii. If actually evicted or constructively evicted (Majority: and left) ii. LL must maintain leased property in livable condition. Warranty of Suitability i. Split: Commercial property (Davidow. Increased trend of consumer protection iv. Could also repair and sue for cost of repair (Fee doesn¶t like) 3.f. Was it implied 2. broken toilet) 1. Tenant Remedies (VTRRA) i.There is an implied warranty of suitability by the landlord in a commercial lease that the premises are suitable for their intended commercial purpose. If not termination. Remedy: Possibly void lease. Policy: Independent v. 1 & 2 require an expert testimony
Has a fixed duration 2. iv. Tenancy for Years 1. Pay to repair and sue for the $5400 (must be certain) v. Rests on the uncertain foundation of the continuing agreement of both parties.ii. Principal Problem: In May. UT) 4. but usually inferred from the circumstances 3. Ted and Theresa Toro executed a three year lease for a luxurious country estate @ $3000/month.There is a common law implied warranty of habitability in residential leases 3. Wade v.express agreement between LL and tenant 4. Creation . Tenancy at Sufferance 1. Pool unrepaired but pay $2400/month (market value) ii. Tenancy at Will 1.at the will of either party. Termination . The pool broke. Percentage reduction in rent ± reduced by % enjoyment of the premises has been reduced (Wade. Repair cost $5400. month to month. Lessor not liable for harm caused by a dangerous condition that existed when lessee took possession or came into existence after lessee took possession (only duty to disclose latent defects)
. They want 1 of 5 remedies: i. Holdover tenant 4. Death does not terminate 3. Periodic Tenancy 1. Termination . Old law: Caveat Emptor ± LL had no duty to repair and no liability for personal injury due to lack of repair i.express agreement.notice required (6 months for a year to year. Termination . Jobe (1991) . or at the death of either party« modern statutes require notice of intent to terminate. iv. Creation . Creation . year to year) 2. Repair pool and reduce rent $5400 iii. Types of Common Law Tenancies i. notice equal to the length of the period) iii. ii. Sue to recover difference between actual rent and fair value rent
Assignment 5:Landlord's Tort Liability for Personal Injuries
1.by express agreement but is most often inferred from the facts 3. Abandon the premises for breach of implied promise to repair.automatically at the end of the period specified in the agreement. May compare to similar residences 3. Continues for successive periods until terminated (week to week. no designated period of duration 2. Landlord's Tort Liability for Personal Injuries: Who should fix? 1. Notice not necessary.
implied duty) 3.Exceptions: 1. Race 2. Majority (over 40 states): Through courts or legislature (Merrill. If landlord contracted to make repairs. Housing Discrimination 1. Strict Liability brought by notice iii. but could have if he had used reasonable care. M/F. Present (common/statute): i. Religion 4. not sexual orientation ii. LL may have implied duties other than the warranty of habitability (if pool part of rent. Strict Liability based on the warranty of habitability 1. and didn't. Complete freedom in selecting or rejecting tenants 2. not liable) 2. Some: no notice needed iv.
. not expertise. Negligence (Merrill. Schools can discriminate based on sex because of Title 9 (education)
ii. girl killed in fire) (Trentacost. not able to exert pressure to make product safe ii. Split: If LL participates in the construction of the of the building 2. Frameworks for determining the landlord's liability i. Negligence with breach of warranty of habitability (Asper. No discrimination (behavior) on the basis of (RCRSFH) 1. LL generally not strictly liable (without negligence) i. LL has implied duties in "new common law" 1. Modern Law: FHA (Fair Housing Act) i. Sex i. Strict Liability for defects 1. and the landlord failed to warn the lessee 3. liable 4 foreseeable robbery 1. Landlord liable for things which would be disclosed by a "reasonable inspection" i. the landlord was liable for the plaintiff's injury 2. WY reasonable care all circumstances) v. WY waited for legislature) ii. Foreseeability: Degree to which landlord could foresee makes the more liable 4. Policy: not continuing relationship with manufacturer. unless specified in contract & negligent in not repairing. Common Law i. If knew of a dangerous condition that the lessee did not know of. Color/National Origin 3. LL liable for common areas & certain open spaces. but only if could be discovered through reasonable inspection and had reasonable time to repair (if not common area.
Except: Advertising rule still applies ii. Same rent
5. Includes AIDS and possibly alcoholism but not drugs 7. Handicap i. Terms or privileges 3. sexual orientation. If part of the property is fully transferred (most) courts treat this as a partial assignment 2. New tenant can require LL to fulfill obligations 4. Juilliard & Co. Intent in the contact 4. Exception: Miss Murphy Rule i. Statements. Liability and relationships 1. False representation (saying housing is unavailable when it isn't) 5. Being a child or having a child under age 18 ii. No discrimination in (Behavior) (STNFH) 1. Assignment i. Decisive factor for an assignment 1. Landlord can go after Tenant 1 under privity of contract. MAJORITY: Cannot disproportionately affect minorities regardless of intent (Starrett. and possessing tenant for privity of estate 3. occupation (Kramarsky.) ii. Can for marital status. or Advertising with prejudice (Female roommate wanted) 4. Limiting number of people in unit ii. Assignments and Subleases 1. FHA does not apply ii. Does not mean marital status iii. no quotas) 8. Indicators of an assignment 1. assignees in middle not liable to LL (A. not against children) 9. Notices. pets (unless medical) 2. If you have 4 units or less. Reasonable Restrictions i.Familial status i. Everything not forbidden by FHA okay unless forbidden by state statute (Unruh) 1. Legitimate business reasons that don't violated FHA iii. Exception: Some permissible for retirement communities 6. Additional: Unruh Rule for CA ± no arbitrary discrimination (Marina Point.
. All the rights are transferred (whole term of the lease) iii. lawyer). Payment is made directly to the landlord 3. If chain of assignees.D. Must reasonably accommodate handicapped 3. Tenant 1 conveys to Tenant 2 leaving no interest or reversion in the grantor 2. Sale or rental 2.
financial viability. Payment is indirect 3. Landlord can enforce promises against assignees or sublessees on two theories i. Not for subleases (insulated by lessee) but LL can go for damages through equitable remedies 4. Tenant's Right to Assign or Sublease i. LL can only sue Tenant 1 for privity of contract.
. but stronger case if expressly restrict "for any reason" ii. Liability and relationships 1. Intent in the contract matters 4. Privity of Estate: Like a football being passed ± the person with it has the privity of estate 1. Decisive factor for a sublease 1. Less than all the rights are transferred 2. and LL and those who expressly enter into contract with LL 2. Different rent 5. 2. Privity of Contact (Contract theory) 1. Indicators of a sublease 1. Sublease i. Policy: Keeps original lessee from pawning off responsibility ii. Can withhold for pets. Cannot withhold for more $ 2. negative info from previous LL. Privity of Contract is between the first two parties (LL and tenant). Tenant's Breach: Landlord's Remedies 1. Exists through those who have contracts: LL and T1. T1 and his assignees/sublessees. Duty to mitigate
Exception: If payments are made from lessee/assignee to tenant and they are higher than rent (but rest indicated assignment) most courts treat this as an assignment No right to repossess
i. With whoever has control of the premises even without consent of assignee 2. cannot go after Tenant unless through equity 3. Right to repossess 3.5. number of people 3. and further if expressly assumed 3. Sublessee must go through lessee to demand action of landlord (no legal relationship with LL) ii. If "not transferable without owner's consent" MAJORITY holds LL cannot arbitrarily withhold consent 1. If not all the time of the lease is transferred it is a sublease (reversionary interest) iii. If "not transferable" LL may withhold consent. Tenant 1 conveys to Tenant 2 but keeps an interest or reversion in the grantor 2.
Sue in middle. Utah company too loud) iv. and new suit for future $ 1. collect for past. "accepted" tenant's "offer" to surrender the premises 2. Policy: Difficulty of several claims and chance tenant will leave jurisdiction iii. Equitable: Not fair to force innocent LL to seek out new tenants 3. Policy for duty to mitigate 1. Sue in middle. Ruud. Easy to clarify mitigating conduct is not acceptance of surrender 2. not complete conveyance as in past 4. Landlord's Remedies i. retained jurisdiction for future $ (Mutual of Omaha. Tradition: long standing conformance with property laws (rather than "contract") iv.
³To Joe (and his
. Mitigation is favored in other areas of the law v. Trend disfavors contractual penalties 6. Policy: Too uncertain ± will favor one side Freehold Estates Estate ± freehold other than lease Fee Simple Absolute Language Future Interest in Grantor None Future Interest in 3rd Party None Characteristic
i. speculative $ for future 1. collect for past. Doctrine of Surrender: If LL enters premises. Landlord can subtract cost of advertising etc. MAJORITY: Tenant has burden of proof to show LL did not make reasonable effort to mitigate (Isbey. If reasonable effort. ALL: $ from 3rd party offset from amount defaulting tenant owes 2. Policy: Get LL back to as close original condition as possible (reality a lot of effort on LL) ii. Sue in middle. Economies benefit because returns land to productive use 5. Tradition: Was developed for agricultural land and today. Equitable: Outweighed by rules requiring only reasonable mitigation efforts 3. breaching tenant owes 3. and new tenant pays less or needed alterations to bldg. both tenant has to prove LL did not make good faith effort) 1.MAJORITY: Landlord required to mitigate (view is that lease is commercial transaction rather than estate) 1. Reasonable effort: what LL did in past and what other LLs currently do for similar properties iii. Sue at end of lease for all ii. to attract new tenant 2. Policy for traditional rule 1. collect for past.
heirs)´ Fee Simple Determinable (subject to condition precedent) Fee Simple subject to Condition Subsequent Life Estate Determinable Life Estate ³To Joe as long as«´ Possibility of reverter Executory interest Potentially Infinite (Fee Simple subject Duration. Executory Limitation Remainder (vested or contingent) Measured by someone's life Measured by someone's life and Condition Precedent is Attached Measured by someone's life and Condition Subsequent is Attached Measured by finite period other than someone's life
Life Estate Subject to Condition Subsequent Lease (leasehold)
³To Joe for 10 years´
1. only prospective heirs 2. For all estates. Future Interest: None 1. A living person has no heirs. FSStEL. and who the reversion goes to 2. but Right of entry Executory interest Potentially Infinite if«´ (Fee Simple subject Duration." or "no marry" restraint is void and A has a fee simple i. Present Possessory Estates 1. LE. possibility of reverter Reversion. "to A in a fee simple" 4. Condition to executory Subsequent Attached limitation) ³To Joe for life´ ³To Joe for life as long as´ ³To Joe for life. FSD. Condition to executory Precedent Attached limitation)
³To Joe. FSStCS. Duration: Yours forever iii. right of entry Remainder (vested or contingent) Remainder (vested or contingent). Fee Simple Absolute i. Executory Limitation Remainder (vested or contingent). but if´ Reversion Reversion. Policy: courts frown upon restrictions on alienability (ability to sell) ii. "to A" 2. FSA. the future interests. Heirs only receive what has not been disposed of (no guarantee)
. If "to A so long as no attempt to sell. Language 1. "to A and his heirs" 3. don¶t forget to list out the present interest. DLE (x2) 2.
Language: (not in years) 1. Executory Limitation is subject to rule against perpetuities Life Estate i. To A until he dies ii.. Future Interest: Right of Entry or Power of Termination 5. A FS with a reversion (FSD or FSSCS) in a 3rd party (rather than original grantor) 3. FSSEL ii. Duration: Potentially infinite so long as condition does not occur 4. Pur Autre Vie: life estate is measured by the lifetime of someone other than the person with the interest Defeasible Life Estate (can either be determinable life estate or a life estate subject to a condition subsequent: see language hints under fee simple divisible) i. etc.then to" "but if. Breach: must take affirmative action ± not automatic (executory interest if in a 3rd party) iv.. if" "on condition that" " if. Future Interest: Possibility of Reverter ± (Executory interest if in a 3rd party) 5. "Provided. for so long as.
4. Condition Precedent 3. however" 2. Fee Simple Subject to Executory Limitation 1. taxes. during.
.then to" 2. during the time that 2. Language hints: to new person i. Language hints: durational language i. Future Interest Created in 3rd Party Grantee: Remainder iv. Duration: Potentially infinite so long as you don't violate condition 4. Right of Entry ii. FSSCS.) Fee Simple Defeasible i. To A for life. Fee Simple Determinable 1. Breach: Automatically reverts to grantor iii. Future Interest Retained by Grantor: Reversion
i. Future Interest Retained by Grantor: Reversion. Duration: potentially infinite so long as 4. Future Interest Created in 3rd Party Grantee: Remainder.. Fee Simple Subject to Condition Subsequent 1. however" "but.
2. While. Executory Interest Leasehold Estate (See other sections for more on leases) i. until.
Owner has all the rights to land. 2.. "until. Language hints: the small print i. To A for the life of B 3. Estate with a string attached:FSD. Limited by the law of waste (goes so someone when you die ± life person must not commit waste) v.1. Future Interest Retained by Grantor: Reversion iii. Condition Subsequent 3. but not absolute dominion (zoning.
Created in a 3rd Party i. Generally i. Automatically goes to grantor when condition is violated ii. Ex: "to A for life. Reversion (LE) 3. No conditions precedent other than the natural expiration of prior possessory estates iv. Must be theoretically possible to determine who will get possession when prior estates end 2. Must be created at the same time as the will 2. remainder to B for life" iii. remainders. Subject to RAP
. Limited by the doctrine of waste 1. Indestructible iii. Future Interest Created in 3rd Party Grantee: Remainder iii. Created in the Grantor i. Subject to RAP 4. Contingent Remainders i. Never follows a FSD. Remainder Interests (never follow a fee) 1. then to B" "to A for life. Vested Remainders Subject to Divestment i. so long as) iii. FSSCS ii. provided that) ii. If A has right to immediate possession when preceding estates determine 3. while. Condition Precedent (if. Transferable ii. Possibility of Reverter (FSD) 1. If additional people may later qualify for membership in a class ii. Rules 1. Absolutely Vested Remainders i. Ascertained party ii. Gives grantor option to repossess when condition is violated iii. right of entry (power of termination). General i.ii. Future Estates 1. Ascertained party ii. reversions. if. Condition Subsequent (but. Generally i. Right of Entry (FSSCS) 1. Possibility or reverter. Vested Remainders Subject to Open i. Unascertained party OR ii. Closes when gift available iii. however if. executory interest 2. during.
Rule Against Perpetuities 1. while. Find the questionable conveyances
ii. Figuring it out 1. during. Common Law Rule i. Precedent: If. To A for the use of B (for when women couldn't own property) ± savings clause so long as it vests within 21 years of a life in being alive at the time when the trust was created 2. then illegal 2.
. Interest is created by a will when testator dies and created in a deed when the deed is delivered (unless deed is revocable ± then interest is created when it is irrevocable) ii. Vested Remainders Subject to Open (all or nothing) 1. Subject to RAP 4. Not violated through reversionary interests. absolutely vested. Subsequent: But if. Subsequent OR Precedent i. If you can find ANYONE who is alive at the time of the conveyance at whose death you will know the result. Subject to RAP 2. It becomes possessory OR ii. So. Vests when someone qualifies and the gift is available for distribution iv. Executory Interests 1. it is ILLEGAL 1. or vested subject to defeasance 3. if at the time interest is created there is a possibility it could remain contingent for over 21 years. Unless it must VEST or FAIL with 21 YEARS AFTER A LIFE IN BEING. A 3rd party who has the possibility of reverter or right of entry 3. so long as (durational flavor) iii. Rule: Life in being + 21 years 2. Vest means i. Validating life: the life who validates the conveyances (can be unborn) iii. Contingent Remainders iii.If must fulfill some condition other than natural expiration of preceding estates iii. provided that (small print) iv. Do NOT ask when the condition will apply or occur ii. Executory Interests ii. Not a separate estate. Distinction will be in the language! 2. Trusts 1. Only violated through future interests i. Not subject to a condition and it must become possessory at the end of a set period of time 3. but a form that divides legal and equitable interests 3. Cuts a life estate short 2. you are ok 1. however if.
then the wait and see is 90 years 3. Two Types of Waste i. Modern Approaches i. gives more control to the unborn and people are not interested in investing if land is tied up 5. Not responsible for major improvements iv. Life Estates and the Doctrine of Waste (vested life estates and split for contingent estates ± depends on nature of contingency) 1. Remainderman i. If it's not valid under the common law. Life tenant i. Uniform Statutory Rule Against Perpetuities (USRAP) 1. Then see if it will vest in 21 years 3. If outside circumstances make property valueless in present condition.
Without. Payment of taxes and interests on the mortgage (not required to spend more than property receives) ii. Legal relief: damages (more likely if sure to become possessory)
.iv. Commissive 1. Cy pres: Reinterpreting a conveyance to avoid invalidity (by judge deciding meaning) ii. Permissive (neglect) (Zauner. Utah) 3. Even if it's not valid under 1 or 2. then the judge can revise it ± not likely to need this iv. Responsible for ordinary maintenance expenditures iii.
For personal contingencies. Policy i. Entitled to proceeds from sale of property 3. Wait and See ± if don't know at the time it is created if it will vest or fail (wait the 21 years and life) iii. but did fail in repair) 1. When a tenant damages a property in a way that the value is permanently reduces 4. identify all relevant people and kill them off i. Tenant fails to preserve and protect the property by exercising the ordinary care of a prudent person 2. For non-personal. determine whether the resolution of the contingency is valid in 21 years If invalid. not surrender. leased premises. and dividends ii. then may be allowed to change property (Melms. Abolishing the Rule (MINORITY. Entitled to rents. strike that section of the will (but prior conveyances are still valid)
2. surroundings went industrial so allowed to grade house) but mere increase in value not enough 2. interests. Remedy (not double relief) i. If it is valid under the common law than it is still good 2. 4.
or willfully give up the property (McIntyre. General i. Co-tenant can bring action for waste during life of co-tenancy Equitable relief: injunction ± make them fix (more likely if contingent) 1. maybe not
. Equal right to possession and enjoyment of the whole property.
1. Must have done something extreme like stop paying taxes. Good idea: If promise to repair. No reimbursements for improvements (except in partition) iii. Who drafts the will a factor ± if joint by an attorney. No rental costs for each other 2.ii. Leasing premises probably not surrender Concurrent Estates Concu Require Surviv rrent ments orship Estate s Tenan Default cy in Com mon Joint 4 Tenan unities cy with rights of survivo rship No Transf erable
Yes(bu t turns into a Tenanc y in Comm on) No
Tenan Marriag Yes cy by e + 4 the unities Entire ty
1. Profits split iv. Concurrent estate ± when two or more people own interest in the same property at the same time 1. iii. regardless of % share (cannot exclude) ii. taken as joint. Policy: varies on probability land will become possessory 2. lost because stopped paying taxes) 2. by lawman. willful abandonment. Intent i. pay into an escrow account Forfeiture of the estate (more extreme) 1.
Termination and Severance i. B devises to "C&D" (A 1/2. Default if ambiguity (unless marriage) . "jointly. Joint Tenancy 1. shares pass to living tenant as fee simple absolute ii. May be terminated by conduct indicating all parties view interest as in common i. Types of tenancies i. Upon death. C to D. Unity of title ± must take interest from same source iii. "to Alyssa and Ben. No requirement that interest be equal. "to A & B as joint tenants". Unity of interest ± have equal and identical interest iv. makes A & B joint tenants and D tenant in common 4. "A. "For their joint use and benefit" is not enough to determine a joint tenancy (Weems) 5. "to Alyssa and Ben". Tenancy in common 1. "For their joint use and benefit" (Weems) ± tenancy in common. Equal and undivided interest ± creditors may reach 8. Four unities ± must be present to form a joint tenancy ± failure of any one creates a tenancy in common (TTIP) i. Undivided interest ± neither tenant can exclude the other from any portion (would be ouster) 4. Each owns individual part and each has right to possess the whole i. Minority: Special exceptions (not married but close) may have right of survivorship ii.favored by the law 3. jointly not enough for JTs 3. Right of survivorship i. May be terminated by mutual agreement ii. but default is equal i. Bad to assume party wanted to give up joint tenancy
ii. Unity of possession ± have possessory interest in the whole 7. and not as tenants in common") 2. Freely transferable 7. Unity of time ± must take interest at same time ii. not tenants in common" adding not tenants in common gives weight to joint tenancy (Kurpiel. Can sell rights for life of A. B devises her interest "to C & D" ± doesn't work.
. D 1/4) 2. all goes to A because right of survivorship and must pass during life 3. but A cannot pass rights after life 6. "to A & B". B & C joint tenants". If unequal interest. different % for earnings (rents) 5. C 1/4. No right of survivorship ± Shares pass to heirs 6."Jointly and not as tenants in common" (Kurpiel) ± sufficient for joint tenancy iii. joint tenants.
Right of survivorship 2. Temporary or Partial Severance 1. Some (trend towards): mortgage does not sever unity of title (Harms) 1. Joint tenancy severed during term of lease. Other approaches i. thus unity of title not severed iv. Cannot convert in will. death of one spouse. but surviving joint tenant's interest subject to lease v. Conditional Severance 1. does not protect the mortgagee's interest vi. Joint tenancy survives during lease. Some: pledge severs unity of title (mortgage and pledge only diff. Some states allow tenant to deed/sell to themselves. but revived upon termination of lease if both joint tenants still living ii. Equal interest 4. rest still have joint tenancy (the one has a tenancy in common) iv. must be during life Tenancy by Entirety 1. Permission or awareness of other joint tenant not required 2.
Look to intent (lease. probably no intent to give up JT) iii. Survive death? i. in type of prop. May be terminated by destruction of one of the unities (ex. why not to self (Minonk) ii. outright conveyance) i.) 1.iii. Can be converted to a tenancy in common by the act of just one tenant 1. Four unities + marriage (see above) 3. Termination: only by divorce. or voluntary partitioning
ii. Policy: if can sever through straw person. grandson filed bankruptcy) iii.
. Policy: mortgage is a lien rather than a deed. Policy: problem. breaking the joint tenancy 1. and one severs. Some (trend towards): a lien/mortgage/interest dies with the joint tenant ii. Policy: lien is right to possess and retain property until charge paid (Hutchinson. If multiple joint tenants.
Exclusive possession can be through excluding the other from exercising rights to the property (Gillmor. If A is in exclusive possession 1. can't graze sheep on Utah land) 2. Weird rule: Husband and wife are one unit if reference to that status (Margarite. Some: May offset 1/2 fair rental value if cotenant exclusively uses iv. Use of "husband and wife" and use of double ands iii. Community Property 1. Not liable to pay rent (majority)
i. Tenants by the entirety and holders of community property no right 3. Even if one tenant exclusively uses the property. If three. Policy: Protects non debtor spouse 6.Insulated against conveyances ± not broken by unilateral act of spouse 5. Some: May reach after death ii. Ouster: When one co-tenant claims exclusive possession i. but liable to cotenants if receives rent from 3rd party 3. Creditors may not reach the interest of the debtor spouse i. single gets 1/2 and couple gets 1/2 ii. Liability: Liable to pay for 1/2 the rent to ousted co tenant since ouster i. Voluntary partitioning ± if all co-tenants agree 1. Division by sale: co-tenants take chares of the proceeds 2. Exception: if not referred to as husband and wife (if 3. Not Ouster i. Some: Default if ambiguity is tenancy by entirety for marriage iv. At least half the community property goes to surviving spouse 4. 10 states 2. Division in kind: physical division ± creates possessory interest 2. Majority: Not liable for own rent (value of possession). "jointly. Only between husband and wife 3. "his wife" "2 ands") & (Adamson. Language indication i. not ouster unless the other is prevented from use iii. Division by sale: co-tenants take chares of the proceeds ii.
. "husband and wife" "2 ands") i. Partition by judicial proceeding 1. A i. Partitioning concurrent estate (tenancy in common and joint tenancy) i. Concurrent Estates: Administration 1. The possession of a tenant in common is presumed to be the possession of all tenants until the one in possession communicates to the other the knowledge that he/she claims exclusive right or title ii. 3 1/3s) (Kurpiel. Joint tenant or tenant in common has right to demand partition 2. Division in kind: physical division ± creates possessory interest 4. and not as tenants in common" ± no reference to marriage) iv.
Ejectment demanding right to joint possession 1. interests. Applies to all husband's property during marriage. then may lose to adverse possession (if not ouster. & maintenance expenses 2. if value of A's use is greater than expenses to B. Marital Property 1. Barrow. interests.
Can charge B 1/2 taxes. B owes nothing (usually the case)
Some: can offset A's fair rental value from what A charges B (1/2 total) ii. Old Common Law i. If A is ouster 1. Taxes. Marketplace value of the occupancy of the property ii. carrying charges. can offset rent owed to B by 1/2 taxes. because divorce) Can only charge for maintenance expenses if negotiate with B first So. mortgage payments. Not compensatory: but would be considered in a partition action 1.ii. Today: Common law not used by any state and gender based discrimination unconstitutional against females 2. can charge A's fair rental value from what A charges B (1/2 total) 4. need to buy wife's interest (not common but important) ii. 2. Dower: Widow entitled to life estate in 1/3 real estate . Community Property Jurisdictions i. A i. Property owned 50-50 regardless of who formally earns it
. then B can offset these charges by the market value of A's rent 1. but A was in exclusive physical possession. even if conveyed away ± thus. and carrying charges (mortgage) (can charge based on share) 2. B i. interests.
iii. But B may offset rent (majority/some. Curtesy: Widower gets life estate in all wife's land provided a child is born alive iii. Remedy: If ousted i. cannot adverse) 3. carrying charges. Compensatory: If A charges B because A paid these things. If don't seek remedy after ouster. mortgage payments i. if married. iv. Three different types of expenses i. Maintenance expenses (can only offset.problem if marriage $ not in real estate 1. Improvements ("improver" gets full increase or decrease) 5. never charge) ii. B i.
Can choose elective share or the will i. devise. or descent i. group all assets into marital estate and then divide iii. Modern trend to consider the nonmonetary contributions of nonworking spouse (ALI view) 3.
. Common Law Property Jurisdictions (Statutory) i. Policy against: spouse no ownership. JT and TC only by consent of both parties ± then converts it from marital property 1. Present and prospective earnings of each spouse v. Majority: Emphasis on property division (can be $ for value of degree. Minority: Alimony(need based or other factors)
1. but in community. Contribution of each spouse ii. Spousal Maintenance (Alimony) i.Shared from the moment it is earned (effects management during marriage) 2. Management of Property Acquired during Marriage 1. Look to many factors ± trusts/interests made close to death iii. Duration of the marriage iv. spouses have equal rights in community property (some equitably. Some: Probate ± if married 15 years or longer. Factors i. Community v. Common Law i.fewer years = entitled to less 4. Upon divorce. if poor spouse dies first. bequest. No TBE in community property states iv. 50% . some equally) iv. Disposition of Property on Divorce (on equity and fairness) 1. Each spouse over their own earnings during marriage ii. Remain separate if you keep it separate ± difficult burden of proof ii. get share of JT/TC and then rest according to marital property laws 5. not leave anything to heirs. Age(Simmons. Upon death. although not necessarily identically 3. surviving spouse entitled to at least half iii. In common law state. Needs of each spouse (Minority) iii. ALI proposes gradually from separate to community ii. woman significantly older and fewer years to earn) 2. Unless owned before marriage or after marriage through gift. Policy: Clean break. Policy for: Both parties contribute equally. Upon death. fixed ii. entitled to half ii. $ for contribution towards degree) 1. Death of one Spouse 1. Marital Property v. For both. Minimum entitled to usually 1/3-1/2 ("forced") 2. permanent.
sold. Policy: Good when couples have no real or personal property 6. not potential existence) 2.could be nominal thus reflects true value of degree) ii. Option of alimony ("wait and see" . and licenses 2. not assigned. Like a license to use the land. Generally i. profits. Appurtenant: Rights automatically pass with land (easement and land cannot be split) 1. More easements intended to be appurtenant ii. other spouse should be compensated if supported spouse in attaining 2. Shouldn't force career path and earnings 5. Accounting as marital property allows for clean break vs. Express Easements: Classification and Creation 1. Appurtenant (land) or In Gross (person) i.could injure/die (definition of property is based on present. Degree. Affirmative v. real covenants. but irrevocable by LL v. Any detriment to servient estate usually offset by benefit to dominate estate
. Since it passes automatically. Limited to use or enjoyment of interest in land iii. Vast Minority (policy. Protection against 3rd persons and will of LL iv. License is valuable. Dominate estate is benefited and servient grants the benefit 2. Marital Property? i. Generally: Non-possessory interests ± land owned by one party "serves" another party 2. Affirmative: Grants rights would not otherwise have ii. not inheritable. Marriage not business arrangement or economic partnership 4. or transferred 3. supported medical license) 1. protects grantee from failure to create a separate grant with fee iii. equitable servitudes. Servitudes 1. Easements. Negative: Prevents possessor from doing something would otherwise be allowed (restrictive covenant) 3. Disposition should not be based on potential earnings . Negative i.1. alimony (which may penalize remarriage) Servitudes and Rights of Neighbors Non Possessory Interests 1. Majority (policy): A degree or license is not marital property (Simmons) 1. Intellectual achievement: terminates on death. In writing ii. law review supports): A degree or license is marital property (O'Brien. Presumption of appurtenant for 3 reasons i.
Reserved i. Scope: Prior use of the land 1. land conveyed in fee. Easement/Fee: Terms in support of easement (from original deed): "right of way" (Greaves. Grant. Amount of Consideration 1. Scope: If language has space defined: width. "for x purpose only" is conditional estate. fee subject to condition subsequent. What best serves the interests of the parties ± discouragement from splitting land 2. Subsequent conduct of the parties 1. Benefit not attached to particular parcel of land 4. generally only what is reasonably necessary for purpose of easement iv. holder of easement entitles to use servient estate in manner reasonably necessary for convenient enjoyment 3. Reservation retains for the grantor a newly created property right iii. If not specific measurements and right of way "over" land. Policy against: Does not allow grantors intention ii. road moved x times ± easement) 3. Language of document 1.
. "not exceeding 40 feet" ± easement language) (Greaves. What happened immediately after implies parties intent
ii. road had no limitation of use) v. Granted v. May suggest continuation of that use was intended ii. Intentions 1.In Gross 1. then clear (Northwest Realty. More money probably greater rights intended vi. conveyed" ii. If ambiguous. "right of way". Reserved is interpreted more restrictively than grant iii. length. Exception retains for grantor a pre-existing interest 3. In favor of the grantee ± fee simple assumed unless it appears from grant a lesser estate was intended 2. Is it an easement or fee. not easement 2. "over". road "also") i. Factors to determine rights and obligations of easement (PI-LEAST) i. "across") (Hurst. what is the scope of the easement (express or through adverse use (prescriptive easement)) 1. Could give easement then sell ii. and location. Grant is creation of a new easement 1. Reservation. "right of way") (Northwest Realty. Use/limitation in land & purpose of the interest ± road usually easement (Hurst. Traditional rule (only 3 states have eliminated): cannot create right for 3rd party i. and if so. If intent cannot be shown otherwise. bargained. Exception i. sold. Terms for fee: "granted. look to intentions and reasonable expectations i. Reasonable Expectations 1.
Not increase burden on dominate use iii. but no appreciable additional burden on servient estate (Hayes. could change easement according to Restatement) i. For: Merely a right of way. Against: Favors economic interest of only servient party iv. Servient owns property. Normal increase in degree of burden in use of easement okay. need dominate consent & servient pays change 2. Easement/Fee: To whom property assessed and who pays Taxes 2. increase in boat slips okay) i. nonpossessory right. Duty to repair and not impose unreasonable additional burdens on servient estate (clean up) 3. Majority: If servient estate wants to relocate (road). Policy i. Burden on proving additional burden on servient estate ii. Rights and Obligations i. Ingress & Egress
. Minority & Restatement: Servient can relocate if dominate estate benefits substantially similar ± may want a declaratory judgment before change (MPM. Dominate Rights & Obligations 1. Servient shall pay for cost of relocating ii. cannot use easement for additional lot). encourages use of easements. Servient may be obligated to provide "private way of necessity". Unilaterally Relocate Easement? 1. created to serve a particular objective.P.vii. Servient Rights & Obligations 1. Minority/trend: Allow new uses of easement if not appreciably increase burden (telephone easement allows cable) iii. Majority: Neither dominate nor servient estate may unilaterally relocate an easement once fixed 2. Not frustrate purpose for whish easement was created iv. so can use it to extent does not interfere with easement 3.M. access to C no additional burden but provided benefit) ii. Not lessen utility of easement ii. relocate road) i. Dominate estate cannot grant others easement and cannot use easement for other parcels (Brown. May relocate if (M. permits servient to develop land without unreasonably interfering with easement rights ii. but servient can grant if not interfering with 1st easement 2. or allow right of way if benefit to dominate and no damage to servient (Brown..
Was the use continuous (at the time of severance and still)
. Cannot look to writing to determine intent ii. Loss of purpose of easement (canal with no water) iii. and B relies on that. No necessity (Epstein) ix. Original unity of ownership 2. Factors considered for determining if an easement is implied (PASTA ± BEN) i. Abandonment (need clear abandonment) v. Estoppel 1. adverse possession. To what extent was the easement was apparent to parties iii. Merger of dominate and servient estate iv. by necessity. Easement by prior use/quasi-implied easement/visible easement (low standard) 1. Express terms vi. Go back to when land was owned by one owner and look to original needs and actions iii. What results best meet expectations of parties and arrive at fair results? viii. Public policy: avoidance of economic waste 3. 4 types of non-express easements i. Estoppel exception. Adverse possession (of owner or other) ii. Purpose: Give effect to the intentions of the parties 1. New use permitted if from reasonable development that does not unduly burden servient estate 2. driveway could be through alley) 2. What are the terms of the conveyance v. Strict necessity (Ward. How necessary is the easement for the claimed dominate estate? SPILT 1. + express) 1. Was the easement apparent 3. Subsequent conduct of the parties iv. What allows full utilization of the land x. Recording Acts 4. Foreclosure 2. Eminent Domain 3. Termination of Easements (ALMA EEO-FER) i. Requirements for implied easement must be met at time of conveyance vii. Other Ways to lose property 1. The right to enter and leave 3.1. Prior use ii.implied. may lose easement vii. Not implied in face of evidence proving no such intent 2. If A says won't use easement. Does the easement create benefits for the conveyor and/or conveyee? 1. Generally i. Amount paid vi. Restatement view) 3. Necessity element in balancing test (Hillside. Non-express Easements (4 non express .
negative easements. SOME: not transferable iii. Negative covenant (promise to not do something) i. Conditions and Restrictions (CC&Rs) 2. sign not permanent) ii. Easements by necessity (high standard) 1. not implied 6. but did not grant easement. owner A cannot revoke permission 2. Easement by Prescription/Adverse Use 1. Original unity of ownership of claimed dominate and servient estate ii. Real Covenants (covenants running with the land) 1. Requirements to create a covenant (trend away from technical requirements) 1. Continuous: as the owner would use it 2. Scope is narrowly construed 5. Equitable Servitudes 1. Court will only enforce if party had notice 2. Covenants.
. Real Covenants v. Did the parties address easements in the agreement? If did. Names (kind of same thing): Covenants that run with the land.). Remedy: Injunction 4. Equitable Servitudes Restatement and others eliminate this distinction 1. Becomes an irrevocable license ± like an easement except i. Requirements for an easement by necessity i. It only lasts as long as necessary to recoup the value of the investment ii. Promise must touch and concern the land 4. if B relies on that permission (usually spends money to build road etc. Policy: for easement by necessity unless affirmative evidence against iii. Existence of necessity at the time of severance (implied generally not strict necessity) 2. Most Important: Make sure covenant is recorded in a way that gives notice to all future owners 3. If owner A gives permission for B to use land in certain way. Agreement to be bound 2.Is the easement necessary for the enjoyment of the claimed dominate estate 5. Minority: Was the right of use intended to be permanent? (Epstein. Statute of limitations begin using the land in such a way that the owner would have a cause of action iv. Must not violate public policy
4. Remedy: Damages 2. Easement by Estoppel/Irrevocable License 1. Intention that promise run with the land 3. Promissory Servitudes: Enforceability of Covenants 1. equitable servitudes. Generally affirmative (promise to do something) 2.
If unclear. Rent/Sell: Enforceable if (Franklin. Unreasonable if i. Lesser owner rights: Courts enforce covenants unless unreasonable (burden on party challenging covenant) (Nahrstedt. If restraint is limited in duration (counts if assoc. If for a worthwhile purpose 4. Reasonable standard for individual or group? (Nahrstedt) i. so default to free enjoyment for that and less for "cats"/lesser owner rights ii. Subject to constitutional rules (can do certain things govt. Is a covenant enforceable? 1. Burdens substantially outweigh the benefits ii. but proper) v. Standards of enforceability: vary according to the covenant i. and when covenant is created at conveyance 2. Number affects is relatively small 5. AIDS okay as family) iii. Policy: i. Can enforce against anyone who acquires burdened estate and has notice (not actual. but still subject) iv. party who owns easement. Violated public policy iii.5. maybe implied 5. LL tenant. Generally: There is a strong presumption against alienation (not being able to sell/rent). Generally i. and marketed same way. in favor of free enjoyment ± interpret reasonably (Hill. cannot. Protects owners from feels due to legal challenges 3. Would conflict with presumption that covenant is reasonable iii. SOME: Traditional legal requirement that promisor and promissee have some form of privity of estate i. Horizontal Privity (MINORITY ± archaic. If the one imposing has some interest in the land 2. cannot have cats) 1. Relationship between promisor and promissee 2. Can be in gross or appurtenant (most) iii. Policy: discourages lawsuits by individuals seeking personal exemptions
. SOME: Doctrine of Implied Covenants: if part of same community. may not last) 1. Idea: two neighbors cannot just enter into covenant 6. Wholly arbitrary 2. Only the owners of the beneficial interest can enforce covenants ii. Cannot look to reasonableness for individual ii. one may only own two or fewer apartments) 1. Provides assurance and confidence to prospective buyers ii. can vote and change covenant) 3.
If full participating membership is available to all 3. If part of general scheme. Policy: Would have liability for land but no benefit 3. conditions & restrictions (CC&R) iii. For enforcement i. Covenants are legal devices used to create common-interest communities ii. Adverse effect of the decision sought iv. If size and composition reflect a position fairly representative of the community interest iii. mis measuring a porch) 7. runs with the land ("heirs". Courts default to upholding covenants unless a strong reason against ii. Exception: presumption of invalidity for alienation (limitation on selling/renting) unless very low restriction (Franklin. Terminated or disassociated by super-majority vote v. or be barred by doctrine of laches (undue delay in enforcing one's rights) 2.'s office despite covenant ± not dramatic change) iii. Defenses i. only hydroelectric plant) i. Policy: Takes away responsibility from government. May lose right to enforce due to laches/adverse possession iv. Commonly mandate membership with dues iv. gives stability to the community. declarant in a document called the declaration of covenants. May waive enforcement. Factors for determining standing of association(Westmoreland Assoc) i. Was there a good faith mistake? Would have to not create much harm (ex. wanted Dr. Have the circumstances changed so dramatically that the purpose no longer exists? ± only applies to the dominate estate. Defenses to the Enforcement of Covenants 1.k. disproportionate (Philwold Estates.6. Procedural requirements for enforcement 1. Generally i. not the servient (Chevy Chase. people have notice and have promised to comply 3. Was there sufficient evidence to establish a uniform development plan? 1. Based on contract (not property) law i. May refuse enforcement if hardship disproportionate to benefit (very great v. Capacity of organization to assume an adversarial position ii. If land rendered wholly useless. be estopped from enforcing it. Association rights/requirements for enforcement (if good standing of assoc) i. may be entitled to damages v. very minor) 2. Provide constructive or actual notice of covenant
. reasonable limitation to only owning 2 apartments) iii. Should court decline to enforce due to comparative hardship? 1.a. Policy: CIC good because takes burden from government 2. Recorded by developer a. Common Interest Communities 1. If court declines covenant. "mediately") ii.
Create/modify covenants i. Require all owners to be members 4. is thought to have received compensation through lower cost iv. Nuisance 1. If a person buys and nuisance is present. Could win big or lose big (all or nothing) because courts are hesitant to let residents win over big companies because that would equal an injunction which would be a big loss to society 4. Traditional (SPLIT): First restatement i. Impose dues ± not excessive though 3. waive right to enforce 5. Due process considerations 4. Factors i. Surrounding circumstances: if most neighbors agricultural. Public Nuisance: offense against public and generally only public official can sue ii. Split: mostly based on extent of new covenant ± bigger change = less chance of validity 2. Policy: make use of dues (ex. solar panels) 3. Zoning v. Court's standards of review for board action ± courts vary or mix i. If affected substantially. less likely to find that a nuisance iii. Interference must constitute nuisance for legal remedy ii. Maximum use used to be viewed as better but trend towards preservation i. not enforce against all trucks) i. Nuisance: could use zoning code to prove nuisance ± zoning more predictive and proactive 2. Who was there first: coming to nuisance problem 1.
. Business judgment rule of corporation law: Not second-guess unless showing of bad faith ii. parks) ii. Ex: sunlight (Prah. Two steps (Rabin excerpts)
2. If value of covenant not affected. New Trend (SPLIT): Second restatement i. Rights (if notice) 1. What sort of land use do you want to promote 2. Private Nuisance: bring action for self if "different in kind" from public nuisance iii. Reasonableness standard iii. If ambiguity. Generally i. If nuisance.social value judgment 1. Spite: courts less likely to support actions done out of spite ii. Public Policy: who to support . rights towards free use of property (Evergreen) 8. need not enforce uniformly (Raintree. entitled to an injunction iii.Reasonable demand for compliance after breach occurred (policy: courts don't want case if owner willing to comply but didn't know) 3.
Separate fault from efficiency(Spur and Boomer landmark cases for this) Remedies 1. Eminent Domain 1. 3 questions) i. Just compensation 1. Value of cause of nuisance must be greater than damages to justify continuing ii. cattle violate public health.
Who is morally blameworthy? i. developer pays) 2.ii. If can change for less cost than damages. May enjoin operations if remedy is beyond damages BUT may not be at fault (Spur)
1. Is taking vital to commerce (highways. Problem: ³to me it¶s worth a million dollars´ 2. If transferred to private entity. cement plant . do that 2. Injunction cancelable upon payment of damages for past and future injuries ± permanent damages for total economic loss (Boomer. railroads. etc. think more before taking 10. How can this be resolved with the least expense? i. Resolved by least-cost-avoider. Reasons taking may meet public use requirement (Wayne. Policy: Fee thinks should up this to make govt.
iv. Courts are more likely to find for than with 1st restatement because remedy is less extreme If there first. but not necessarily at his expense ii. but becomes nuisance through other's actions (no fault) 1. The person at fault pays (Spur Industries. Taking ii. Public Use 1. Fair market value i. canals. 5th Amendment: ³nor shall private property be taken for public use without just compensation´ i. Must compensate if harm greater than other should bear without compensation iii. but is it for public use? 2."balancing of conveniences") Policy: Damages can be more fair and more efficient than an injunction 1. Generally i.
iii. is taking devoted to use of the public (independent of will of private entity)?
. Grant injunction but postpone effect until future date to give chance to fix 3. Question: Flat out taking.
Government Use of Land 9. For public use iii.)? ii.
Policy Against Taking (Kelo. If practical use/advances public welfare. Hawaii Housing Authority. If can transfer for private use. When are government imposed restrictions enough that it constitutes a taking? ii. Thomas dissent: only allow eminent domain if govt. then sensible
1. Zoning laws are a legislative exercise of police power for public welfare iv. Legislature. Does act of taking serve public good (Poletown. Court rejected literal requirement that condemned property be put into use for general public (Kelo. Argument: Midkiff was about preventing harm ± should be the requirement ± not who most $ benefit ii. Regulations Test 1. welfare ±GM Cadillac plant) 3. for legitimate public purpose (Midkiff) ii. Michigan. Must be selected due to public interest. must determine substantial reasons for exercise of the taking of power ii. not interests of private entity 4. Question: Is it a taking? 2. Strickley) iv. Regulatory Takings 1.
. Tend to benefit the wealthy and displace the poor iii. not to take for business park because private entity not open to public use ± overrules Poletown by interpreting the state constitution) iii. Must have meaningful limit on power of eminent domain 1. state or federal.Support: if private beneficiaries are unknown at time plans are formulated (fee thinks unreasonable) iii. Different than nuisance ± nuisance is minimal restrictions iii. O'Connor dissent) i. Decline to second guess what the legislature deems best for public 1. Fee for Kelo) 5. If transfer to private entities must be devoted to use of the public(Wayne. Acceptable: Redistribution of fees simple to correct extreme deficiencies in the market determined by the state legislature (Midkiff v. Is condemned land chosen due to a public concern? 1. is there is a limit iv. public health. If attack perceived evils of concentrated property ownership. Policy For Taking (trend and majority) i. Generally i. Sensible? i. people couldn't buy land they lived on) 2. owns domain or private that is required to serve the public 11. Carefully thought out economic plan that should benefit the community (Kelo. safety. Necessity because likelihood people will hold out and prevent what is necessary for public and commerce iii. Transfer to Private Entities? i.
Exception/not a taking i. Reciprocity of advantage 1.If doesn't advance public welfare and injures the landowner. Interference with reasonable investment backed exceptions iv. If temporary. not sensible 2. Example: law allowing access to beach merely statute for common law 4. not subjective 3. Character of government's action 1. The right to exclude is greater than the right to use (so small cable box still a taking) 3. 2 Bright Line Rules i. Exception: if land use restrictions merely reiterates common law/background principals of state law (ie. Although limited ability to select tenants. may not be taking (Tahoe Sierra) ii. Fire extinguishers. and other required physical objects iii. Taking per se 4. small cable box) 1. Is a taking 2.
. can up rent with permission ii. Balancing Test (Penn Central. safety. up rent. RR station wants to build a skyscraper) (CRIES) i. LL can chose to change the use of the building if they don't want to comply ii. SC Coastal) 1. tenants voluntarily invited (box not). and tenants can renew indefinitely. it is justifiable (Justice Holmes) 3. Sometimes means when a regulation applies to more than one owner and benefits all owners. Will always affect landowners ± what extent allowed? 3. Reasonable self interested seller. Diminution in value or use 2. If any use is left. Escondido. Compensation must be given 2. When all viable economic use is eliminated(Lucas v. fire sprinklers. trailer park rent control i. Not physical taking if not for third party i. Govt. YEE v. What is all economic use? i. it is enough ii. welfare & morals (Penn Coal) ii. Over 95% the owner sometimes wins
ii. Sometimes means general laws are valid because they are helping out everyone (Penn Central) 2. nuisance common law) i. has right to police health. Permanent Physical Occupation by 3rd party/government is a taking (Loretto. Reciprocal advantages should match or at least equal the loss iii. Economic effect on the owner 1.
Parcel is a whole. to regulate 3. Is it reasonably necessary to affect a public purpose/interest? 5. and others benefit. Government permits a certain use of property on condition that the owner gives up other interest ii.Is it capable of earning a reasonable return? (Penn Central Transportation) v. Transferable Development Rights i. imposed height restrictions. but still a consideration because awareness of regulations "helps to shape a reasonableness of those expectations" (Palazzolo O'Connor plurality concur) 6. Diminishes the harm ± A had govt. §1983 allows for recovery of attorney's fees ii. Government must have a legitimate interest in restricting owner's use of property 2. Owners will be unequally burdened ± okay i. exchange free space and bike path for building expansion) i. Not an automatic bar. First English allows for recovery if delay is found to be a taking. If owner has multi lots. Holmes rejects both extremes of govt/private ii. When does it apply? 1. If not singled out. Look to timing of purchase to see if same parcel ii. not okay to claim 100% loss of part of land (Penn Central) i.Dolan Test
4. Estoppel Doctrine i.Dolan Test (Dolan. Policy: Where to draw the line ± what if taken for a day ± but rule is more than 1 year is suspect 8. State interest 1. B lives in target zone. Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law (Penn Coal) 1. Nolan . may be combined as single parcel ± large owners easier for govt. and A sells development rights to B 1. city may not be able to change (permit would be evidence) 10. but does not show something is a taking ± Tahoe Sierra distinguished 12. Nolan . Cannot divide in time (Tahoe Sierra) 2. City gives an approval and owner invests money. Damages i. Exaction Takings 1. Policy: gives only part compensation. less likely a taking 7. Plurality.
. Would it be a taking? 1. Transfer of Title (Palazzolo) i. but that makes it not a taking (good for government because they do not have to pay 100%) 9. Temporary takings 1. but main holding does not consider awareness of regulatory taking ii.
Duty i. Fish. and possibly. Probably not a taking if under the public trust doctrine
i. To act in best interest of the public ii. hunt. Nexus between government interest and property interest ii. so not compensate because never had right (Matthews. to preserve natural state of land iii. with public trust consideration) 5. Private Conveyances/Sales i. exact money ± only 2 cases in Supreme Court & those ask for land 4. must compensate for improvements iii. What is certainly subject to public trust? i. Places that the public has come to use and value over time ± come to expect as theirs ii. Two steps i. bathe. N. Proportionality (Dolan added second prong to Nolan test) i. If granted right. must minimize harm to public trust (National A. Policy i. What public uses may be subject to public trust? i. May make revocable conveyance to private if for use of the public 1. CA: if generally applicable law. If so. (National Audubon Society. May need to balance other needs of the public 1.
. Non-tidal lands under navigable freshwater lakes 3.. Public need to divert water to LA must be balanced 2.J. Beaches because must use those to access the beach waters ± like background state law. If revoke. Is this subject to public trust? ii. swim. Is the impact of what owner wants to do proportionate to what city asks for 1. use bottom of water for anchoring. Left unanswered (split): can govt. foot proportionate to new need for housing 3. As far as feasible. diversion of non-navigable streams subject to extent harm navigable waters) iv. then not subject to Nolan ± Dolan cause more like a tax 13. Tidelands at high-tide mark (subject to ebb and flow of the tide) ii. must allow access to dry sand) 4. what other public interests must be balanced? 2.Reasonable relationship between government interest AND property interest i. State cannot convey all interest to private party and avoid responsibility of trust 6. The Public Trust Doctrine 1.S. The giving and getting is roughly proportionate ii. that right is subject to what is best for the public ii. Ex: for each additional sq.
Elements i. Need some evidence that owner had intent to convey to you 3. Absent color of title. All other 4 must exist the whole time 2. Good faith v. is deciding what's best ± anti-democratic Effect on private property ± property purchased may be valueless and no compensation under PT
Real Property Transfers 1. Actual possession 1. Adverse Possession (ACE-HO) 1. Tolling i.
iii. Color of title: an invalid document purporting to give title ii. Good faith claim (minority) i. CA: actual possession of one lot does not give right to other lots ii. must occupy entire space i. Wrongful against proper owner but rightful against rest of the world 2. Bad faith claim (Maine ± vast minority)
. Statute of limitations does not start if owner has certain disabilities (military. Acted in way that gives owner cause of action for ejectment (generally not "hostile") (Tioga) ii. must still meet other AP elements 3. Does not matter if you believe land is yours ± subjective irrelevant (ITT Rayonier) ii. From 5-60 years. Hostility/Claim of right 1. Tacking i. Exclusivity 1. Subjective: must believe land is yours (Halpern) iii. Successive adverse possessors must generally be in privity (agreement between successors) ii. Possession must be type that would be expected of an owner (not necessarily "exclusive") 2.ii. under age) 4. Continuity for Statutory Period 1. No significant gap in possession iii. not legislature. Utah 7 5. bad faith i. Policy: messy to get into state of possessors mind ii. You must behave like the owner i. Physical presence on property 2. Others must not also occupy or claim the land iv.
Eminent domain vs. public trust: there is a problem ± some justices think public trust must be limited so not transforming private property into public property without just compensation Judges. Objective (majority) i. iv. Only applies to extend boundary.
Requirements 1. So conspicuous that it is generally known to the public i. any interest) in real property requires a written instrument i. The Requirement of a Written Instrument (Required by the Statute of Frauds) 1. Tends to clear up administrative problems: mistakes. Informal documents for conveyance (deeds) i. Minority: don¶t require clear description if can be reasonable deduced 5. Temporary occupancy iii. Simply not using easement does not trigger loss by adverse possession. others a positive factor for adverse possession 2. trust. Might be clear enough for grantor and grantee but not to put purchaser on notice
i. pay taxes 2. Owner has knowledge or reason to have knowledge (Marengo Cave. No claim of right i. Federal land and most state law not subject to AP 3. Statement of an intent to convey a present conveyance i. Can be transferred like any other property ii. Limited purpose of use v. lost deeds. longer time = less accurate for sorting out property ii. eject trespassers. Burden of Proof on 5. For adverse possession 1. Openness and notoriety 1. so not AP) vi. owner can't see. Clear who the grantor and grantee are 4. Description of the property i. Estate (lease. Same requirements to gain an easement ii. Policy i. Puts property in hands of who values it the most 2. Title of AP i. The property owner relies belief that land in theirs i. Be in writing and be signed by grantor 2. Ex: fences. Some: must pay taxes. Encourages trespassers 2. would need to be denied use (ouster) 2. Deed must be delivered (see 3 below) 3. Against adverse possession (especially bad faith) 1.You must think the property is not yours otherwise not "hostile" 3. Cannot be recorded because does not arise from a recordable document but an action of law 6. Exception: Estate at will or term not exceeding one year 2. Easements by adverse possession i. Asking permission to be on the land ii. Undercuts recording acts 4.
Protect against fraud (especially when someone has died) 3. Balance against counter fraud when someone has relied on a oral contract 3. Deed Must be Delivered 1. Considerations (payment) 2. Consequences: Will hurt those who did really want to enter into an agreement ii. if don¶t do that.
. Government involvement 3. Payment of purchase i. Majority: If the buyer has take possession and paid all or part of the contract price i. then shows indication not to sell 2. Statute of Frauds: If action not meant to be carried out within an year iv. Lawyer 3. Clear and convincing evidence (not mere preponderance) v. Since can write agreement. State price or method of fixing price 3. Must appear that failure to enforce would amount to fraud ii. Remedy: if cannot demand specific performance. Buyer has accepted a deed from the seller 4. Sufficient (for specific performance) 1. Policy: can be repaid 2. Burden of Proof 1. Written requirements 1. Description of the real estate ± must make identification possible 2. Insufficient (for specific performance) 1.Mere invitation to stay on land not conveyance (In re O¶Neil¶s Will) ii. Notary (Majority) 4. When one party¶s reasonable detrimental reliance on the contract would make it inequitable to not enforce it (// promissory estoppel) i. Not required/optional 1. Collateral change of position (not specifically on promise) 3. Policy: 1. Party against whom enforcement is sought admits in court that contract for conveyance was made 5. In writing or 2. Reasonable certainty of an intent to convey ii. then can award damages vi. Requirements
ii. Minority of states do not recognize past performance iii. Consider availability of other remedies 3. Encourage the writing and recording of conveyances (not open up oral contract floodgates) i. Contracts for the sale of real estate i.
No cause of action against the grantor 3. Special Warranty Deed 1. Present intent to impart makes different than a will i. deemed delivered on day it is delivered to escrow 2. Grantor usually covenants only concerning interests created by grantor (not liable for past owners) 3. Death escrow ii. Includes all 5 covenants listed below 2. Types of Deeds i.Must show present intent to impart irrevocable 1. Does not run with the land for future grantees 4. No covenants ± ³as is´ 2. Putting in safety deposit box with exclusive access for joint tenants ii. Showing deed/handing it over (should get on video) 4. Delivering deed to third party iii. must still how intent to part irrevocably i. If irrevocable. Present Covenants (at the time of conveyance) (SERF-Q) i. Full Warranty 1. Grantor conveys everything it has (susceptible to surprise of grantor¶s true rights) 2. Recording (if not fraudulent (Lenhart v. Fee: present covenants are more similar to contract law and future covenants are more similar to property law ± fee thinks there isn¶t a good reason you shouldn¶t be able to convey your cause of action for the present covenants to future grantee¶s ± puts in worse position (limited to SOL)
i. With death escrows. Grantor liable to remote grantee for breach of future covenants ii. Sufficient (if irrevocable) i. Includes some of the 5 covenants 2. daughter takes from safety deposit box and records)) 3. Grantor promises nothing 4. Must give outright (constructive or actual) ownership at that time (gift is given inter vivos) 3. Quit-Claim Deed 1. Breached only if title is defective or encumbered at time of conveyances 2. Deed Covenants 1.
. Desmond. Insufficient i. ³A is now the owner´ 2. Grantor¶s liability to remote grantees depends on the statute iii. Generally 1. Majority: can only be brought by the original grantee to whom the covenant was made 3. Possible supporting factors (show intent to impart irrevocably) i. If unrecorded and in the grantor¶s possession 4.
Covenants of quiet enjoyment and warranty 1. 3 types i. Common Law: First in time gets it i. Breached only in the event of actual or constructive eviction of the grantee 4. Covenant of the right to convey 1. etc. actual knowledge) iv.
. Provide notice to the whole world 2. not relevant ii. Policy Problem: to way to know what you¶re truly getting 2. Runs with the land i. Modern Law. Who Gets It? 1. Benefits immediate and future grantees ii. Limited to consideration except for Further Assurance iv. Damages i. Statutory creation 2. Someone with paramount title will not evict. Want to put iii. and if evicted. Future Covenants i. 3. Protect owners 3. Breached when 3rd party successfully asserts a higher title against the beneficiary of the covenant 2. If aware/actual knowledge of encumbrances. If grantee has notice of another interest. If no consideration (gift). If grantee has actual knowledge of another interest. Race
ii. Anything else a person warrants to do to perfect the title iii. Grantor has the power and authority to make the conveyance 3. Grantor if peaceably in possession under a freehold title i. may be estopped from suit (Babb. Covenant against encumbrances 1. dowers. Protect buyers 4. Doctrine that grantee is estopped from bringing claim iii. No other rights or interest in the property has been conveyed 2. and 0 compensatory Recording Acts 1. then only nominal damages. Generally 1. Purpose 1. liens. Covenant of further assurance 1.Covenant of seisin 1. then no cause of action against grantor i. Damages are the amount x needs to pay to keep the property ii. Feed from servitudes. grantee has a cause of action 2.
Leases under three years i. Recording (judicial records. whoever got it first iii. i. Adverse possession iii. fence around property. gets even though B wouldn¶t 2. If purchasing property. Something less than knowledge ii.First in time to record No need to record i. otherwise the real owner wins 2. Dower and curtsey rights vi. Road (Jefferson County). the B sells to D ± if D good faith purchaser. Subsequent good faith (without notice) purchaser for value wins 2. 2. footpath. Requires a bona fide purchaser 3. Inquiry (depending on jurisdiction) i.) iii. under the common law. What type of jurisdiction are we in? ii. tax assessments. etc. A sells to C (not record). Race-Notice 1. Knowledge ii. Is A¶s interest the type that can be recorded? 1.
. etc. 2. Notice 1. Recording Acts Analysis (O to A. Can give more than possess if A to B as a gift (does not record). etc. Beneficial interest in constructive or resulting trust ii. But must record options to purchase ± possible defense of inquiry notice ii. O to B) i. at least covered on inquiry iii. Even if record. Enough information to make it reasonable to inquire 1. Did B take without notice?
1. bankruptcy. may be required to ask tenants of their interests (can be through writing) 3. So. Constructive i. Same as notice IF they record first. purchaser would trump gift unless shelter rule ii. If it is not subject to the Recording Acts. No recording is needed 3. gift. do a visual inspection of the property and follow up ± if it reveals nothing. What is notice? i. Recording act doesn¶t work for inheritance. Actual i. Easements created by necessity iv. probate. Easements created by implication or prescription v. Is B a bona fide good faith purchaser for VALUE? 1.
thus outside the chain of title i. B won the land as soon as he recorded the land (if he was without notice) Wild Deeds (Deed recorded too early. Keep going until you find the root 5. then O to A 1. or gap in deeds) i. Literal reading is that B recorded before C 2.
5. Conveyances filed alphabetically by both names 2. Go forward in the grantor index to find any suspicious conveyances i. If B records and is a bona fide purchaser. O has property. assuming he had to record. Grantor Index and Grantee Index (majority of states) 1. Tract Indexes 1. Could face wild deed problem ii.
7. etc. C wins because B¶s win shelters her i. As between A and B. As the moment A gets the property from O. If A did not record in B¶s chain of title. 6. B to C
3. B originally has only an EQUITABLE INTEREST. O to A (not recorded).4. B gets it and A has no claim 3. the B to C (C has notice) 1. B can still prevail iv. A to B. then A records. A to B 1. record within B¶s chain of title? i. So a title search by going back in time through the chain of title 4. To the extent there are inconsistencies. Public documents. Start with the grantee 3.s 3. Cannot claim a wild deed Doctrine of Estoppel (Estopped by Deed) i. O to A (no record). There is no way C could have found B¶s deed 4. Problem is that B¶s duty is to record in all of O¶s chains of title including C. Indexed by a piece of land 2. C gets it even with notice of A because C is sheltered by B 2. O to B (record).
6. A to B (recorded).
Who recorded first? Did A. Solution: B needs to go record in O¶s name Deed recorded too late. A is estopped from asserting an adverse claim Shelter Rule i. and thus subsequent purchasers cannot look up title ii. Otherwise B couldn¶t be a full purchaser because couldn¶t grant gifts 3. not legal interest i. N to O. Wild because O transferred before having legal possession. 4.
8. O to B (recorded). tax records. O to C (recorded) 1. probate records. Equitable interest is what purchaser has prior to legal interest 2. O to A (O does not have legal possession yet). O to A (not recorded). and multiple rights granted. first in time prevails if properly recorded Recoding Indexes and Title Searching i.
Fair use: defense to infringement (Packman. Considered abandoned if non use and no intent to resume use within the reasonably foreseeable future 1. ³Amos µn¶ Andy´) i. Source of authority: federal statute (from the commerce clause) ii. Unlike property law. not secondary) 2. Balance: rights of the trademark owners with others who wish to use the same or similar trademark 1. Encourage development of new ideas 2. May also lose/abandonment through loss of distinctiveness (becomes too common) vi. Trademark Law 1. name. In commerce ± as a way of identifying (Marketing activities) iii. §§ 1051-1127 i. If can show likelihood of use in reasonably foreseeable future. Rebuttable prima facia evidence: three years of more of non-use (according to GATT) (Silverman v. Principal v. Purpose: protect ownership rights which encourages development of new ideas (no fixed supply) iii. Actual use as a signal ii. Protects registered marks if 1. or any combination thereof´ used ³to identify and distinguish one¶s goods or services from those of others ³and to indicate the source´ of those goods or services ii.C. Lanham Act 15 U. If mark is senior.S. Supplemental Registers i. or device. Being registered is prima facia evidence of a valid trademark 4. CBS. ¨¶s use is likely to cause confusion 3. still protected in its geographic area (but must be registered to receive federal protection) 2.g. Policy 1. ³Any word. trademark law sets time limits to owner¶s rights v. Balance: reward creators for enriching public welfare without unduly sacrificing public¶s interest in enjoying the work 2. symbol. Principal Register
. Generally i. reason for non use) 2. years of non-use rebutted (e. even if not registered. Mark is protectable and 2. ³joy of six´ not used in same way ± descriptive. Split courts on if to A or C Intellectual Property 1. Trademark Requirements i. In interstate commerce (federal requirement to meet commerce clause) 1.1. Only granted the right to prevent other trademark uses that are likely to cause consumer confusion iv. Ginger Spice audition.
Will consumers be confused as to the source? iv. than can appeal through courts or do Supplemental R 2. but when acquires a secondary meaning then registrable i. must verify mark is used in commerce ± then put on Principal Registrar i. Strength of the defendant¶s mark (weakest to strongest) (weak can be a fair use defense) 1. Arbitrary. Can use to assert state rights iv. after registration. Generic i. No rights until actually in use and actually registered (not just applied) 4. At the beginning is not a trademark. Does not enjoy full protection 3. Degree of Similarity between the two marks iii. Actual confusion
1. Then. Kleenex.Provides constructive notice that mark is in use and actual notice of marks that have been taken 2.
. Purposes i. Proximity of the Products 1. Descriptive i. Additional state and international requirements 5. Can usually be transferred to Principal after 5 years iii. Have 30 days to oppose another¶s registration 3. Can all be registered ii. Registered 10 years but can renew ii. Secondary meaning is mental assoc. Aspirin ii. If there is only a subtle difference. Levi) (sophisticated degree holders have good faith in the actual strength and quality of proximate bridges) i. in buyer¶s mind between mark & single source 3. Can use ® iii. Register through applying to Patent and Trademark Office (PTO) i. Supplemental Register 1. Xerox. Likelihood that the prior owner will bridge the gap 1. Can never be registered iii. Kentucky Fried Chicken ii. Must show when mark first used (to show priority) i. Gives notice of marks in use ii. then senior mark has right to move into that market v. If examiner does not consider mark registrable. Priority only extends to markets you¶re in or are very likely to expand to ii. Describes not distinguishable characteristic 2. Fanciful (from more descriptive to arbitrary) i. Suggestive. Polaroid Test (used in Jordache v.
Codified in 17 U. dramatic works. Not necessary. & sculptural works. but cannot sue for infringement unless copyrighted v. Infringement and Fair Use Test (§ 107) (Religious Technology Center. news reporting. Duration: life of author + 70 years 2. Is there a fair use? 3. Includes literary. What of that has been copied? iii. Merger doctrine: if only limited number of ways to describe something (rules.
viii. motion pictures. graphic. not new (just not copied) ii. Protected upon creation. recipe). Purpose: promotion of the arts and sciences iv. phonebook info not original) 1. Policy: Primary objective of copyright is not to reward labor of authors. Creative or factual? (original) ii. Scientology) (PANE) i. confusion of consumers who see product and are led to other product 2. Generally i. Creative coordination and arrangement of facts could be protectable iii.
3. Joint or individual as to their contributions? 2. Originality Requirement i. iii. Test i. sounds. vii. but to promote the progress of science and arts 5. Will it bring down value of senior product or 2. including whether such use is of a commercial nature or is for nonprofit educational purposes 1. Ownership of a valid copyright ii. comment. Is it a work for hire? iv. scholarship 2. No valid copyright for facts because not original(Feist Publications.vi. Levis: argument to sophistication increased likelihood of confusion
1. More acceptable: criticism.
Confusion at purchase. If use of the work was for commercial gain
. Just has to be original.S. musical. Copyright Law 1. then cannot copyright vi. Unauthorized copying of constituent elements of the work that are original 4. Who has what interest? 1.C. etc ii. Are they of the same quality and thus seem to have the same source Sophistication of the consumers 1. but could use surveys Defendant¶s good faith Quality of the defendant¶s product 1. Source of authority: Clause 8 of the federal constitution 1. The purpose and character of the use. Is there a valid copyright and what is its scope? 1. Requirement to Recover i. pictorial.
Not less than $500 or more than $20. if individual. ³Work made for hire´ i. If not work for hire. Location of the work 4. Damages Factors i. each over the whole. if willful then up to $100.000. How many acts of infringement occurred 1. See Infringement and Fair Use Test ii. Plaintiff gathers information at a cost
ii. Factual less protected than novel/fantasy because less need for novel work 2. The tax treatment of the hired party iii. Whether the hiring party is in business 11. Duration of the relationship between the parties 5. With intention of merger into a unitary whole 2. Whether the work is part of the regular business of the hiring party 10.
. Publicity 1. ³Hot news´ test ± protected 1. To what degree do the relevant postings infringe 1. If joint. Did ¨ represent that he owned the copyrighted work? 2. is it a joint work? 1. Possible factors (no one is determinative) 1.The nature of the copyrighted work 1.000. The hired party¶s role in hiring and paying assistants 9. then over what you created 4. ³hot-news´ exception only survives preemption for narrow scope) i. Def: ³work prepared by an employee within the scope of his or her employment´ or a ³work specially ordered or commissioned´ through express written agreement ii. One infringement per copyrighted work iii. The method of payment 8. *Control of end products and means to that end 2. Narrower allowance if unpublished iii. Whether the hiring party has the right to assign additional projects to the hired party 6. Quantitative and qualitative components iv. Misappropriation of Information ± don¶t need copyright (according to Motorola. The extent of the hired party¶s discretion over when and how long to work 7. The amount and substantiality of the portion used in relation to the copyrighted work as a whole 1. The provision of employee benefits 12. To what extent was the infringement willful 1. Source of instruments and tools 3. if unaware than $200 7. The effect of the use upon the potential market for or value of the copyrighted work 6.
ii. 3. Split: ii. Right to actual image. some not): right of publicity may be descendible(Elvis) iii. some common law.
The information is time-sensitive A defendant¶s use of the information if free-riding The defendant is in direct competition with a product or service offered by the plaintiffs 5. Publicity i. a mere image not a trademark if not identified with particular source (Tiger Woods painting) (Vanna White) iv.2. The ability of others to free-ride would so reduce the incentive to produce the product or service that its extensive or quality would be substantially threatened Problem is when ¨ free rides off with a directly competitive product because lower costs
2. For publicity: celebrities have plenty of incentives to pursue fame. Split (some recognize by statute. (Vanna White) Okay for advertisers to remind public of celebrity 1. but not to control our thoughts Reducing too much to private property dangerous ± stifles creative forc
. discourage deception with regard to sponsorship v. For right to exclude: encourages people to reach celebrity status because creating valuable capital for heirs. individuals right of testamentary distribution.