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Five Theories of Property
First, Labor, Happiness, Democracy, Personhood
NOTE - Maximize Social Happiness-Also, economic viability. 3 basic features of property rights: i. Universality- everything must be owned ii. Exclusivity- prevent others from using property iii. Transferability- ability to transfer title or possession What is Property?-"Bundle of Rights" (4 general rights) and aren't absolute. DUET – DESTROY, USE, EXCLUDE, TRANSFER iv. Right to transfer v. Right to exclude vi. Right to use vii. Right to destroy 1. "Bundle of Rights"- if given establish property rights. If none, you aren't owner. b. Property Rights defined by government; Not natural, only when recognized. c. Property Rights are not absolute d. Property Rights can be divided; shared. e. Property Rights evolve as law changes The Rule of CAPTURE 1. Pierson v. Post: Unknown Objects (N.Y. 1805)2. Rule: If a wild animal is being pursued but still has natural liberty, it is not occupied until it is wounded or captured to prevent its natural liberty. Subject to control of pursuer and rendered escape impossible. Majority went w/ clearer rule. 3. Reasoning: The court uses Justinian law and other precedents to find for Pierson. Though unkind, Pierson had a right to kill and take a wild animal being pursued on unowned land. No one owns land. If Post owned the land ratiaone soli (title of occupancy, landowner is in constructive possession of wild animals therein). 2 conflicting theories: a. Formalism-applying legal principles to facts (found in majority opinion) b. Instrumentalism/Legal Realism-laws should reflect changes of time; instrument of society's needs. (found in dissent) What Acts Constitute Possession of a Wild Animal to the point that you can exclude the claims of others to that animal? 1. Do something that shows to the world that you are trying to exercise control over the animal (ex: mortally wounding) 2. Be the first to Exercise control over Mere Pursuit of the Fox is Not Enough!! Remember, possession is central to the concept of ownership, but it is not determinative. POD: c. Greene asks if Post had yelled "the fox is mine", would it matter? No change based on case. Possession doesn't mean the same things in all contexts d. Greene says Pierson's argument is best, absolute and concrete. 1
Basically, possession v. chase (closing in). Why? If you don't have a remedy, you don't have a right. e. First Possession- this case used for wild animals and later oil, water, body parts, homerun balls, etc. Who 1st deprived wild animal of liberty? f. When Does Labor Matter? Don't want to cause chaos and unneeded litigation by adopting "mere pursuit" rule? g. Capture Hypos: i. Post owns the deer because it prevented natural liberty ii. Pierson owns the rabbit because it was returned to ferae naturae iii. Pierson owns the rabbit because it still has natural liberty iv. Post own the cow because it is not a wild beast but domesticated h. On exam: i. Can object be deemed property? 1. Look at statutes and courts, then public policy, then rules; then public policy reasons encouraged by the rule. 2. In this case, promoting maximizing societal happiness through economic efficiency. Some personal development but a lot of 1st possession. Dissent is encouraging labor. **Don't be conclusory in rule or motivated by policy DISCOVERY doctrine: Discovery: not much is undiscovered today, but the idea that property could be acquired through discovery has some modern implications.
Johnson v. M’Intosh (U.S. Supreme Court): The Americans were able to take over the title from the Indians because the Indians were considered a conquered people, so the dominant party wins.
Rule: The conquering nation has the exclusive title rights to land and can transfer title. The Indians are merely occupants (though they are entitled to compensation). Only US can be recipient of Indian lands. Indians only had right to use. Bases this on custom. Developed in historical context. Greene says response was natural reaction of someone taking your home. 3 ways conquerors got land: i. Purchase j. By force: killing; running off inhabitants k. Removal (Eventually) M'Intosh claim to title-Cabot discovered. US wins from Britain in war. US didn't reject Discovery doctrine. Indians have more of landlord/tenant relationship w/ US. Court uses 4 Judicial approaches: ON EXAM l. formalism-objective application of rules to fact to get your conclusion m. Instrumentalism-rules of law that reflect social change or changes in society 2
n. Legal Realism-judges make rules/laws wholly based on what is happening in society at the time (justifies or determined by) o. Critical Race Theory-establishing rules that reinforce Eurocentric legal principles and subordinates non-Eurocentric legal principles This was an action for EJECTMENT (3 Elements): A. Plaintiff has title. B. P was wrongfully dispossessed. c. P suffered damages/harm. In ejectment, D is in possession. In trespass, P is in possession. POD: p. Bundle of Sticks-Only Occupancy rights Hypo from Greene (Johnson v. M'Intosh): US invades Mars; Discover martians. US sets up court and gives land to US citizens. Martians file suit in US DC. How would rule? Court would adhere to Discovery Doctrine. Why? We didn’t work to get to Mars for nothing. Arguments against? Int'l community would frown on kicking aliens out of their home planet. q. If Aliens settled in US like Bham. Then file action. What would court rule? 1st possession. r. **At times, deal w/ humanity and morality and other times, not so much. Ex/ you find unowned land: i. Find out if anyone claims to own it (govt, indigenous, private) ii. Not one body of property law, but intertwined w/ others like contracts, etc. s. **Property important to liberty and democracy 4. Joseph William Singer, Legal Theory: Sovereignty and Property- Indian property can still only be sold to government. Questions origins of American property law. Should we not pay the Indians compensation for taking their lands. 5. Humans as Property in Historical Context • Slaves subject to: Rule of Capture, Rule of Conquest, Inherited, and as a Gift a. The Antelope (U.S. 1825)-3 ships, American Portuguese and Spanish, were captured by pirates near Africa and the ships carried slaves. The vessels were later captured off the coast of the US. b. The question was to admit the Africans as free or return them to their owners. Slave trade was outlawed in 1808, so the American ship Africans were treated as free. No one claimed the Portuguese Africans, so they were free. The court ruled the Spanish Africans to be returned to their owners upon proper title. c. Chief Justice Marshall claimed that slavery goes against natural freedoms. However, when there is conflict b/t natural law and positive law, law recognized as legal by the nations of power, positive law must prevail b/c a jurists could not hold anyone accountable for an illegal act that had general consent. d. There was also a comparison to the Johnson v. M'Intosh case about "conquest gives title to the conqueror." Marshall acknowledges natural law but turns and goes w/ legal positivism. Marshall had chance to say Int'l slave trade was illegal. Preserved property 3
Reasoning: The court finds that Scott is still a slave under Missouri law. not mentioned. to rule otherwise goes against allowing humans to be commodities. Not court's place to overturn. She married another slave and had two little girls. Treated as property. I assume. Anita L Allen (1990)Facts: Polly Crockett was free but kidnapped and sold into slavery as a girl. ensured democracy. Surrogacy." One daughter escaped to Canada. Right to Transfer 1. 1857) Facts: Dred Scott. for his freedom. e. a citizen of NY. Int'l and national norm for some time. When Polly tried to go as well.S. D and appellant. a state that abolished slavery. Slavery.rule of promoting labor and rule of capture. The court argues that the constitution allowed for slaves to be imported for twenty more years and prohibited the fed government from interfering with those property rights indefinitely by allowing escaped slaves to be returned to their owners. The argument upheld was that though slavery exists. She found a lawyer. She sued for her daughter claiming that since she wasn't a slave when she gave birth. Proc. 1991) Big Idea: as one gains possession. a part of the sovereign people as recognized by the constitution? Frames issue more broadly to whether Scott or African Americans can be a citizen?? Holding: No Rule: The constitution does not give the power to the government to recognize the Missouri Compromise that takes recognized property from citizens when they move to states or territories that do not recognize the property. He was then sold to Sanford. but who are emancipated or born to free parents. Humans as Property in Contemporary Context 2. 4 . Disposition: Reversed. and the Ownership of Life. Her husband was sold "way down South. She tried to buy her other daughter but the owner wouldn't sell. Dred Scott v. Scott was a slave in Missouri and his master brought him to IL for 2 years. which didn't allow slavery per the Missouri Compromise. Founders did not view African Americans as human or citizens (free or slave). Tells us. her daughter wasn't a slave either. slaveholder himself. it is against the laws of God and man to deny one their freedom that has a right to it. and successfully sued for her freedom. Regents of the University of California (Cal. that the trial court ruled for Scott. Also. P and appellee. The court says the US government has no right to take property from owners though they move to states or territories that do not recognize slavery. sued Sanford. Issues: Is a Negro whose ancestors were imported to the US and sold as property. History: Scott sued Sanford for his freedom claiming diversity citizenship and that he was a citizen of Missouri. f. He was then taken to MN in the LA territory. but legislature's. The court agreed. she was captured in Chicago and returned. Sandford (U. Moore v. someone is dispossessed.
Regents of the University of California (Cal. 1990): Court found that Moore had no ownership because he never expected to retain possession of the cancerous spleen. Court says: 1. 3. Four Things to Take Away from Moore o In order for an action centered on a property tort (or some other similar action) to lie there is a necessary determination that property rights may be exerted over the object-of-inquiry— that the object may be legally “owned” and/or transferred. Holding: No. In the Matter of Baby M (N. and trade secrets (intellectual property) Moore v. Laws making consent to adoption revocable i. Whitehead? Right to transfer is diminished. o Courts and legislatures are the bodies American society has given the right to determine what may or may not constitute property. can't sell. Laws against termination of parental rights w/o proof of unfitness or abandonment c.J.o Creation: many property rights are created through copyrights. 1988) Issue: Is a surrogacy contract enforceable? Can we recognize child as property of Mrs. o The definition of “property” can be quite complex—simply because there is an “object” that can be physically possessed does not necessarily indicate that property rights may be exerted over it. Law prohibits paying money w/ any placement of child for adoption 5 . Rule: A surrogacy contract is invalid b/c it conflicts w/ laws of NJ and public policies of the state. o Determining that an item may constitute property can lead to foreseen and unforeseen consequences in law and society that are informed by history and prevailing societal trends. Prohibition against paying money for placement in adoption b. Adoption is considered a "gift". Reasoning: Conflict w/ statutes: a. Best interest of child is a big RULE (though presumption is natural mother). patents.
Taney's opinions and now Baby M (just opposite sides).free ability to transfer land (use w/ humans?) j. *Applies to Primary Occupiers (not necessarily the Purchasers) Ex: Wrongfully thought land was theirs – Invalid Deed > COLOR OF TITLE POLICY JUSTIFICATIONS FOR AP 1) Productive Use of Land 2) Preventing frivolous claims – fosters repose 3) Correct Title Defects – “You Know who it is” 4) Protect Personhood. Disposition: Remanded for custody determination. Similar themes run through Marshall. Vertical limits of ownership 3. Real Property-rights in land and things attached (bldgs. reliance interests CONS Rewarding Theft/trespass Preventing true owner from exer. real property was most important b/c of English system handed down and major theme in American development was to develop land for productive use ii. Possessor is given bundle of rights that title holder held. Coercive contract f. Termination of parental rights is serious and can only be done voluntarily to an approved agency and contracts can't terminate parental rights 3. fences. Concerns Undermines the whole legal system (deed process) 6 . Right to transfer *Ch. "Some things $ can't buy" in civilized society. Alienability. Stern is improper Conflicts w/ public policy: d.2. Melissa. Mother's consent to surrender child is revocable h. Water law iii. Adoption goes to highest bidder. trees) b. Relative 3. pens. computers) and intangible things (patents. Personal Property-rights in movable property (chairs. potential for middlemen to make a market out of this and exploit and degrade women Court says the legislature should take up the issue. Needed counseling for mother. needed criteria for parents adopting. Why limit transfer of body parts? Why not limit? i. shares in stock) i.autonomy Does not Preserve Envir. From "humans can be property" to "they can't". Adverse possession 2. Good balance b/t owner and society Adverse Possession- acquiring land by possession for length of time. Also. Court ruled that Sterns were in best interest of child. not child's interest e. regardless of suitability g. Not absolute 2. 2: Owning Real Property a. Property rights are: 1. Traditionally. 3 aspects of real property law (balance b/t rights of owners and interest to society: 1. meeting certain specifications. Therefore. Money is the facilitator of the transaction dealing w/ humans. the adoption by Mrs.
build a much bigger dwelling. location and nature b. Elements of Adverse Possession – AN ECHO Actual Possession-The claimant must actually physically use the land in the same manner that a reasonable owner would. and visible” requirement if a typical owner of similar property would make such limited use. Open and Notorious Possession—The claimant’s possession must be visible and obvious. and enters several times per year to hunt and fish. a. this will meet the “open. But if owner revokes permission then claim can move forward 7 . d. Any permission to use the land by the owner negates this element ii. so that if the owner made a reasonable inspection of the land. If D builds a small hunting cabin on the land. Exclusive Possession—The claimant’s possession cannot be shared with the owner or with the public in general c. notorious. etc. “Adverse and Hostile” Possession/Claim of Right i. he would become aware of the adverse claim EX: BLACKACRE is undeveloped wild land suitable only for hunting and fishing.5) Discourage Abandonment No Clear Cut Rules = increase Litigation 1. given its character. But it would not qualify if a typical owner would use the property more extensively.
Notes**Look out for on Exam*** o One act may satisfy multiple elements **On EXAM: apply facts to ALL elements (not isolated). and nature of the land f. Look at common law elements Determine if they have been meet for the statutory period of time Statutory adverse possession 8 . *Know difference b/t ejectment and quiet title. o Actual possession-they used it exercising control and dominion **In Alabama. *Also look at topography of land.To Defeat permission: 1. The most common ranges are 10. given the character. not "maybe" e. Continuous Possession—The claimant’s possession must be as continuous as a reasonable owner’s would be. depending on the state. there must be a consistent and persistent cutting of timber or wood from the tract of land as to be evidence of ownership (this is the minority view)** Alabama-2 types of adverse possession Adverse possession by prescription a. Show revocation of permission a. *both must be clear. For the Statutory Period—The period for adverse possession ranges from 5 to 40 years. 15 and 20 g. location. b.
or are (2) USUALLY CULTIVATED OR IMPROVED. Lutz 1. it must be shown by clear and convincing proof that . Either paid property taxes or derived title by descent or devisethrough estate statutes or through a gift or conveyance *AL statutory period is 20yrs o unless under color of title o (then 10 yrs AND either must pay property tax OR derive by descent (intestacy) or devise (gift or conveyance thru will). AL hostility requirement holds state of mind irrelevant-"adverse" is implied by meeting other requirements Van Valkenburgh v.. Possession under color of title—you think you have possession but your documentation is defectiveyou act under color of title b. Van Buren (Ark. Fulkerson v. Irrelevant-other adverse possession factors indicate a claim of right c." 2. 1998) –CHURCH CASE Issues: Was the possession by the church hostile? 9 .. Bad faith-adverse possessor knows its not his land and intends to take possession iii. The Adverse Possessor's State of Mind a. Most states agree that permission from the owner to be on the land is not "adverse and hostile" b.. 2. 3 approachesi. no color of title]. Plaintiff sues to enjoin defendant from encroaching on his land. Good faith-adverse possessor truly believes they own land ii.a. Brief Fact Summary A dispute between feuding neighbors.e. The essential elements of proof being either that the premises (1) are protected by a substantial inclosure. there was an ACTUAL occupation under a claim of title. Defendant asserts adverse possession as an affirmative defense. Rule of Law and Holding "To acquire title to real property by adverse possession not founded upon a written instrument [i.
title. Clear revocation of permission vii. Becomes part of personhood ii. The intention to hold adversely must be clear. Ouster 10 . it is only necessary that it be hostile in the sense that it is under a claim of right. Reasoning: Court discusses the benefits and detriments of both subjective and objective test for hostility. and all other elements of adverse possession are met. discourage abandonment iv. Make more difficult to prove adverse possession Reasons for Objective: iii. Rule: Required bad faith intent ("we knew from day 1 it was not ours"). he grows attached to the land. Impossible (vague) intent (more stability wanted) v. or subservience to the superior right of the holder of title to the land. Supermarkets General Corp. and improvements *Ways to defeat permission: vi. If land appears to be abandoned and a trespasser uses land for statutory period. or ownership as distinguished from possession in conformity w/.Holding: No. • Church could have tried OUSTER • You know you are not the sole owner • Try to exclude title holders from the land • Notify them you are asserting sole ownership rights How to defeat permission element of hostility Clear revocation of permission Ouster-recognizing they are sole owner and are excluding the title holder d. Producing effective use. • For adverse possession. (Pa. and cannot be displaced w/out cutting at his life. OBJECTIVE WINS Rule: If true owner has not ejected the interloper w/in statutory limits. v. good faith. color of title. • Mere possession of land is not enough to adversely possess. *Greene says some instances where you can adversely possess govt land: Usually if not been in public use (states). Discourage trespass The court sides with the public policy reasons behind Justice Holmes favoring objective. Reasons for subjective: i. Tioga Coal Co. recognition of. 43 USC 1068 (1986)-Fed govt has allowed adverse for 20 yrs. as opposed to objective? Holding: No. 1988) Issues: Should the test for hostility be subjective. hostility will be implied (objective). and there is every presumption that possession of land is in subordination to the holder of the legal title. distinct and unequivocal.
There must be hostile possession against title holder. Fagerstrom (Alaska 1990) **Case mentioned in book. not someone else. Reasoning: The court notes that the Fagerstrom's built a cabin in 1978. so they are only concerned w/ the preceding year to establish the 10yr statutory requirement.Dissenting Opinion: Justice McDermott dissents that Justice Holmes is no reason to change existing Pa law. So continuous. • Hostility is shown by objective standard that the possessor acted toward land as if he owned it w/out permission of legal authority to give possession. Others in the community recognized the Fagerstroms as owners. 11 . Court says that others being free to pick berries and fish is consistent w/ a hospitable landowner. NO PRESUMPTION OF AP e. Printed from Westlaw Issues: Does the continuous. Disposition: Reversed. substantial activity or absolute exclusivity? Holding: No. exclusive and notorious possession is established. POD: viii. Nome 2000 v. Rule: The condition of continuity and exclusivity require only that the land be used for the statutory period as the average owner of similar property would use it and physical visibility is required for notoriety. notorious and exclusive use of land require the existence of significant improvements. develop attachment Avoid land piracy or trespassing-avoid rewarding bad behavior Avoids abandonment of land-promotes productive use Hard to determine intent and possessor’s state of mind-state of mind can change over the statutory period Question though is what is reasonable use of land-what would the actual owner do? Policy reasons for subjective theory • Promote use of title recording system • Land is no longer wilderness-there may be a way to actually trace the title holders that didn’t exist when adverse possession doctrine developed Makes it more difficult to prove advserse possession. He claims Justice Holmes' approach is outdated. Role of Intent-Most jurisdictions don't require you know Policy reasons for objective theory Personhood-identify with the property.
in holding. It is not necessary that the occupant should be actually upon the premises continually. Court finds that using trails and cleaning on southern portion did not put owners on notice of hostile claim and the posts for boundaries are irrelevant especially since the one on the southern portion is missing. Howard v. They also vacated attorney's fees. Judicial action is not necessary If A occupies B’s land for the required period of satisfies the adverse possession elements. a. without litigation In this case. In order to establish "continuous" possession. . and caring for property of like nature and condition. If the land is occupied during the period of time during the year it is capable of use. 1970) RULES: 1. Tacking the adverse use of predecessors is allowed when there is privity of estate. stewards of the land irrelevant. Kunto (Wash." 2. b. . i. managing. Proving Adverse Possession Claims normally arise in two procedural situations • The adverse possessor brings a quiet title action to confirm his title (Gurwit) • The adverse possessor raises the doctrine as a defense to an owner’s lawsuit to recover possession (Van Valkenburgh) a. an actor need only possess in a manner that "ordinarily marks the conduct of owners in general. A automatically acquires title to B’s land when the period ends. there is sufficient continuity. . an 12 .Court finds the argument of owners v. Subjectivity is not the standard for hostility. the claimant brings a quiet title action or a former owner may voluntarily give over the deed Tacking The adverse possession period of two or more successive occupants may be added together to meet the statutory period under this doctrine ii. 3. In other words. i.
Continuity Revisited. for example. church or use of the land POD: i. No possession actually passed.No official transfer. period. 133-134: must be at beginning of adverse possession and cannot "tack" them Disabilities. iv. The same could have happened regardless of A's statement to B. Also statute of frauds. Tacking should be allowed. Not in line w/ wrongdoer. privity shown. and lack of mental capacity.adverse possessor may aggregate the time of successive occupants. because A is insane? The period will be extended. *Look at disabilities p. 5: Estates and Future Interest 13 . True owner re-enters and takes physical possession (not all states) 3. Gray area. Share part of land w/ trespasser 4. Yes. iii. and the transfer of possession was in good faith. Common – Imprisonment. so long as possession was continuous. Definition of PRIVITY Reasonable connection between successive occupants of real property so as to raise claim of right above the status of wrongdoer or trespasser Privity is not destroyed where the deed relied upon did not give description of the land occupied 4 instances that would destroy continuity • True owner files lawsuit to recover possession and lawsuit leads to judgment in favor of the owner • True owner interrupts adverse possession claim by re-entering land and taking physical possession of the land • Trespasser uses land • Adverse possessor abandons possession or has significant absence from the property that does not comport with nature. What happens if owner A is unable to sue adverse possessor B during the state’s 10 year stat. Tacking Basics-most states only allow if successive owners are in privity ii. Successive privity. Adverse possessor abandons or has a significant absence. True owner files suit for possession and judgment given in his favor 2. Tackle These Hypos p. More in line w/ trespasser 2. minority. a.Summer occupancy does not destroy continuity. 4 events that could destroy continuity: 1. 1331.HANDOUT Ch. More official. LOOK AT DISABILITIES PROBLEMS .
Tenants became unhappy about payments for incidents and Magna Carta (1215) addressed this. *Though one who holds life estate pur autre vie can devise it or allow intestate succession. A Short History 1. Traditionally used "and his heirs" to indicate fee simple (no interest given to heirs). A has right to posses in her lifetime and then when she dies. Incidents became more important b/c times of peace required less need for knights. return of land if tenant died w/out heirs (escheat). 2 types of estates: i. created by elaborate ceremony called feoffment with livery of seisin. Duration is potentially infinite. Devisable-can be transferred by will at death iii. Ex/ O gives his parcel of Redacre to A for life and then to B. Nonfreehold Estates: created informally and held by common people. This led tenants-in-chief to create subtenures. Fee simple 2. 1066 William the Conqueror and the Normans defeated the Saxon army in England and he began distributing land to his small band of Norman followers to reward them and administer the conquered territory. Today it is presumed unless another is specified. Life estate-rarely used but equitable life estate is commonly used in modern trust. B has right to posses. but not devisable or descendable. By definition. He borrowed Norman feudal system which king owned all land and granted possessory rights to followers (tenants-in-chief). Fee tail a. Holder has all rights in metaphorical bundle of sticks. Alienable-can be sold or given away during the owner's lifetime ii. the estate terminates. Much like modern lease. ii. and special payments in times of financial emergency. Life estate 3. As long as 3rd party is still living. or similar business entities. Grantor retains future interest (reversion) for when grantee dies. A has an estate (comes from Latin word for status) (present possessory interest) and B has a future interest (right to future possession). They provided services and incidents to king. Incidents included an oath of fealty. no future interest accompanies fee simple. It is alienable. Most common service was knight service (provide set number of knights to king's army). It is freely: i. a. Generally held by nobles and gentry and deemed to have seisin (special form of possession). The knights in turn would grant a small portion of land to another person in exchange for payment of money or % of harvest.1. 1290 the Statute Quia Emptores. *Biggest difference in modern estates and old England-Now fee simple is default. So knights became lords (mesne lords). a. right to possession of land until a deceased tenant's heir reached 21. corporations. Modern Freehold Estates-6 freehold estates: 1. 14 . which gave tenants right to transfer w/out lord's permission which signaled demise of feudal system and beginning of free alienability (right to transfer). also has variants called fee simple defeasibles. monetary payments for right of tenant's eldest son to succeed in tenancy. where they distributed possessory rights to their own tenants. When life tenant dies. Also have pur autre vie (for life of another). Descendible-can pass by laws of intestate succession if owner dies w/out will 2. Fee simple absolute-99% of land in US. a. Was the life estate. Freehold Estates: 1. "for life" are traditional words of limitations. Life estate cannot be created in favor of partnerships.
4. 5. 6.
b. Future interest is usually a reversion but if transfer is to "B for life, then to C", future interest is a remainder (held by 3rd party) Fee tail-almost extinct in US; most coveted in medieval England (keep land w/in family). Duration determined by lives of lineal descendants. Way to keep land in family. Passed from eldest son to eldest son as long a bloodline lasted. Abolished in England in 1925. America didn't like it b/c of fear it would undermine democracy and impair freedom of alienation. DE, ME, MA, and RI are only states that allow it. "the heirs of his body" were limiting words. Grantor retains reversion for when line of lineal descendants expires. Limited right to transfer: Grantee can transfer but transfers back to Grantee's descendants upon his death. Fee tail maleonly passes to male descendants. Fee tail special-only allows transfer to descendants of transferee who are parented by particular person. Fee simple determinable Fee simple subject to a condition subsequent Fee simple subject to an executory limitation a. Key distinguishing factor b/t 6 freehold estates is duration (how long they exist). Ex/ fee simple absolute is potentially infinite while life estates lsts only for a person's lifetime *Estate or future interest is usually transferred in 1 of 3 ways: a. Deed-living person may transfer real property by deed. Completed transfer is a conveyance or grant. Verbs to describe transfer are convey or grant. Person making transfer is grantor and recipient is grantee. b. Will-property of decedent can be transferred by will. Completed transfer is a devise (also the verb to describe transfer). Person whose will contains devise is testator (male) or testatrix (female) and recipient is devisee. *Different terms apply to transfer of personal property by will c. Intestate Succession-if person dies w/out will, property is distributed by state statutes (usually to closest living relatives). Completed transfer is intestate succession. Verb used to describe transfer of real property is descend while recipient is heir. *Different terms apply to transfer of personal property by intestate succession. i. Future interest in Grantee: 1. Reversion 2. Possibility of Reverter 3. Right of reentry ii. Future interest in Transferee (3rd party): 1. Remainder 2. Executory interest
Background 1. Demise of Feudal System in England a. Statute Quia Emptores i. Gave a tenant the right to transfer his land without permission from the lord ii. Multiple people could have rights in the same parcel of land at the same time iii. Two types of estates were recognized
• • • • • •
Freehold estates Fee Simple Life Estate Fee Tail Held mainly by noble and gentry Nonfreehold estates • Created informally • Held by common people
Modern Freehold Estates 1. Six Freehold Estates a. Fee Simple Absolute b. Life Estate c. Fee Tail d. Fee Simple Determinable e. Fee Simple Subject to Condition Subsequent f. Fee Simple Subject to Executory Limitation Notes Fee Simple Absolute is dominant estate today Ways an estate or future interest is
• Transfer by deed A living person transfers real property by a deed. The completed transfer is called a conveyance or a grant. The verb is to grant or to convey • Transfer by will The property of a decedent may be transferred by a will. The completed transfer of real property is called a devise. The verb is “to devise” Male testator. Female testatrix • Transfer by intestate succession If a person dies without a will, her property will be distributed according to state statutes Verb is “descend” Completed transaction if called intestate succession Heirs are recipients of the property. A living person has heirs apparent
2. a. b. c. d.
e. f. g. h.
Fee Simple Absolute –IS THE DEFAULT!!!! If you own a home, likely you hold a fee simple absolute estate Embodies the largest group of private rights recognized The duration is potentially indefinite Under English system, a person could convey a fee simple only if the words “and heirs” was in the deed. Today, it is not necessary to include those words—if a conveyance does not contain words that expressly describe the estate, it is presumed the grantor conveyed the largest possible estate Freely alienable-it can be sold or given away during the owner’s lifetime Devisable-it can be transferred by will at death Descendible-it can pass by the laws of intestate succession of the owner dies without a will Class Notes i. “And his heirs” are words of limitation-shows what type of estate ii. If convey to a corporation or entity then use “and its successors and assigns” iii. Heirs don’t get anything by the language
Brief Fact Summary Testatrix left a will that stated "I wish Evelyn White to have my home to live in and not to be sold." Ms. White filed action to declare that she had fee simple interest in the home. The nieces and nephews of the testatrix are the defendants in the action and claim that Ms. White has only a life estate in the home. Rule of Law and Holding While the common law originally favored the life estate, a modern interpretation creates a strong presumption that a fee simple interest was conveyed. A fee simple will be conveyed unless the words and phrases of the will or other transfering document clearly evidence an intention to transfer less than a fee simple. 17
White v. Brown (Tenn. 1977)
O conveys to D for 200 years = Life estate. Restraints on Alienation1. *Life Estate holder must: a. Inc. = Life estate w/ reversion 2. Restraints on Alienation i. Promissory restraint-stipulates that the transferee promises not to transfer interest a. scope. O conveys to B until he dies. Three types of restraints • Disabling restraint—A restraint that prevents the transferee form transferring her interest 18 . Pay taxes and mortgage b. Cannot commit waste d. Forfeiture restraint-leads to forfeiture of title if transferee attempts to transfer interest 3. Outcome in furtherance of writer's intent Disposition: Reversed decrees of trial court and appeals court and remanded. partial restraints may be valid if reasonable as to duration. Make reasonable repairs c. Lide's Intent-As a lawyer for Lide if intent was life estate: 1. If such a provision expressly prohibits the future transfer of a fee simple. = Life estate for F only 6. it is void against public policy iii. O devises to C for life. "White to live in home for her life" If intent was fee simple: 2. These provisions prohibit or limit a future transfer of the property ii. Disputes b/t life estate holder and future interest holder arise. Disabling restraint-prevent transferee from transferring interests 2. POD: v. O conveys to F for life. Common law doctrine of waste resolves the life tenant to use property in manner that does not significantly injure the rights of the future interest holder. then to X = Life estate w/ remainder 3. O’s heirs vested remainder in fee simple 5. w/ reversion 4. Then F conveys her interest to Google. then to Z for life = E has a life estate. life estate. Z vested remainder in life estate. and purpose vii. O conveys to E for life.***Exam prob: iii. Modern presumption on fee simple when language is unclear iv. "White and her heirs" vi. Absolute restraints on fee simple are void as to public policy. c. Life Estate Problems1.
Forfeiture restraint—A restraint that leads to a forfeiture of title if the transferee attempts to transfer her interest • Promissory restraint—A restraint that stipulates that he transferee promises not to transfer her interest • Woodrick v. 1. anything which in any way altered the identity of leased premises was waste. Majority Approach is that an action in waste lies only where the alterations reduce the value of the property Minority view (Common Law)-a life tenant could not alter the property in any substantial way-even if it increased its value Types of Waster 1..g. The Ohio rule is that a life tenant has the right to make beneficial use of the property even though she would be altering the land in order to do so 4. At common law. The relevant inquiry is always whether the contemplated act of the life tenant would result in diminution of the value of the property. The destruction of the barn (because it would not decrease the value of the land) does not constitute waste – even though D finds the removal objectionable 5. regardless of whether the act happened to be beneficial or detrimental to the remainder interest 3. Wood (Court of Appeals of Ohio 1994) P is suing for an injunction to keep D from removing a barn which is on property on which P has a remainder interest Issue: Whether the holder of a remainder interest in a parcel of land may prohibit the life tenant of such property from destroying structures on the land. demolishing a valuable house) 19 . Voluntary Waste results from an affirmative act that significantly reduces the value of the property (e. Waste – An abuse or destructive use of property by one in rightful possession 2.
building a swimming pool) A FUTURE INTEREST HOLDER MAY OBTAIN DAMAGES OR INJUNCTIVE RELIEF IF THE LIFE TENANT COMMITS VOLUNTARY OR PERMISSIVE WASTE. Ameliorative Waste results from an affirmative act that leads to a substantial change in the property and increases its value (e. Permissive Waste results from failure to take reasonable care to protect the estate (e. failing to make minor repairs or pay property taxes) 3..g. MOST STATES DO NOT RECOGNIZE AMELIORATIVE WASTE 20 . HOWEVER.g.2.
Defeasible Estate • Grantor retains divesting future interest • The type of estate dictates the future interest • If it’s determinable-it’s possibility of reverter 21 5. The holder has limited right to transfer the estate iii. Cannot commit waste 4. Expressed as a wish • In this case there are not repercussions 3.Life Estate Holder 1. Created by a conveyance to a named person and “the heirs of his body” ii. Must pay taxes and mortgage on the land 2. e. a. d. Must make reasonable repairs 3. It is not devisable because it automatically passes to the lineal heir upon the holder’s death Fee Simple Defeasible Three ways courts construct restrictive language 1. Restrictive Covenants o Can sue for injunctive relief or damages o The holder does not forfeit the land 2. Fee Tail Most important estate for landed aristocracy in medieval England The duration is determined by the lives of the lineal descendants of a particular person Almost extinct in the United States Only four states allow it Basic Form i. b. . c.
and descendible ii. rather. devisable. Fee Simple Subject to Condition Subsequent • • • A fee simple estate created in a transferee that may be terminated at the election of the transferor when a certain condition or event occurs If the condition happens. The potentially infinite duration of the fee simple will be cut short if the event or condition happen Characterized by words like “so long as” “while” “until” and “during” The future interest that follows is always a “possibility of reverter” which can only be retained by the transferor (or his heirs). b. this estate does not end automatically. giving the right of possession to the transferor. Fee Simple Determinable Is a fee simple estate that automatically ends when a certain event or condition occurs.• If it’s subject to condition subsequent – it’s called a right of entry or power of termination • The estate ends automatically when the condition is met or restriction violated a. It cannot be created in a transferee The possibility of reverter always becomes possessory upon the happening of the stated condition It is freely alienable. An estate that may end upon the occurrence of some future event Three types i. the transferor has the power to terminate the estate by taking action Characterized by words like “provided that” “but if” “on condition that” 22 .
Big idea is what is future interest: i. divesting the transferee of possession Unlike fee simple determinable. devisable and descendible Case Mahrenholz v. It cannot be created in the transferee When the condition occurs. the estate is not automatically terminated Freely alienable.• • • • • A “right of entry” or “power of termination” always follows a fee simple subject to condition subsequent The future interest can only be retained by the transferor (or his heirs). Fee Simple Subject to Executory Limitation • • • • • • Created in a transferee that is followed by a future interest in another transferee The future interest is held by a third party Created by same words as other two But the distinguishing characteristic is that the future interest is held by a transferee NOT THE TRANSFEROR The future interest that follows is an executor interest Alienable. But Harry released his future interest to the school district . the holder of the future interest can release the interest to the holder of the present estate MAHRENHOLZ . devisable and descendible iii. County Board of Lawrence County (Appellate Court IL-1981) Had the court decided it was a fee simple subject to a condition subsequent. Harry Hutton had to reenter and reclaim land before he owned it. courts generally construe the estate as a fee simple subject to a condition subsequent 23 . land reverted back to Harry Hutton as soon as not used for school. Under common law. Possibility of reverter ii. If this is the case the Mahrenholz’s have no interest in the property. c. Hutton would have right of reentry. If fee simple subject to condition subsequent. the transferor can elect to re-enter the property. Rules: If fee simple determinable. When language is ambiguous. It would become a fee simple absolute after he took action. Right to reentry "otherwise revert back to Grantor herein" is only defining language.
*In most modern jurisdictions-possibility of reverter and right to reentry is freely alienable and devisable. ii. i. iii. but not alienable or devisable (sold. the fee simple subject to a condition subsequent (presenting only a limited risk of forfeiture) is preferred over the fee simple determinable (which results in automatic forfeiture) Right to re-entry At common law. gift. **So know if applying common law or modern rules 24 . right to re-entry and possibility of reverter could be transferred only through intestate succession to the holder’s heirs – ONLY DESCENDIBLE Today. e. Doctrine of waste generally does not apply to fee simple defeasible Common Law i. most jurisdictions allow free alienation of both interests d. ii.i. or will). Social policy abhors the forfeiture of estates because this interferes with marketability Therefore. Transferring Future Interest-Both determinable and subject to condition subsequent are descendible at common law. These two future interests also can be released to the current possessor of the estate f. Possibility of reverter and right of entry were not alienable or devisable-they were only descendable through intestate succession ii.
elect to declare a forfeiture The grantor has a reasonable time after breach within which to declare a forfeiture If he fails to declare a forfeiture within that time. i. Future Interests Retained by the Transferor Arises when a transferor conveys an estate to a third party which is smaller than the estate she holds a. his power to do so has expired NOTES • Court says grantors heirs waived their right of re-entry • Waiver is an intentional relinquishment of a known right or intentional conduct inconsistent with claiming the right • The waiver differs from a laches or estoppel defense where the possessor must show reliance • The SOL for adverse possession for a fee simple determinable starts to run as soon as the condition is broken • The SOL for adverse possession with a fee simple subject to a condition subsequent starts when the grantor exercises the right of termination or right of re-entry C. or his heirs. Can a grantee acquire title by adverse possession following a breach of a condition subsequent but prior to a claim of forfeiture? NO Can the lapse of an extensive period of time between breach and an election of forfeiture waive or extinguish the condition? YES • • • RATIONALE Continued possession and enjoyment of property does not become adverse to any possessory estate of the grantor until the latter. Reversion A transferor retains a reversion when she conveys an estate smaller than the one she has Future interest remaining in the transferor when she grants a vested estate of lesser quantum than she began with 25 . ii. Modern Future Interests 1.
b. Alienable. that is: Future Interests Created in a Transferee Remainders A remainder is a future interest in a transferee o Capable of becoming possessory immediately upon the expiration of the prior estate o And. devisable. ii.iii. 2. i. this future interest gives the transferor the right to possession if that estate terminates Alienable. and descendible in almost all jurisdictions Right of Entry Future interest retained by the transferor who holds a few simple absolute but conveys a fee simple subject to a condition subsequent The right of entry does not become possessory until and unless the holder takes affirmative steps to regain possession Alienable. and descendible in almost all jurisdictions iii. devisable. i. buy conveys a fee simple determinable Since there is a possibility that the fee simple determinable might end. iii. Indefeasibility vested remainder Remainder is vested if it is created in an ascertainable person and is not subject to a condition precedent other than the natural termination of the prior estate 26 . i. ii. devisable. does not divest or cut short any interest in a prior transferee a. and descendible Possibility of Reverter Future interest retained by transferor who holds a fee simple absolute. c.
i.ii.ID THE CONTINGENT INTEREST 2. devisable. If O conveys Greenacre “to A for life. LIST THE LIVES IN BEING 27 . contingent ii. it is called a springing executor interest • If a transferee is divested. Executory Interests • Future interest that must divest another estate or interest to become possessory • If an executor interest divests the transferor. and descendible in all jurisdictions D. it is Remainder given either to an unascertainable person or subject to a condition precedent b. i. d. Rule Against Perpetuities MY NOTES ADD 21 TO THE END OF A LIFE NO INTEREST IS GOOD IF IT’S STILL HANGING OUT THERE AFTER 100 YEARS 1. If the remainder is not vested. B holds an indefeasibly vested remainder-a remainder in an identifiable person that is certain to become a possessory estate Vested remainder subject to devisement Remainder that is vested but that is subject to a condition subsequent Vested remainder subject to open Vested remainder held by one or more living members of a group or class that may be enlarged in the future Contingent remainder i. it is a shifting executory interest • Today. c. then to B”. they are alienable.
Possibilities of Reverter 28 4. A must die leaving a child 3. Leaseholds f. but no children. Of reverter 3) To A for life. A fee simple determinable.3. KILL OFF THE LIVES IN BEING AT SOME FUTURE DATE AND ADD 21 YEARS 5. 1) O to B for life. 1. then to A’s children. A is alive. FINALLY. then to M if M lives to be 50. . no later than 21 years after some life in being at the creation of the interest The rule limits the duration of a contingent interest by providing that is void unless it must vest or forever fail within 21 years of the death of a life in being A contingent interest is valid only if you can logically prove that it will either vest or forever fail to vest within the perpetuities period (a life in being plus 21 years) If there is any possibility that the interest might vest more than 21 years from the death of the relevant lives in being. Contingent Remainders b. Vested Remainders Subject to Open Interests not subject to the rule a. Fee Tails d. 2. will we know if the future interest can take? If there is a child to take 1. Measure by A’s life 4. ASK IS THERE ANY POSSIBILITY THAT THE CONTINGENT INTEREST WILL VEST AFTER THIS POINT. the future interest is void when created Only three interests are subject to the rule a. there is a contingent interest 2. CONSIDER WHETHER ANYONE CAN BE BORN WHO MIGHT AFFECT VESTING 4. No interest is good unless it must vest. Reversions g. if at all. 3. O poss. VOID AT THE TIME MADE. IF SO. Life Estates e. Within A’s death. 2) O to A so long as used for residential purposes. 5. Fee Simple Absolutes b. Fee Simple Defeasibles c. 6. Executory Interests c.
but might not The holder won’t be identified until the death of someone merely described rather than named Class gifts following another class gifts—because someone not alive now will move into the class If the ultimate grantee is a label. Conveyance requires that a holder survive someone who is merely described and not named e. A has possessory 29 . The question is not whether the interest might vest the question is whether there is any possibility the future interest might not vest within the permitted time period Situations where an interest is more likely to be subject to the RAP a. B & C are A's kids ages 30. A life estate. Rights of Entry 8. • • • • • • • • • More RAP Danger Signs The condition is not personal to someone There is an identified age or time period of more than 21 years An interest is given to a generation after the next generation (for example. then to A's children. 32. An event that normally would not take place within 21 years 9. A's children have vested remainder subject to open. When there is an identified age or time period of more than 21 years c. 7. A's children have contingent remainder. A has no children at time of conveyance. When the condition is not personal to someone b.h. Analysis: We'll know if remainder will vest or fail at A's death. A is alive. So valid. O to A for life. to grandchildren) A conveyance requires that a holder survive someone who is merely described rather than named An identified event that would normally happen well within 21 years. not a name If you have to have an event occur that is not a death or that doesn’t have to be performed by a particular person o Greene's Hypos: O to A for life. What if A has 2 children at conveyance? Still valid. then to A's children who reach 30. Conveyance that skips a generation d.
(Ex/ O to A for life. So A has life estate and O has reversion. BUT might not. Interest is valid if satisfied common law or vests within 90 years of its creation 30 . but if land is ever used for tavern. at death. o Only 3 interest are subject to the rule: Contingent remainders Executory interests o Use following steps: Identify contingent interest List the lives in being Consider whether anyone can be born who might affect vesting Kill off lives in being at some future date and add 21 years Ask yourself "is there any possibility that the contingent interest will vest after this point?" If so. If not. won't know if D will reach age 30 for 30 yrs. Whoever has contingent remainder in fee simple absolute. Rule of perpetuities doesn't apply to B (see below). A has life estate. valid. What is realistic not possible b. then to B.estate in life estate. O has reversion in fee simple. B vested remainder subject to executory limitation. Analysis: If A has child. Uniform Statutory Rule Against Perpetuities i. Children have vested remainder subject to open. D. This violates rule of perpetuities. O to A for life. A has possessory life estate. B vested remainder in term of yrs. Modern Reforms a. then to whoever received A's land in distribution of estate. void. Whoever is void. then to C. then B for 20 yrs. Wait and See i. Interest is void is actually does not vest within the 21 years of the death of a life in being ii. C's interest fails. o Signs for Alarm that may Violate Rule: Not personal (Ex/ but if anyone finds cure for cancer) Identifies age requirement of more than 21 yrs Skips a generation (Ex/ then to B's grandchildren) Conveyance to holder who is only described but no name Event that would normally happen w/in 21 yrs. C shifting executory interest. *Note class doesn't close (or vest) until all kids are 30. O reversion in fee simple absolute. 10.
ii. 4 • Identity of the Parties The Price Property Description Be a Writing 31 . SELLING REAL PROPERTY A. i. Statute of Frauds As a general rule. i. The Purchase Contract 1. Essential Terms Must Be In Writing 1 • 2 • 3 ii. an oral agreement for the sale of an interest in real property is not enforceable b. Cy Press Courts rewrite language of the conveyance so it no longer violates the RAP Considers grantors intent when re-writing Savings clauses Write the conveyance in such a way as to save the interest IV. a. d.c. A written contract gotta have 5 things: i.
Failure to comply with the Statute does not make the contract void-it simply prevents it from being enforced The writing provides greater certainty about intentions. Takes possession ii. Makes improvements to the property o Courts reason that the buyer would perform these actions only if a contract existed so this conduct serves as a substitute for the writing b. 2. ii. AND Serious injury would result is enforcement is refused Equitable Estoppel-An oral contract may e. a. Electronic documents can satisfy the SOF ii. and written agreements indicate a heightened level of seriousness about the agreement Electronic Signatures i. 32 . d. One party acts to his detriment in reasonable reliance on another’s oral promise. Signature o 5 The writing must be signed by the party against whom enforcement is sought – normally the buyer c.o Can be a formal contract or an informal memorandum iii. less problems with intent as opposed to oral agreement. A person can be bound by an electronic signature Exceptions to the Statute of Frauds Part Performance—An oral contract for the sale of real property may be enforced if the buyer: i. Pays at least part of the purchase price iii. be enforced if i.
even if signed by the grantor. conveys nothing The grantor must manifest an intention to immediately transfer title to the grantee The deed is only effective when it is Elements of Delivery • Intention by grantor to immediately transfer • Objective manifestation • Acceptance by grantee (even if grantee is unaware of the gift) 2.Courts generally apply the doctrine if the complaining party has relied on the oral agreement by selling another property or by refusing other offers for the property in dispute B. c. The Closing 1. Rosengrant v. non before from the old days • Special Warranty Deed **Delivery a. Rosengrant 33 . delivered b. An undelivered deed. The Deed 3 types • General Warranty Deed • Quit Claim Deed – no warranties! o Best type of deed – free from all defects o Grantor warrants title against all defects whether they arose before or after grantor possessed or obtained title o Worst type of deed o Grantor makes no warranties about the title o Grantor warrants title for all defects that occur after the grantor obtained title.
use and control the property and pay taxes on it and claim it as his homestead until he died. He continued to farm the land. The true intent of the parties is evidenced on the envelope.Issue(s): Under OK property law. The fact that the grantors continued to occupy the land. Legal delivery is not just a symbolic gesture. Must be in writing 34 . Court's Rationale/Reasoning: On the envelope of the deed it said that it was to be given to either the grantor or the grantee which shows that Harold was free to retrieve the deed as he wanted before his death. If the grantors intended for Jay to have the land. Class Notes o What was missing from this deed was the intent that the grantor be immediately bound and transfer title o This was probably testamentary intent-intent to give someone interest when dies o WILLS i. was there was legal delivery of title from Harold & Mildred to Jay? Holding: There was no legal delivery to Jay so the title was void. His actions also show that he intended to reserve a right of retrieval. This shows that he was trying to use the deed as a will and under OK law this cannot be done. they could have simply given it to him and told him to record it. grantor's actions are nothing more than an attempt to employ the deed as if it were a will. There was only a symbolic delivery. Rule: Grantor's intent at the time the deed was delivered is the most important factor in transfers of title Where a grantor delivers a deed under which he reserves a right of retrieval and attaches to that delivery the condition that the deed is to become operative only after the death of the grantors and further continues to use the property as if no transfer had occurred. paid taxes on it and offered to sell it once shows that they did not make an actual delivery of the deed to Jay. There were 2 conditions that needed to be satisfied before the grant could take effect and those were 1) that both parties died and 2) that the deed was recorded. Concurrences: There was no reason to believe Jay who was the only person from the parties that was still alive.
and instructs the third person to deliver it to the grantee on the grantor's death. iii. b. he thereby makes an effective delivery as a matter of law. Compliance with statute Need witness for a valid will Who being gifted to Possibly need witnesses 3. Vasquez When a grantor delivers a deed to a third person without a reservation of a right to recall it. RULE Delivery as Intent Uniform Simplification of Land Transfers Act defines delivery as “an act manifesting an intent to make a present transfer of real estate” Restatement (Second) of Property indicates delivery is accomplished when “the donor manifests that the document is to be legally operative which the donor is alive” Physical Delivery Most states-the manual transfer of deed creates a presumption that the deed has been delivered Delivery is also presumed if the deed is recorded In some states. a. 4. absence of a manual transfer creates a presumption of nondelivery Vasquez v. 5. b. a. iv.ii. v. c. 35 .
Each may transfer to another person (alienable. descendible.V. B and C as tenants in common” and then B conveys her interest to A. Each has the right to use and possess the whole parcel even if his fractional interest in smaller than the interests of others iv. fractional interest in the property ii. devisable) iii. Concurrent Ownership Each cotenant has the right to use and possess the entire property 1. PRESUMPTION i. Example If O conveys to “A. A holds 2/3 interest and C holds 1/2. Each tenant has an undivided. Modern Concurrent Estates a. C has as much right to use and enjoy the property as A but 36 Tenancy in Common – THE . CONCURRENT OWNERSHIP AND MARITAL PROPERTY A. A and C are tenants in common.
use and enjoy the whole property o If any of the four unities is missing. Each joint tenant has right of survivorship When A dies. If one joint tenant transfers her interest. Joint Tenancy i. A’s interest in the estate is removed and B automatically becomes to the sole owner v. iv. vi. Joint tenancy is NOT devisable or descendible Common Law: Four Unities Required • o Time-all tenants must acquire their interests at the same time o Title-they must acquire title by the same instrument (will or deed) o Interest-they must have the same shares in the estate. Most marketable type of concurrent estate b. The right of survivorship is destroyed 37 . the proceeds will be divided according to the proportionate shares v. equal in size and duration If one grantee gets a 10 year tenancy and another a life estate this unity is destroyed o Possession-must have equal right to possess. the joint tenancy is severed. The transfer breaks unities of time and title. then a tenancy in common is created vii.when the property is sold. “to A and B as joint tenants with right of survivorship” ii. Joint tenants have undivided right to use and possess the whole property iii.
and the grantee becomes a tenant in common with the other concurrent owners. NEITHER DEVISABLE NOR DESCENDIBLE IN JOINT TENANCY c. Tenancy by the Entirety Created if O conveys “to A and B as tenants by the entirety” ii. b. the language did not conform to the statutory requirements – No right of survivorship. i. THE FOUR UNITIES. divorce. or agreement of both spouses v. Taylor HOLDING o The Court held that although it was obvious that Eura intended to create a joint tenancy. Each has undivided right to use and possess the whole property and a right of survivorship iv. (The statute overrode the rules of construction) REASONING • At common law. But many statutes. BUT The other previous owners retain their joint tenancy 3 DISTINCTIONS W/ TENANCY IN COMMON: a. Can only be severed by death. have adopted rules that presumptively construe an instrument to create a tenancy in common rather than a joint tenancy Nothing appears from the four corners of the deed to indicate Redmond’s intent to convey a survivorship interest 38 • . that estate was held to exist. the joint tenancy is severed by breaking unity and forms a tenancy in common w/ a new tenant c. Only married couples can hold property in tenancy by the entirety iii. Time and title – If one joint tenant transfers his interest. joint tenancy was favored and where possible. Neither spouse may transfer or encumber his or her interest without permission from the other spouse CASES James v. including Arkansas.
Joint tenancy “To A and B as joint tenants with right of survivorship” iii. Sale ii. Severance a. c. b. If wording is unclear. Action in partition 39 o The law presumes the grantor intends to create a tenancy in common absent express language to the contrary o Preferred language Tenancy in common “To A and B as tenants in . A joint tenant can end the tenancy by conveying her interest to a third party What about mortgages? Or leases? Three ways to sever a joint tenancy i. common” ii. courts may ignore the grantor’s actual intent but the modern trend is to focus more on grantor’s intent and less of formulaic language 2. Tenancy by the entirety “To A and B as husband and wife as tenants by the entirety” iv.• • • • The language of the deed is insufficient to overcome the statutory presumption of a tenancy in common • Here the third child introduces extrinsic evidence to help the court interpret the grantor’s intent She told her attorney if one of children died she wanted that interest to go to the other children She changed names on bank accounts when her first children died The court decides not to follow the extrinsic evidence and instead relies on statutory rules of presumption which in Arkansas were that the grantor intended a tenancy in common minus express language to the contrary More modern rule is that courts will consider extrinsic evidence to help determine grantor’s intent as opposed to statutory language EXAM-if see fact pattern with both then apply both and reach a conclusion and throw in a property theory as to why the outcome is “correct” There is not necessarily one right answer • • • Notes i.
Lein Theory o Mortgage is viewed merely as a lein to secure payment so it does not sever a joint tenancy because the unities are preserved. keeps it intact o If a foreclosure takes place the unities are destroyed and the joint tenancy is severed Tenhet v. • 40 . e. Boswell o Joint tenant leased property to D for a person of 10 years without knowledge or consent of other joint tenant o Joint tenant lessor died three months after execution of the lease and P sought to establish her sole right of the property as the surviving joint tenant o The lease did not create a severance o The lease of the joint tenancy property expires when the lessor dies HOLDING A joint tenant leases his interest in the joint tenancy property to a third person for a term of years and then dies during that term. Mutual agreement to convert the estate In most jurisdictions a lease does not sever a joint tenancy Mortgages will sever a joint tenancy in some jurisdictions and not in others know these 2 theories! i. • • • Title Theory Mortgage conveys title to 3rd party and thus severs the joint tenancy Minority Rule-only 10 states follow it Alabama follows this rule ii. iii.d.
transfer.• The lease does not sever the joint tenancy. destroy) that exist with ownership A partition judgment ends the cotenancy and distributes its assets Agreements not to Partition i. Terminates cotenancy 41 b. but expires upon the death of the lessor joint tenant • When joint tenant dies. Consequences of partition by sale • Diminish wealth building capacity • Destroy ancestral lands • Destroy cultural traditions • Disproportionate impact on certain communities • Destroys mode of survival • Eliminates the bundle of rights (use. c. . possess. But if reasonable in duration and purpose then most jurisdictions allow an agreement against partition Three common law default actions 1) Partition i. Partition Any tenant in common has the right to sue for partition of the property i. Most courts state the presumption if for a partition in kind where the land is divided but many courts allow partition by sale • This ensures cotenants retain the same estate they had prior to partition • Avoids need to impose sale on unwilling cotenants ii. 4. Traditionally viewed as a restraint on alienation ii. a. the lease expires and the other joint tenant(s) retain that interest 3.
Asking for one cotent to contribute or reimburse the other for certain expenses ii. Equitable action ii. but other descendants were unwilling to sell. insurance charges. Taxes. etc. Does not terminate cotenancy Case Ark Land Co. 2) ii. and the other can seek contribution iv. Asking cotenant to give benefits of rent iii. taxes. mortgages iii. Contribution i.iii. 42 • • . Partition in kind-divides up land Partition by sale-sell land and cotenants share the proceeds Action in Accounting i. Normally it is the cotenant not in possession seeking the money from the cotenant in possession Does not terminate cotenancy share 3) v. did not control when deciding whether to order that the property be partitioned in kind or partitioned by a sale. As a general rule. as opposed to maintaining it as a family homestead. which wanted to mine the property for coal. Harper Court of Appeals of W. each cotenant is responsible for his pro-rata share of mortgage payments. Normally only occurs in connection with a partition v.V. Seeking from a cotenant their pro-rata iv. 2004 FACTS • The corporation. Family used the land for reunions and family gatherings The supreme court of appeals held the fact that the corporation's proposed use of the property caused it to be worth more money. bought undivided interests in the property from some descendants of the original owners. v.
• Consequently. was not a determinative factor in forcing the heirs to give up their rights through a forced partition by sale Court considered the emotional or sentimental attachment. could be considered and controlled because the property could be partitioned in kind. Evidence of the heirs' long-standing ownership of the property. and one who wants a particular estate for a specific use. partition in kind is the preferred method of partition because it leaves cotenants holding the same estates as before and does not force a sale on unwilling cotenants. The corporation's self-created enhancement of the property's value. however large. was to be construed narrowly. and their sentimental or emotional interests in it. W. This is because a particular piece of real estate cannot be replaced by any sum of money. • Presumption is for partition in kind and a burden must be overcome for a partition by sale • Economic value of the property is not the exclusive test for deciding whether to partition in kind or by sale • The emotional interest would be prejudiced in this case by a sale of the property • Court balances personhood theory with utilitarian/economic good theory A party requesting partition by sale must meet 3 requirements: Property cannot be conveniently petitioned in kind Interest of one or more parties will be promoted by sale 43 • . the longstanding ownership and the economic harm The economic harm to Ark Land is relevant but not determinative REASONING Partition by sale. even though it caused some economic inconvenience to the corporation.• • • • • Partition in kind was the preferred partition method. Va. based on the corporation's expectation that it could mine coal on it. cannot be said to receive an exact equivalent or complete indemnity by the payment of a sum of money. when it is not voluntary by all parties. can be a harsh result for the cotenant(s) who opposes the sale. and the partitioning sale statute. Code § 37-4-3. if deprived of his rights.
ii. d. c. a. i. Prove partition in kind would result in great prejudice. Interest of other parties will not be prejudiced by sale. Rents 44 . ii. i. the majority rule is that you are not entitled to collect payment from a cotenant But if a cotenant makes needed repairs he will receive a credit for those costs in a partition action and the cotenant who improves the property receives a credit equal to the increased market value produced by the improvement b. Right to Occupancy A cotenant in possession does not owe any rent to a cotenant out of possession. i. absent an ouster An ouster occurs when a cotenant in possession refuses to allow another cotenant to occupy the property Sharing Rents and Profits Each cotenant is entitled to his proportionate share of all rents and profits derived from the land Sharing Costs If you make improvements or repairs. Cotenant Rights and Duties Majority RULE: no rent is owed by one in possession absent ouster (forced eviction from land or refuses request to possess) Minority RULE: occupiers must provide rent to those not occupying property. To show prejudice for partition in kind: • Resources not divided equally on land (ex/ house) • Some parts don't have sacred ground • Part is worth more • Topography is different 4.
Minority Rule • Those in possession give or provide rent to those cotenants not in possession Estevez RULES • As a general proposition.. that does not give him the right to impose an occupancy charge on the other. a tenant who has been in sole possession of the property demands contribution toward operating and maintenance expenses from his co-owner. and that is true even if the former had been out of possession and the latter in possession of the property. mcneely 45 • • . an owner who has paid less than his pro-rata share of operating and maintenance expenses of the property. All tenants in common have a right to occupy all of the property and if one chooses not to do so. imposes no obligation on the former to make any contribution to the latter. gomes. To reject such a credit and nonetheless require a contribution to operating and maintenance expenses from someone who had enjoyed none of the benefits of occupancy would be patently unfair. when on a final accounting following sale. absent an ouster • Ouster occurs when the cotenant in possession refuses to allow the other to use or possess the property-must be express and explicit ii. The fact that one tenant in common occupies the property and the other does not. on a sale of commonly owned property. fairness and equity dictate that the one seeking that contribution allow a corresponding credit for the value of his sole occupancy of the premises. Notwithstanding the general rules. must account to a coowner who has contributed more than his pro-rata share. Majority Rule • A cotenant does not owe any rent to a cotenant out of possession.i. The party seeking the credit for the other's occupancy of the property has the burden of demonstrating the actual rental value of the property enjoyed by the occupying co-tenant • • • • • This court takes a middle of the road approach between the majority and minority rule and says the contribution amount should be offset by fair rental value of the cotenant in possession’s sole occupancy Get brit/linds’s notes on Twen cases chuck v.
Law gave husband an estate jure uxoris("by right of the wife") in all wife's land. utilitarian use of land prevails McNeely – what is happening in the blackbelt of AL – getting land through intestacy and some sell of their share to companies who partition for sale. Gomes. If he died. Separate Property System a. or sell and could be reached by creditors. mort. During the Marriage i. B. i. The creditors of a particular spouse can only attach the separate property of that spouse b. o *many states passed Married Women's Property Acts giving same rights as single women and protected her property from husband's creditors MS was 1st state to enact Married Women's Property Actsequality of husband and wife.Partition by Sale vs. manage and dispose of property (except clothing and jewelry). Women lost ability to own. Hawaii cases point to importance of land ownership where there is not plenty. Marital Property 1. applies to both spouses. 46 . not marriage o *Dower rights did not apply to joint tenancy o *in few states still recognizing dower. Divorce Most separate property states require the equitable distribution of the property owned by each spouse taking into account incomes. He could use. common law gave widow dower: 1/3 life estate in all freehold land which: • Was owned by husband • Inheritable by his issue o *these could not be cancelled during marriage and were attached to property o Curtesy-right of husband and arose at birth of child. McNeely argues these partition claims are having disproportionate effect on rural areas (particularly African-Americans) hard to prove unconstitutional bad intent. Property is separately owned by the spouse who acquires it ii. In Kind? Lose ancestral land in Chuck v. Married women couldn't even enter into legal contracts or execute other legal docs. Common Law Foundation o Reflected profound gender bias. 2 ways to view: • Empower wives to equal of husband • Disempower husband so neither can transfer 2.
Does not provide a forced share to the survivor Tenancy by the Entirety a. This means the survivor has a choice: Take under the decedent’s will. Divorce i. Decedent may devise her half of the community property and all her separate property as she or he desires ii.• • standard of living. their contributions during the marriage. or Receive a defined portion of the decedent’s estatewhich is usually 1/3 or 1/2 share Community Property System a. During the Marriage i. Each spouse holds an equal. 4. their age and health. cotenancy . All community property is divided between the spouses c. Death i. Neither spouse has a right of survivorship iv. At Death i. although neither can transfer that share to a third party iii. Property acquired before marriage or after marriage by gift or inheritance remains the separate property of the individual spouse b. and the length of the marriage c. Most states offer the surviving spouse a “forced share” or “elective share” of the decedent’s estate ii. All earnings during the marriage and all assets acquired from those earnings are owned by both spouses equally ii. Only half the states recognize this 47 3. The other half of the community property belongs to the surviving spouse iii. undivided share in the community property. any special needs.
That means they effectively held a lien on his property. o He had no liability insurance. creditors May offer significant protection from Case Sawada v. Endo didn't technically have an individual interest in the house. Endo could not take out a mortgage on the property without Mrs. Sawada appealed. If it were a joint tenancy.b. o Since Mr. o After the judgment. and Mrs. o The Appellate Court found that under Hawaii law. by tenancy in entirety of a house. Endo did not individually own anything. and was found liable for about $25k. so sued to have the conveyance set aside and seize the property. • The Trial Court found for Endo and refused to set aside the conveyance. Endo could take out a mortgage on his interest in the property. they conveyed the property to their sons. Endo was attempting to hide the asset so it couldn't be seized by Sawada. o Endo did not reserve a life estate. Mr. Endo's actions in giving his property away so it couldn't be seized amounted to fraud. • The Appellate Court affirmed. Mr. Endo. Endo' wife died. a husband and wife do not have separate divisible interests in property held in a tenancy in entirety. there was nothing that was subject to the claims of Mr. For example. o Obviously. 48 . Hiding assets from creditors by giving them away prior to a tort judgment is a fraudulent conveyance. Mr. the house was owned by both of them. and is a criminal act. Endo's permission. but continued to live there. • Endo and his wife were owners. • Sawada was unable to get the $25k from Endo. Endo's creditors. o Sawada argued that the judgment made them defacto creditors of Mr. After the accident. Endo – can’t touch this! Hawaii (1977) • Endo was at fault in a car accident with the Sawada sisters.
and North Carolina) o Common law tenancy by the entireties. and Mrs. • The basic rule is that an estate by the entirety is not subject to the claims of the creditors of one of the spouses during their joint lives. Endo's interest was severable from Mrs. o The possession and profits of the estate are subject to the husband’s exclusive dominion and control. Endo couldn't sell the house or give it away without his wife's permission. o The husband may convey the entire estate subject only to the possibility that the wife may become 49 . unaffected by the Married Women’s Property Acts. o If the property had been held under a joint tenancy. the entire property would revert to Mr. then each Endo would own an equal interest and that interest could be seized by a creditor (turning it into a tenancy in common). • In a dissent it was argued that this was not fair to the Sawadas. and that Mr. Therefore. since Sawada could never seize the property.Coverture Model-(Massachusetts. so therefore he could never have it taken from him without his wife's permission. Secures family future by not allowing debts. Endo each owned half the property and that Mr. it was not fraud for the Endos to give it away. etc. Michigan. o If Mrs. The IRS ignores this rule. o You can't go after the assets of a spouse for debts incurred by the other spouse. Endo's exclusive ownership. Should the court promote its idea of what family means? Reasoning Group I . Except the IRS. Endo's. Edno had died prior to judgment (and the property hadn't been given to their sons). o That's the way it is under New Jersey State law. and it could have been seized by Sawada. o Public Policy of protecting the Family.
they debtors can’t attack the wife’s interest.. Missouri. Creditors can’t attach to this! Group IV (Kentucky and Tennessee) • The contingent right of survivorship of either spouse is separately alienable by him and attachable by his creditors during the marriage. but if she dies first. and Oregon) The interest of the debtor spouse in the estate may be sold or levied for his or her separate debts. New York. The right of survivorship is levied upon. subject to the other spouse’s contingent right of survivorship. Alaska: the interest of a debtor spouse in any type of estate. the interests of a husband or a wife in an estate by the entireties is not subject to the claims of his or her individual creditors 50 . Arkansas.. o The obverse of the wife does not hold true o In Mass. and Wyoming) • An attempted conveyance by either spouse is wholly void. shall be subject to his or her separate debts.entitled to the whole estate upon surviving him. Ex. except a homestead as defined and held in tenancy by the entirety. Rhode Island. they can attach to the husband’s interest. Vermont. o Doesn’t really exist anymore. Florida. may neither be alienated attached during coverture.C. Virginia. Pennsylvania. Creditor has a defeasible interest. The use and profits. the estate in entirety is subject to levy by the husband’s creditors o In NC and Mich. Group III (Delaware. In this case. Indiana. New Jersey. if the husband dies. o Under the Married Women’s Property Acts. and the estate may not be subjected to the separate debts of one spouse only. THIS COURT: o Joins group III.. Creditor would have a defeasible interest. Group II (Alaska. the use and income from the estate is not subject to levy during the marriage for the separate debts of either spouse. Maryland. however. D.
o THUS. for all practical purposes. o The wife became insulated in the estate from the separate debts of her husband. Thus. so that a voluntary conveyance of the husband’s interest should be set aside where it is fraudulent as to such creditors. All she possessed was her contingent right of survivorship. lease. IF the wife takes equal rights with the husband in the estate. the judgment creditors of either spouse may levy and execute upon their separate rights of survivorship. she must take equal disabilities. o The tenancy by the entirety is predicated upon the legal unity of husband and wife. can alienate her right of survivorship. tenants by the entirety are each deemed to be seized of the entirety from the time of the creation of the estate. The resultant restriction upon the freedom of the spouses to deal independently w/ their respective interests is both illogical and unnecessarily at odds w/ present policy trends. is alienable by him and subject to attachment by his separate creditors.during the joint lives of the spouses. by virtue of the act. o AT COMMON LAW. at least to the extent of his right of survivorship. o A joint tenant has a specific. and the estate is held by them in single ownership. o The tenancy by the entirety may only be divided through joint action by the tenants by the entirety. the wife had no right during coverture to the use and enjoyment and exercise of ownership in the marital estate. o Neither husband nor wife has a separate divisible interest in the property held by the entirety that can be conveyed or reached by execution. o BUT. The husband could no longer convey. mortgage or otherwise encumber the property w/out her consent. albeit undivided interest in the property. 51 . the effect of the MWPA was to place the wife on a level of equality w/ him. and the wife. and if he survives his cotenant he becomes the owner of a larger interest than he had prior to the death of the other tenant. DISSENT • • • • • The Married Women’s Act was to elevate the wife’s right of alienation of her interest to place it on a position of equality w/ the husband’s The husband could already alienate his right of survivorship at common law. Would hold that the separate interests of the husband in entireties property.
Professional Degrees i. These agreements are valid so long as they are signed voluntarily and under fair and reasonable disclosure 6.2d 838 (N. a. 52 . 2002).J. Unmarried Couples Some jurisdictions refuse to recognize claims for palimony saying these agreements involve sexual relationships outside of marriage and are therefore contrary to public policy In re Estate of Roccamonte. HOLDING The New Jersey Supreme Court held that a married man's estate must make a lump-sum payment to his longtime paramour and cohabitant. Minority-they are property representing investments in the economic partnership of the marriage and the product of the spouse’s joint efforts CASE Guy v.5. Majority-they are NOT property ii. Defining Marital Property a. Premarital Agreements i. Guy (Mississippi 1999) ISSUE o Is a professional degree marital property? o Majority approach is that a degree is not property but the majority approach is also that a contributing spouse should be compensated b. 808 A. Engaged couples can normally avoid the marital property system by contract ii. whom he had promised to support for the rest of her life.
In re Marriage Cases court points out that the state’s domestic partnership act provides same sex couples with virtually all the legal benefits and privileges California law affords to married couples 53 . 7. It is the undertaking of a way of life that involves providing companionship and forgoing other opportunities. a. Accordingly. The existing California legislative and initiative measures limiting marriage to opposite-sex couples violate the state constitutional rights of same-sex couples and may not be used to preclude same-sex couples from marrying. intestacy statutes. c.RULE • The formation of a marital-type relationship may legitimately and enforceably rest upon a promise by one person to support the other. Statutes that treat persons differently because of their sexual orientation should be subjected to strict scrutiny 2. Entry into such a relationship and then conducting oneself in accordance with its unique character is consideration that can be the basis for an enforceable contract. Not available for HOLDING 1. Same Sex Marriage Same sex couples can enter into agreements about how their property will be shared. the court remanded for consideration of the appropriate amount of support. Why Marriage? i. the court found. SS) teancy by the entirety. b. But its unclear whether court will extend marital property holdings to gay and lesbian couples CASE In re Marriage Cases CA 2008 What would have to change to keep names separate but elevating all rights for homosexuals? Fed benefits (tax. the court said. among other things. immigration.
it shall be unlawful— 55 . or advertisement w/ respect to sale or rent indicating preferences based on previous reasons Also includes handicaps (alcoholism.C.VI. Creating the Tenancy 1. Discriminate for previous reasons in sale or rent Make. or similar). religion. statement. pregnant. 804. Selecting the tenant o Fair Housing Act 42 U. or national origin. print. familial status (those w/ children.C. usually to protect vulnerable residential interests Default Rules-fill in the gaps that the parties did not address in the lease. [42 U.S. 3604] Discrimination in sale or rental of housing and other prohibited practices As made applicable by section 803 of this title and except as exempted by sections 803(b) and 807 of this title. color.S. 3601. The parties can ignore default rules in lease negotiations but they cannot evade an immutable rule A. sex. LEASING REAL PROPERTY Immutable Rules-supersede any contrary provisions in the lease. 444 Fair Housing Act Sec. etc) familial statuts definition p. or publish a notice. AIDS.made illegal to: Refuse to sell or rent or negotiate for sale or rent based on race.
religion. familial status. color. or discrimination based on race. sale. to induce or attempt to induce any person to sell or rent any dwelling by representations regarding the entry or prospective entry into the neighborhood of a person or persons of a particular race. a dwelling to any person because of race. or national origin. religion. statement. color. print. limitation. with respect to the sale or rental of a dwelling that indicates any preference. conditions. sex. or otherwise make unavailable or deny. or national origin. color. handicap. color. familial status. handicap. or in the provision of services or facilities in connection therewith. familial status. (d) To represent to any person because of race. or cause to be made. or national origin that any dwelling is not available for inspection. (c) To make. because of race. or privileges of sale or rental of a dwelling. or national origin. or advertisement.(a) To refuse to sell or rent after the making of a bona fide offer. or discrimination. religion. or rental when such dwelling is in fact so available. or publish. sex. or an intention to make any such preference. Discriminating against a potential lessor 56 . religion. printed. familial status. sex. or published any notice. or to refuse to negotiate for the sale or rental of. familial status. religion. or national origin. handicap. sex. (e) For profit. sex. (b) To discriminate against any person in the terms. color. limitation.
USDC. Brenneman Property Services. Applied for and was qualified to rent the property in question 3. Member of the protected class and D knew or suspected he was 2. P sues D under Fair Housing Act and the D. burden 57 . Neithamer V. District of Columbia 1999 FACTS • • • P is gay and HIV positive.2. credit references and informed that there was one period in his credit history when he failed to make payments-told them the reason was medical expenses for his lover who died of AIDS Owner of the property rejected the application P offered to do several things-pay rent early. The property was available afterwards o Once P establishes a prima facie case.C. Inc. D rejected his application 4. Human Rights Act September 1997 P contacted D in response to an ad about a townhouse. get a co-signor P was rejected and called to find out why and said he felt as though he was being discriminated against Response from D was “if you try to sue me. P viewed the property and filed an application with D P provided the agent bank statements. I have a pack of bloodsucking lawyers who will place countersuits against you for libel and drive you to the ground” P filed suit claiming discrimination under FHA and DCHRA and intimidation and coercion • • • • • PROCEDURE o D filed MSJ arguing there was no basis of fact to either claim REASONING o P must show a prima facie case of discrimination by showing: 1.
shifts to D to provide a legitimate. nondiscriminatory reason for rejection of the P application o If D satisfies the burden then P must show that the reasons and pretext or that material facts are disputed o The last two elements are undisputed here o Element 1 o P told the D his lover died of AIDS o Because of stereotyping. D likely suspected P had sexual relations with that person and was probably exposed to AIDS o D failed to make exceptions to their rule which they had done for others in the past o Element 2 • P credit was not great • But D knew that the one time credit issue had to do with medical bills • P had significant assets in his bank accounts • P had credit references • Offered to pay one years’ rent up front • P was qualified to rent the property o D reasons for rejection o P credit extremely poor such that any reasonable real estate agent would have rejected it o The decision to reject P application and offers were made by the owner for whom D was only acting as a agent CLASS NOTES o P here uses disparate treatment claim o Disparate treatment-don’t have to prove intent to discriminate o Disparate impact-use statistical evidence that some percentage of tenants are not in protected group Rebuttable presumption of 1) 58 .
Only sections a. d. the tenant’s possessory 59 .3. if he owns less than three houses and does not use a real estate broker or agent in the sale or rental Any single-family house owned or rented by an owner c. Terms of Years Tenancy i. Selecting the Estate Four Nonfreehold Estates a. Exemptions from Fair Housing Act a. statistical or 2) policy perpetuates segregationist policies if the owner occupies one of such living quarters as his residence Rooms or units in dwellings containing living quarters occupied by no more than four families living independently of each other b. Has a fixed duration which is agreed upon in advance ii. b and f Advertising provision applies no matter what 4. Once the term ends.
beginning 60 . There must be a specific and definite start and end date b. 2019” T’s estate ends at midnight on June 29. i. Commonly used in commercial leases Expires on own at the end of the fixed term without either party giving notice vi. weeks. 2009 until June 30. 2019 iv. months or any time vii. Grantor has reversion viii. v. Doesn’t have to be for “years” can be for days. Periodic Tenancy Automatically periods unless renewed the for successive or tenant landlord terminates the tenancy by giving advance notice ii. Example-L leases to Greenacre to T “From July 1. L leases “from month to month.right automatically expires and the landlord may retake possession of the premises iii.
July 1. Termination must coincide with natural end of the period Hypo: I have a Month to month lease thru May 1st. *At end of next full period. So. Doesn’t coincide w/ natural end of period (dec. i. Example…L leases “for as long as both of us wish” iii. c. 2009” To end the tenancy. with the landlord or the tenant could end the tenancy without advance notice to the other 61 . Generally advance notice equal to one period term must be given but if it’s a one year periodic tenancy then six months typically required iv. Often this estate arises by implication without an express agreement iv. At common law. Dec 15th tenant gives notice to terminate on Jan. Not after. 15th. 31st. either L or T must give one month’s notice to the other iii. 31 or Jan 31). would have to hold lease until Jan. Tenancy at Will Has no fixed ending point and continues “only so long as both the landlord and tenant desire” ii.
2) the tenant abandons possession or 3) the landlord sells the property vii. i. Tenancy automatically terminates 1) if either party dies. Arises from the occupant’s improper conduct. No fixed duration and no defined renewable periods d. Today. This could also be called a wrongful occupancy General Notes on Leases Lease-transfers rights to use and possess/transferring exclusive right of possession 62 . Tenancy at Sufferance Created when a person who rightfully took possession of land continues in possession after that right ends ii.v. most states require advance notice to end this tenancy usually equal to the period of time between rent payments vi. not from an agreement iii.
the lease or document must contain the key lease terms 63 . there is a contract between the parties Leases Interests License-personal privilege to use land for some reason-not a right-revocable grant of Distinguished from Non-Possessory permission to enter land for a specific purpose Easement-permits the holder to enter land and make particular use of the land in someone else’s possession Profit-right to enter the land but holder can also remove part of the land-right to remove timber. oil and gas. etc. In order to meet the standard. SOF i. 5. minerals.o With every leasehold there is an estate in the tenant o With every leasehold there is a reversion in the landlord o With every leasehold there is exclusive possession and control of the land in the tenant o Generally. Lease of real property for more than a year must be in writing in order to be enforced ii. Negotiating the Lease a.
property. the landlord deliver actual possession of the premises at the beginning of the term Lessee’s rights are based on breach of the lessor’s implied covenant that he has a right to lease the premises. • Only provides legal right to the property • The lessor has conveyed the sole and exclusive right of possession to the tenat so the landlord has no action against the holdover tenant • Incoming tenant has superior legal right to possession so the landlord cannot sue holder • REMEDIES Incoming tenant may sue the holdover tenant to recover possession and damages but she has no claim against the landlord Can sue for possession and damages Incoming tenant may not terminate the lease but can sue the holdover tenant Incoming tenant may NOT sue the landlord • American versus English Rule • • • • “English Rule” • Requires that when the lease is silent on the point. or of the implied undertaking that the lessor will deliver possession to the lessee If the lessee cannot take possession because of a holdover tenant.(party. duration. and rent) and be signed by the party against whom enforcement is sought **6. or some other obstructing third person. Delivering Possession about tenants “American Rule” Landlord merely covenants that possession will not be withheld by him or by one having paramount title. the landlord is in breach of his obligation Implied duty to put tenant in actual possession on first day of lease term unless the lease specifically disclaims such an obligation Obligation to deliver physical and legal possession 64 • • • • .
thus avoiding liability for future rent Evolved out of an implied covenant of quiet enjoyment-a promise by the landlord that he would not wrongfully interfere with the tenant’s possession i. or else by requiring security of a prior tenant in possession that he will not hold over The landlord may have a remedy in damages against a holdover tenant Can treat holdover tenant as a trespasser and evict May treat holdover tenant as a periodic tenant and allow for them to adhere or abide to terms Some statutes allow landlord to collect double rent Landlord can notify tenant that future occupancy will be under new terms usually including higher rent Landlord is in better position to appraise. Condition of the Premises – Redefining the landlord-tenant relationship over time. Take a look at p. and bear the risk of loss than a prospective tenant not yet in possession • REMEDIES • Tenant may terminate the lease and sue the landlord for damages • Alternatively. CL Caveat Emptor. b. a. shifts to revolutionary Implied Warranty of Habitability. The Challenge of Substandard Housing Constructive Eviction – (as a defense) Common law offered special protection for the tenant in defective leased premises Wrongful conduct by the landlord that substantially interfered with the tenant’s beneficial use and enjoyment of leased premises was deemed a constructive eviction i. pay no rent until the premises are vacant and collect damages from the landlord B. she may affirm the lease. Tenant had responsibility and Permissive Waste. 2. Promises in a lease were originally viewed 65 c. shifts to Implied Covenant of Quiet Enjoyment not to wrongfully interfere.• • o o o o • • Rationale Landlord is better able to protect himself in the lease document by expressly limiting or disclaiming his obligation to deliver possession. 473 note a 1. Under these circumstances. anticipate. the tenant could vacate the premises and end the lease. .
m. so landlord’s breach of this covenant did not excuse the tenant’s continued performance .BUT there was one exception-ACTUAL eviction Over time. k. Many courts and the Restatement allow a 66 i. g. but is entitled to reasonable time to do so The tenant bears the burden of proving that he did not abandon the premises within a reasonable time “Wrongful conduct” standard is met when a landlord i. as independent covenants. a tenant is required to vacate the premises immediately. Fails to adequately maintain and control the common area iii. Fails to perform an obligation in the lease ii. Fails to perform promised repairs v. Breaches a statutory duty owed to the tenant iv. . constructive eviction evolved out of this doctrine Both action and lack of action can constitute constructive eviction The landlord is not responsible for actions of third parties but this rule applies only when the landlord does not permit the third party to act A constructive eviction results from a landlord’s failure to keep the premises in a tenantable condition Untentability exists when the interference with occupancy is of such a nature that the property cannot be used for the purpose for which it was rented A constructive eviction cannot exist where the tenant does not surrender the property Following a constructive eviction. l. j.d. f. e. h. Allows nuisance like behavior Third Parties i.
Steps 1. Does not require the landlord to maintain the premises in perfect condition at all times d. Tenant must notify landlord of the problem Tenant must give the landlord a reasonable period to fix the problem 3. capacity. Failure to supply hot water or heat breaches the warranty but a breach is not shown in a malfunction of blinds. Designed to protect ordinary consumers who do not have the knowledge. Landlord must have reasonable time to repair the defects before a breach can be established g.tenant to assert constructive eviction due to the acts of third parties if the landlord has a legal right to control the third partyconduct n. minor water leaks or need for paint i. Tenant must vacate the premises Some states allow a tenant to remain in possession and recover damages on a constructive eviction theory 3. or opportunity to ensure that goods which they are buying are in safe condition b. Requires that landlord maintain “bare living requirements” and that premises are fit for human occupation h. 2. Does not preclude minor housing code violations or other defects FACT QUESTION = HABITABLE?? e. A code violation is not necessary to establish a breach so long as the claimed defect has an impact on the health or safety of the tenant 67 . Landlord is not responsible for defects caused by the tenant f. Implied Warranty of Habitability –THE REVOLUTION!!! a. Landlord warrants that the leased premises are habitable at the outset of the least term and will remain so during the tenancy c.
Remedies for Breach – IMP – KNOW THESE! P. General damages are recoverable in the form of rent abatement or reimbursement to the tenant-these are more difficult to calculate Courts can use fair rental value of the premises as warranted less their fair rental value in the unrepaired condition • Under this approach rent may be considered as evidence of the value of the premises warranted Another measure is the contract rent less fair rental value of the premises in unrepaired condition Some courts use percentage dimunition where the tenant’s recovery reflects the percentage by which the use and enjoyment of the property has been reduced by uninhabitable premises l. Tenant not required to vacate the 68 . REPAIR AND DEDUCT . WITHOLD RENT . 483 1. property damages. Most courts hold that any waiver of warranty is invalid as against public policy m. Special damages may be recovered when the tenant suffers personal injury. SUE FOR DAMAGES A. Tenant must notify the landlord about the defects and allow a reasonable time for landlord to make repairs ii. or other similar injury due to a foreseeable result of landlord’s breach ii.j.Tenant may continue to pay rent to the landlord and bring an affirmative action to establish breach and receive a reimbursement for excess rent paid 3. Procedure i. relocation expenses.Tenant may withhold rent may motivate the landlord to repair damages 2.
Sue for damages o.C. warranty of habitability does not apply to commercial leases Transferring the Tenant’s Interest – Assigning and • Basically. If transfer for entire duration then it is an assignment iii. If transfer less than entire balance. Withhold rent ii. then it is a sublease ii. Majority Approach-Objective Test Did the tenant transfer his right of possession for all of the remaining lease term? If so. Remedies i. Reserves a reversionary interest 1. i. If not. an assignment occurs when a lessee transfers his entire interest under the lease (including right to possession for the duration of the lease). Leaving nothing • If the lessee transfers anything less than their entire interest (for example only one year out of a two year lease). it’s a 69 . then it is a sublease. subleasing premises n. it is an assignment. Repair and deduct iii. In most states. Assignment or Sublease? a.
In effect. a. SUBLEASES -Two Separate Relationships a. U has taken T’s place. repairs. i. But PRIVITY OF ESTATE only exists between L and U. provide heat. b.sublease and the tenant retains a reversion b. PRIVITY OF CONTRACT still exists between T and L(landlord) and PRIVITY OF CONTRACT arises between T and U. A sublease essentially involves two separate 70 . Look to the intent of the parties 2. use for specific purposes) c. Minority Approach-Subjective Test It would be possible to have a sublease for the entire remaining term of the original lease ii. In order for duties to “run with the land” privity of estate must exist 3. L and U are still obligated to perform all the covenants in the original lease that “run with the land” (duties to pay rent. Assignments-A Triangular Relationship The tenant (assignor) transfers (assigns) her entire interest in the leases premises to a third party (assignee) If T assigns her rights in a short store space to U.
Reasonableness clause – owner may refuse consent only on commercially reasonable basis. a.landlord-tenant relationships. Third party has no duty to pay rent to landlord but if T fails to pay the rent then landlord can evict the third party 4. Three basic possibilities: i. Silent Consent Clause i. sublessor) transfers The tenant (the part of her (subleases) interest in the leased premises to a third party (the sublessee) b. the lessor may arbitratily refuse to approve 71 . Transfer Issues/Landlord Consent If L and T enter into lease that requires L consent to any transfer by T what standard governs L’s decision. Sole discretion clause – owner may refuse consent for any reason ii. Ex: bad credit record iii. The original landlordtenant privity of contract and privity of estate remain in tact c. No standard in lease – requires owner’s consent but no standard to guide decision (silent consent clause) b. Majority Rule • Where a lease contains an consent clause. Tenant and sublessee also have privity of contract and privity of estate d.
ERNEST PESTANA – applies only to commercial leases Perlitch leased a hangar at the San Jose Airport. Eldridge 1 year lease. not sublease. Garrety lives there 3 months in summer while he is in ATL. So it would be assignment. o According to the original agreement.a proposed assignee no matter how suitable the assignee appears to be and no matter how unreasonable the lessor’s objection • Came under attack just prior to 1985 ii Minority Rule o Consent may be withheld on where the lessor has a commercially reaonsable objection to the assignment even if the clause is silent about reasonableness o Landlord must have commercially reasonable basis for withholding consent Original tenant remains liable under both assignment and sublease b/c of privity of contract. contingent right to reentry not regarded as estate. Bixler sold his business to Kendall. Who can Greene get rent from? Edlridge-privity of estate (possession. **Know difference in privity of estate and privity of contract. Gives remaining to Conditt but retains right to reentry if Conditt defaults. the written consent of the lessor (Pestana) was 72 • . and ? Rogers-privity of contract Can't sue Conditt b/c he has neither HYPO 2: Greene landlord. After 11 years. As part of the purchase agreement. Bixler was to assign the sublease to Kendall. If last 3 months of lease-could argue assignment HYPO 3: Greene landlord. Modern view would be right to reentry is substantial right (estate) to make it a sublease. • • KENDALL V. Pestana balked. HYPO 1: 3 yr lease to Rogers who assigns remaining interest to Conditt who assigns remaining interest to Eldridge. Sublease or assignment? Historically. reversion. Who can Green get rent from? Eldridge only. Perlitch assigned his interest to Pestana. Rogers 5 yr lease. Pestana subleased the hangar to Bixler for 25 years (Bixler was to pay Pestana) for his airplane repair business. However. Sublease so reversionary interest in Eldridge. Owner can release original tenant (called novation) from liability.
the Court changed the common law and found that for reasons of Property law and Contract law.• • • required for Bixler to assign the property to Kendall. Kendall appealed. the Restatement of Property 15. o The California Supreme Court noted that the lease had a clause requiring consent." o Pestana unsuccessfully made four arguments that had been used to deny consent: The lessor made a personal choice of lessee. The lessee could have bargained for a more liberal sublease policy. o Alienation is the right to sell your property interest without constraint. "a restraint on alienation without the consent of the landlord of a tenants interest in leased property is valid." In Contract law. o Kendall was in better financial shape than Bixler. In Property law. the clause was void if Pestana acted unreasonably. arguing that Pestana's refusal was unreasonable and amounted to an unlawful restraint on the freedom of alienation. Kendall refused and sued. They should not be forced to accept a new tenant. a duty is imposed to exercise that discretion in good faith and in accordance with fair dealing. Pestana demanded increased rent as a condition of consent. They also recognized that a majority of jurisdictions would find the clause bindings. but the landlord's consent to an alienation by the tenant cannot be withheld unreasonably.2(2) says that. "where a contract confers on one party a discretionary power affecting the rights of the other. The California Supreme Court reversed and remanded for trial. The Trial Court found for Pestana. The issue had already been decided in numerous courts and should not be 73 . o However. but chose not to do so.
clinic.) (b)Tenant has the burden of proof on unreasonableness • • The ruling in this case was eventually codified into Statutory law by the California legislature. factory. since many lessors relied on the original rule. Court gives two reasons for imposing commercially reasonable standard the lease as a conveyance-promotes 1. Treat the lease a contract-good faith and fair dealing standard Commercially Reasonable Standard What is NOT commercially reasonable? 74 . o The Court found that whether Pestana was acting reasonably was a question for a jury to decide. If the value of a property increases. the lessor has a right to raise rents to compensate. Denying consent solely on the basis of personal taste is not commercially reasonable. Treat alienability 2.changed. (a) Factors to consider in applying standards of good faith and commercial reasonableness • • • • • Financial responsibility of the proposed assignee Suitability of the use for the particular property Legality of the proposed use Need for alteration of the premises Nature of the occupancy (office. Denying consent because you want to squeeze a higher rent out of the new tenant is not commercially reasonable. etc.
retaining that rent and then suing T for the balance At common law. the landlord had no duty to find 75 called a surrender b. Sue for all rent-L could keep the premises vacant until the lease term expired. i. Ending the Tenancy – if the parties agree to terminate early. If the tenant vacates with justification-due to constructive eviction. Preserving the image of some property in favor of the main tenant 2. Personal taste 2. etc-no abandonment occurs If T abandons the leased premises before the lease terms ends. . and then sue T for all the accrued rent ii. Where you try to charge higher rent than originally contracted for What is commercially reasonable? 1. c. Abandonment RST 2ND: Abandonment of a premises by the tenant occurs when he vacates the leased property without justification and without any present intention of returning and he defaults in the payment of the rent. Inconvenience 3. a.1. Mitigate damages and then sue for rent-L could mitigate his damages by reletting the premises to another tenant. Desire for good tenant mix/diversity 3. traditionally. 1. Terminate the lease-L could treat T’s abandonment as an implied offer of surrender and terminate the lease iii. Where lessor believes assignee’s business would not succeed D. landlord L could choose among three options: i.
If asking for higher rent just for negotiation purposes then that is reasonable Security Deposits?? Eviction 76 2. Landlord need not accept less than fair market value iv. Advertisements in newspapers 3. Showing to all prospective tenants ii. signs in windows iii. Majority Rule when tenant abandons Terminate lease or sue for damages and mitigate damages Burden on landlord to prove took reasonable efforts to mitigate What are reasonable efforts to mitigate damages i. e. ii. even if the apartment was wrongfully vacated. . offered or showed the property to any prospective tenants 2. 3. Whether the landlord. o The burden is on the landlord to prove he used reasonable diligence in attempting to re-let the premises-here the court should consider the following factors: 1. the landlord must either terminate the lease or mitigate damages *Restatement of Property still follows traditional approach of NO mitigation d. Tenant may rebut such evidence by showing that he proferred suitable tenants who were rejected *Most states follow the Sommer rule-after abandonment. i. Landlord does not have to substantially alter obligations established under the preexisting lease v. Advertise through newspapers.a new tenant but now there is a duty to mitigate damages o The New Jersey Supreme Court found that a landlord does have an obligation to make reasonable efforts to mitigate damages. personally. or through an agent.
Bloomquist FACTS -Tenants at a mobile home park began to organize and meet informally to discuss concerns over the physical condition of their mobile home park Relationship declined. Retaliation Issues . . Another meeting resulted in some type of physical altercation After the meeting the management served ultimatums on all tenants requiring them to sign park rules or be evicted Management also sought out tenants not in the tenants’ association in an attempt to start a rival association favoring management Management served a 37 day termination notice on a group of married couples at the meeting Former secretary for manager said “we’ll get these now and the rest later so it wouldn’t look like we’re doing it because they were members of the association REASONING Iowa adopted Mobile Home Parks Residential Landlord and Tenant Act Evidence of a complaint within six months prior to the alleged act of retaliation creates a presumption that the landlord’s conduct was in retaliation Presumption means the trier of fact must find the existence of the fact presumed unless and until evidence is introduced which could support a finding of its nonexistence This presumption imposes a burden on the landlord to produce evidence of legitimate nonretaliatory reasons to overcome the presumption Tenant is then afforded a full and fair opportunity to demonstrate pretext Procedure for Eviction i.Hillview Associates v. Use self-help: L could retake possession through self-help by physically entering the premises and causing T to leave-so long as L only used a reasonable amount of force OR 77 c.a. L could evict T in one of two ways: 1. TRADITIONALLY.
But modern laws have attempted to make a summary proceeding to eject a deadbeat tenant relatively quick and straightforward. The Court defined non-peaceable as anything that could possibly lead to a confrontation. AKA “I do what I want with my property” versus “gov’t. CIC." o In the past. the landlord should not take the law into their own hands and lock out the tenant. They should go to court and get a court order to do so. BUT THIS CONFLICTS WITH CERTAIN RESTRICTIONS . They construed the law so narrowly that pretty much the only way a repossession could be peaceable was if the tenant had completely abandoned the property. Sue the tenant: L could sue T. and have the judgment enforced by a law enforcement officer NOWADAYS: A landlord may use self-help to retake possession of a leased property as long as: The landlord is legally entitled to take possession.2. the Court was saying that if there is a dispute with a lease. secure a judgment ordering T’s eviction. other people’s restrictions” A. AND The landlord does it peaceably. PRIVATE LAND USE PLANNING – CLASS THEME: WE WANT PRODUCTIVE USE OF LAND. o Basically. • • • • • Easements – know the 4 types Express Implied Easement by Prior Existing Use Easement by Necessity Prescriptive Easement Easement by Estoppel (Irrevocable License) 78 . landlords had to resort to doing it themselves (aka self-help) because the judicial process for kicking someone out (aka ejectment) was slow and cumbersome. This case basically says never is there time where there is a self-help without breach of the peace Landlord can only use self help where the tenant has clearly abandoned or surrendered VII. o "The only lawful means to dispossess a tenant who has not abandoned nor voluntarily surrendered but who claims possession adversely to a landlord's claim of breach of a written lease is by resort to the judicial process.
i. Express Easement by Grant i.Terminology Dominant tenement or dominant land-the land benefited by the easement Servient tenement or serviennt land-the land burdened by the easement Dominant owner-easement holder Servient owner-owner of servient land Appurtenant easement-benefits the holder in her use of a specific parcel of land Easement in gross-is not connected to the holder’s use of any particular land-it is personal to the holder Affirmative easement-allows the holder to perform an act on the servient land Negative easement-allows the holder to prevent the servient owner from performing an action on the servient land Merger – where 1 owner owns both the dominant & the servient estate – no longer an easement 1. Creating Easements a. Express Easement by Reservation Arises when the dominant owner grants the servient land to the servient owner but retains or reserves an easement over that property 79 . Arises when the servient owner grants an easement to the dominant owner b.
Describe the exact location of the easement on the servient land iv. Describe the servient land and the dominant land (if any) iii. ARGUE BOTH i. State the purposes for which the easement may be used and be signed by the parties Traditionally. Transfer i. License – if vague on EXAM. d. Identity of the parties ii. / but the modern decisions allow this easement to be reserved in favor of a third party Easement v. e. License-an informal permission that allows the holder to use the land of another for a particular purpose but it is not an interest in land f. Express Easements may be created only in a writing that satisfies the SOF and will include: i.If the owner retains a right to exclude and it is not for a definite period of time then more than likely this will be a license ← ← Greene calls the easement in this case an appurtenant easement because it continued to burden the land and was not purchased by a bona fide purchaser ← If the status of a bona fide purchaser is met then it would have been an easement in gross ← To have a bona fide purchaser the following must exist: 80 . express easements by reservation could only be reserved in favor of the dominant owner.If the owner has a limited right to exclude and the right to use is continuous for a deifinite period of time then the interest will likely be an easement not a license ← . In some states an easement in gross is only transferable if it serves a commercial purpose but the modern trend is to allow the transfer of an easement in gross unless the parties had a contrary intent NOTES ← .c. An appurtenant easement is seen as attached to the land so the transfer of the dominant land automatically transfers the benefit of the easement to the grantee ii.
AND The purchaser had no notice of the previous conveyance Appurtenant versus In Gross Easements According to Greene Appurtenant Intended to run with the land such that the benefit of the easement will pass to any future owner of the dominant estate and the burden will be imposed on any future owner of the servient estate Senger says an easement is intended to be appurtenant and will run with the land only if: Intended to run with the land If the intention is in writing If owner of servient estate purchases with notice of the easement Notice is not the distinguishing factor deciding whether an easement is in gross or appurtenant but notice is relevant when we talk about the expectation that it will be run with the land Three types of notice Actual-the owner in fact has knowledge of the easement Constructive-deeds recorded and in those deed the easement is mentioned and the deed is recorded in proper place and the deed is in the chain of title then the purchaser is said to have constructive notice Inquiry-visible signs of use by non-owners prompting a reasonable owner to do further investigation In Gross Not intended to be attached to any particular ownership of a piece of land-not intended to be attached to any possessory right of some piece of land 81 .The purchaser paid value and the taking was in good faith.
apparent. An existing.If at the time of creation. Severance of title to land held in common ownership and o 2. Strict necessity for the easement at the time of severance • Traditionally. Easement by Necessity Required Elements o 1. Look at the following factors Was the easement meant to provide irrevocable access to a certain land? Was it intended to bind future owners of the servient estate? If the answer is yes to either of these then you may view it as an appurtenant easement Implied Easement by Prior Existing Use Three elements usually required 1. the parties intended it to be a permanent grant then you could say it’s an appurtenant. the parcel may be 82 g. but need not be essential • Restatement defines reasonable necessity as meaning that alternative access or utilities cannot be obtained without a substantial expenditure of money or labor Implied easement by prior existing use can arise by grant or reservation & prior use must be there when severance occurs h. strict necessity is found only when the owner has no legal right of access to her land-Thus. Reasonable necessity for that use • Reasonableness test-the easement must be beneficial or convenient for the use of the dominant tenement. and continuous use of one parcel for the benefit of another at the time of the severance 3. Severance of title to land held in common ownership 2. .
but not absolutely necessary (Restatement only requires reasonable necessity) **If bridge falls down AFTER Easement by Necessity is created. Most states presume adversity and hold that continuous use of an easement over a long period of time without a landowner’s interference is presumptive evidence of its existence 83 . the owner of the servient land is entitled to select the route for an easement by necessity. Reas. Strict Nec. Prescriptive Easements i. as long as it is reasonable • Greene distinguishes necessity versus prior use: 1. Implied easement of necessity – ONLY last as long as needed. Elements . then eas. 2. *Not true with easement by prior use – unlimited duration.surrounded by privately-owned land. Nec. Vs. State of Vermont Case reflects an INSTRUMENTALIST view – navigable water exception. Continuous for the statutory period • 2. Open and notorious ii.CHO • 1. Holder is OUT OF LUCK o An easement by necessity will not arise if this would contradict the actual intent of the parties o An easement by necessity will only last so long as the necessity continues o Generally. and the owner must not have a right to cross that land to reach a public road Minority of courts require only reasonable necessity-the easement must be beneficial of convenient for the use of the dominant parcel. Hostile (Adverse without permission) • 3. contemporary realities i.
The licensor knows or reasonably should expect such reliance will occur • 2. increases the burdens on the easement holder. License Easement by Estoppel/Irrevocable Elements 1. The licensee relies in good faith on the license. does the proposed use result in serious material burden on the servient land? If yes. Traditionally. the public could not acquire a prescriptive easement. but many modern courts recognize public prescriptive easements generally.iii. Interpreting Easements Traditional rule is that the location of an easement can be changed only if both the servient and dominant owners agree but the Restatement provides that the servient owner may relocate an easement as long as this does not significantly lessen the utility of the easement. PERMISSION will defeat easement by prescription but will not defeat Easement by Estoppel j. A landowner allows another to use his land. thus creating a license • 2. like splitting it up completely to like 4 users. or frustrate the purpose of the easement *Public Policy reasons for the majority – strict interpretation = potential purchasers need to be able to rely on the terms (can’t have them shifting) Second. usually by making physical improvements or by incurring significant costs and • 3. easement goes beyond original scope 84 .
The public policies behind these rules of easements are to promote certainty in land transactions, and for owners to be assured that their conveyances will not be construed to undermine privateproperty rights. 1. 2. 3. Greene commentary: For landowners giving easements, make sure the easements are limited in their grants as to what may and may not be put in the easement premises. Make sure you are compensated. And draw these grant provisions narrowly to make sure you are compensated yet again, and again, and again, every time the easement is used for additional or different purposes. Of course, if you’re acquiring the easement, pay once, and get everything, including the right to assign parts of your easement rights. Then you can be the one compensated over and over. RULES 1. Apply contract construction and the contracting parties’ intentions, as expressed in the grant, determine the scope of the conveyed interest 2. When the grant’s terms are not specifically defined, they should be given their plain, ordinary, and generally accepted meaning 3. If a particular purpose was not provided for in the grant, a use pursuing that purpose is not allowed 4. The manner, frequency, and intensity of an easement’s use may change over time to accommodate technological development but such changes must fall within the purposes for which the easement was created-as determined by the grant’s terms ZUNI TRIBE RULE
Terminating Easements A. i. B. i. Abandonment Most jurisdictions agree that mere nonuse of an easement is not abandonment Prescription An easement may be terminated by prescription, using essentially the same standard for acquiring a prescriptive easement
If the servient owner blocks use of the easement in an open and notorious adverse and hostile and continuous manner for the prescriptive period, the easement ends
Negative Easements An easement that entitled the dominant owner to prevent the owner from performing an act on the servient land
VIII. PROMISORY SERVITUDES: REAL COVENANTS AT LAW AND EQUITABLE SERVITUDES
REAL COVENANT Intent to Bind Successors Touch and Concern Privity of Estate Horizontal Vertical Remedies are: money damages & injunctive relief Remedy: Injunctive Relief EQUITABLE SERVITUDE Intent to Bind Successors Touch and Concern Notice inquiry) (actual, constructive,
REAL COVENANT REQUIREMENTS For the Burden to Statute of Frauds Intent to Bind Successors Touch and Concern Notice Horizontal Privity Vertical Privity Run Yes Yes Yes Yes Yes Yes For the Benefit to Run Yes Yes Yes No No Yes
EQUITABLE SERVITUDE REQUIREMENTS For the Burden to Statute of Frauds Intent to Bind Successors Touch and Concern Notice Horizontal Privity Vertical Privity Run Yes, or common plan Yes Yes Yes No No For the Benefit to Run Yes, or common plan Yes Yes No No No
Distinctions between real covenants and equitable servitudes Available remedy for breach For real covenant-monetary damages or injunction For equitable servitude-injunction or specific performance Doctrines that terminate the two obligations Abandonment terminates real covenants and equitable servitudes 87
Courts feared recognition of new negative easements would unreasonably burden transferability and development of land c. Practically-English courts concerned by a lack of recording system making it difficult for buyers of land to discover negative easements. Concerned by negative easements for procedural and conceptual reasons b. 1. courts concerned about a servient landowner foregoing some use of her land which involves more invisible and intangible rights Second phase. and relative hardship only terminate equitable servitudes Requirements for Creation Covenant requires: Intent of parties Privity of estate Touch and concern American courts require notice Equitable servitude requires: All except privity A. Landowners turned to contract law but in the early part of the 19th century. Development of Covenants Running With the Land a. the law generally considered contract rights and non-assignable But there was an exception where parties stood in privity of estate (traditionally restricted to lessor and tenant) Traditional Rule Three requirements for such a covenant to bind successors in ownership of the burdened land. The covenanter demonstrate the covenanting parties’ intent to bind successors 88 .Acquiescence. Conceptually. English Resistance a. b. unclean hands. History First phase.
requiring only that: 1) The original covenanting parties intended to bind successor owners to the restriction 2) The restriction “touched and concerned” the land 3) The successor took the land with notice of the restriction c. i. Covenants Running With the Land in American Law a. There be privity of estate between the covenanting parties 3. American courts generally have disgarded the privity requirement. To enforce a covenant against a successor at law (action for monetary damages). Two Components Horizontal-focuses on relationship between the original parties to the covenant Exists if the original parties to the covenant have either a mutual interest (simultaneous interest) or successive interests (succession of interest) in the affected land at the time they enter into the covenant Mutual interest exists when each party has some interest in a given parcel of land Servient Landowner and Easement holder 89 . Analyzing privity of estate American Courts have extended privity of estate beyond the landlord-tenant relationship b. The covenant “touch and concern” the land 3. American courts generally require that: 1) The original covenanting parties intended to bind successor owners to the restriction 2) The restriction “touched and concerned” the land 3) The original covenanting parties stood in “privity of estste” 4) The successor took the land with NOTICE of the restriction To enforce a covenant against a successor in equity (specific performance or an injunction).2.
Common law relaxes requirements for the running of the benefit of a covenant Neither horizontal nor vertical privity was required if a successor owner of the benfitted parcel sought to enforce the covenant against the original covenantor 90 .Landlord/Tenant Concurrent Owners Life Estate Holder/Remainder Holder Succession in interest exists when the parties make the covenant as a part of the grant of an estate from one to the other thereby standing in grantor-grantee relationship At the time the original parties enter into a covenant was there a grantor/grantee relationship?? ASK Is the relationship a grantor/grantee? Does it affect the land for which the covenant was created? Does the relationship exist at the time the covenant was created? If Yes. requires that the successor owner succeed to the entire estate of the predecessor ***Look at the duration of the estate and if the successor received the same estate then vertical privity exists iii. What type of privity is required for a burden or a benefit of a covenant to run with the land? (First Restatement Approach) First Restatement requires both horizontal and vertical privity before a covenantee or her successor could enforce the burden of a covenant against a successor to the covenantor iv. a transfer of the benefited parcel or both at the some point after the original covenanter and covenantee enter into the covenant In most cases. then succession in interest is established Vertical-focuses upon succession to the interests of the original parties to the covenant-either a transfer of the burdened parcel.
Analyzing “touch and concern” If the covenant merely be collateral to the land and does not touch or concern the thing demised in any sort. it will not be enforceable as between successors in ownership to the original parties to the covenant This is not extremely difficult to apply to negative covenants restricting land use ii. Difference in Real Covenant and Equitable Servitude i. i. b. or use of the property iii. Class Notes Ask two questions Does the covenant in purpose and effect substantially alter the legal rights of the landowner in a way that is connected with the land? Does the covenant impose a burden on one interest in land which also increases the value of the different interest in the same or related land? If the answer is “yes” to either question then presumably the covenant will touch and concern the land e. Restatement Approach Combines the real covenant and equitable servitude into one doctrine-the covenant that runs at law A coveant running with the law is a servitude arising when: i. Equitable servitude is enforced by an injunction 3. The traditional remedy for breach of real covenant is damages ii. a. “Touch and concern”-the covenant must relate to the enjoyment. The owner of the property to be burdened intends to create a servitude 91 d. occupation. .
Validity of Specific Restrictions i. thereby rendering it unenforcement i. Unreasonably burdens a fundamental constitutional right iii. Imposes an unreasonable restraint on trade or competition v. . Is unconscionable c. spiteful. unconstitutional. Restatement approach-A servitude is valid unless it is “illegal or unconstitutional or violates public policy” It violates public policy if it: i. Planned residential development where all properties are subject to comprehensive private land use restrictions and which is regulated by a homeowner’s association b. or violate of certain public policies This standard abandons the requirements of touch and concern and horizontal privity 4. Common Interest Community a. Is arbitrary. The test to determine abandonment Requires the party opposing enforcement to prove that existing “violations are so great as to lead the mind of the average person to reasonably conclude that the restriction had been abandoned” This test is met when the average person upon inspection of a subdivision and knowing of a certain restriction will readily 92 ii. or capricious ii. Imposes an unreasonable restraint on alienation iv. A covenant which barred non-Caucasians from living on a particular street violated the Equal Protection Clause of 14th amendment d. Property owners can lose the right to enforce a specific covenant is the specific covenant has been abandoned. unconscionable. The servitude is not arbitrary.He enters into a contract or conveyance to this effect that satisfies the SOF iii.
the court will refrain from enforcing such restrictions Rule: "Essential elements of a real covenant: (1) must appear grantor & grantee intended that the covenant should run with the land. Discharge of a Covenant i. any prior acts of enforcement of the restriction. Nature and Severity of the then existing violations. (2) covenant touches or concerns the land which it runs. a restrictive covenant may be discharged if there has been acquiescence in its breach by others. nature and severity first and then go to other factors e. and whether it is still possible to realize a substantial degree the benefits intended through the covevant Courts should consider number. and that a substantial benefit no longer extends to the other party by enforcement of the restriction **As a general rule. Burden is on party seeking the discharge to show that the original purpose of the restriction has been materially altered or destroyed due to changed conditions. (3) privity of estate between the promisee or party claiming the right to enforce it." Defenses to Restrictive Covenants 93 . and the the promisor or party who rests under the burden of the covenant. or an abandonment of the restriction **Changes in character of a neighborhood may result in the discharge of a restrictive covenant ****Where the changed or altered conditions in a neighborhood render the strict adherence to terms of a restrictive covenant useless to the dominant lots.observe sufficient violations so that he or she will logically infer that the property owners neither adhere to no enforce the restriction In applying the test courts consider the following: Number.
Abandonment Requires the party opposing enforcement to prove that existing “violations are so great as to lead the mind of the average person to reasonably conclude that the restriction had been abandoned” The test is met when the average person upon inspection of a subdivision and knowing of a certain restriction will readily observe sufficient violations so that he or she will logically infer that the property owners neither adhere to no enforce the restriction In applying the test courts consider the following: Number. the court will refrain from enforcing such restrictions 3. or an abandonment of the restriction Changes in character of a neighborhood may result in the discharge of a restrictive covenant Where the changed or altered conditions in a neighborhood render the strict adherence to terms of a restrictive covenant useless to the dominant lots. a restrictive covenant may be discharged if there has been acquiescence in its breach by others. and that a substantial benefit no longer extends to the other party by enforcement of the restriction As a general rule. Changed Conditions Burden is on party seeking the discharge to show that the original purpose of the restriction has been materially altered or destroyed due to changed conditions. nature and severity first and then go to other factors 2.1. Nature and Severity of the then existing violations. and whether it is still possible to realize a substantial degree the benefits intended through the covevant Courts should consider number. Unreasonableness 94 . any prior acts of enforcement of the restriction.
People don't have unlimited power to use land as you please: ex/ Gov't can have zoning laws. Knows to substantial certainty harm will result or b. Purposefully acts 3. Laches Servient owner waits too long to file a claim NUISANCE Nuisance a. **mere licensee cannot maintain nuisance action ii. 3 common elements for private nuisance: 1. Nuisances can be: 95 . decency ex/ erica badoo naked recently where Kennedy was shot in Dallas. Private Nuisance-non-trespassory invasion in nature of another's use and enjoyment of land. d.4. c. Substantial 3. Public Nuisance-improper interference w/ right common to public: good air. Intentional 2. W/out remedy under zoning laws: use Nuisance b. Substantial 4. Relative Hardship The covenant will not be enforced if the harm/hardship caused by enforcement to the burdened estate owner will be greater than the benefit to the owner of the benfited estate 5. particles. Ex/ gas. smoke. 2 ways to approach unreasonable: 1. **Must be a person w/ ordinary sensibilities-Hypersensitive P does not constitute nuisance. Ex/ ugliness of house is not enough e. Intentional a. Acquiesence Servient owner violates covenant and beneficiaries of the covenant fail to object and complain 7. noise. iii. Gravity of Harm-D's conduct is unreasonable if causes substantial harm regardless of utility 2. Restatement-balance harm and utility a. D's conduct must cause interference w/ P's use of land 2. Must have the following 3 kinds of interference: 1. Unclean Hands Enforcement may be denied if the complaining party breached the covenant himself 6. Unreasonable a.
Private Nuisance • • Use of your property in a way that unreasonably interferes with another’s use Difficult question is what is unreasonable (the gravity of the harm outweighs the utility of the actor’s conduct) e. 96 . o Note that Prah built his home only 10 feet away from the edge of his property. If structure and effects will continue to reasonable certainty into indefinite future. Ex/ Dam backs up water on P's land. Maretti began building a home next door to Prah. knowing that a future next door neighbor might chose to build a house that could block Prah's sun. Prah sued Maretti in order to force him to build his home further away from Prah's property line. Maretti's home would have blocked the sun so Prah's solar panels wouldn't work. Suitability of conduct to character of locality 3. • Prah v. May recover past. Rules: NE adopted Restatement 2nd that private nuisance is intentional and unreasonable invasion of another's use and enjoyment of land and unreasonable is if gravity of harm outweighs the utility of the actor. Later. Permanent-passive and created by durable automated thing. Impracticability of preventing or avoiding invasion d. Also use following (5) factors for gravity of harm test: 1)Extent of harm involved 2) Character of harm involved 3)Social value law attaches to type of use or enjoyment invaded 4) Suitability of particular use or enjoyment invaded to the character of locality and 5) Burden on person harmed of avoiding harm Use following (3) factors for determining utility: 1.Allow past and present damages and injunction. present and future damages ii. Nuisance depends on context (factual situation). f. Social value law attaches to primary purpose of conduct 2. Major class theme.i. Maretti • Prah had solar panels on his home. Temporary (Ex/ Boomer case b/c owners could stop operation at any time)active operation is essential to its continuous effect .
• The impracticability of preventing or avoiding the invasion. o In the past. In specific. o The Appellate Court weighed the gravity of the harm against the utility costs. there was no nuisance. Does the encouragement of solar power outweigh the harm to Maretti in not being able to see the lake? 97 . • The suitability of the particular use or enjoyment invaded to the character of the locality. These are questions for a jury to decide. • The character of the harm involved. o The Court found that there were questions of fact as to the gravity of harm vs. • The suitability of the conduct to the character of the locality. However. Utility of Conduct • The social value that the law attaches to the primary purpose of the conduct. Maretti wanted a view of the lake. • The burden on the person harmed of avoiding the harm. Maretti agreed to move his home some. and if he moved it any further he couldn't see the lake. The Trial Court found for Maretti in summary judgment. The Appellate Court reversed and ordered a trial.• • o Prah argued that Maretti's sun-blocking house was a nuisance. o Maretti argued that he could do whatever he liked with his property. the utility costs. courts have refused to consider blocking sunlight a nuisance. • The social value of that the law attaches to the type of use or enjoyment invaded. o The Trial Court found that since Maretti's house conformed with zoning laws. Prah appealed. they considered: Gravity of Harm: • The extent of the harm involved. this was mainly due to the sunlight was valued only for aesthetic enjoyment. but not enough to satisfy Prah.
safety. the landowner can appeal. or general welfare. The zoning process: searching for flexibility and fairness a) Amendments and conditional uses 98 . Most state constitutions grant to the states “police power” to regulate activities that affect the public health. The only power that counties and cities have are the powers delegated to them by the state constitution or by legislation. KRAEMER ISSUE 1) JUDICIAL ENFORCEMENT IS A STATE ACTION? 2) IF SO. 2) The Standard Act grants local governments the power to enforce the zoning ordinance. but if they purport to offer less protection than the federal constitution then the federal constitution will control. morals. The act offers a system of appeals to an administrative body (board of appeals. 3) The board of appeals has the power to issue a variance. State constitutions may offer more protection to individuals. The validity of zoning 2. DID IT DEPRIVE EQUAL PROTECTION UNDER THE LAWS? A. B) The US Constitution and State Constitutions limit the government’s power to regulate. Therefore whichever constitution gives the individual more protection will be the one that controls. In other states. there is liability only to those to whom it causes significant harm. SHELLEY V. They divide the city or county into districts or zones and adopts procedures for enacting. enforcing. and amending the zoning ordinances. Also. I Power to Enact Zoning Laws A) State constitutions grant powers to state government officials. The zoning authority develops a comprehensive plan establishing the goals that the zoning regulation should strive to achieve. the cities and counties get the power to zone in a home rule provision in the state constitution.• In a dissent. The board also has the power to grant special exceptions. board of zoning appeals) that allows landowners to petition the board for redress. If the landowner challenges an official’s (building inspector) refusal to grant a building permit. Most state legislatures delegate zoning authority to cities and counties through an enabling act. C) Constitutional provisions invoked to void zoning laws: 1) Substantive Due Process Clause 2) Procedural Due Process Clause 3) Takings Clause 4) Equal Protection Clause 5) Free Speech Clause 6) Freedom of Association Clause 7) Freedom of Religion Clause D) Standard State Zoning Enabling Act 1) The Standard Act makes cities or counties the primary zoning authorities. board of zoning adjustment. the kind that would be suffered by a normal person under reasonable circumstances. The law of zoning 1. it was argued that nuisance only occurs when the act is intentional and unreasonable.
then all that is left is for the means chosen to achieve the legitimate state interest must be rationally related to the legitimate state interest. If the state can’t show this. B) Cumulative Zoning: The different zones or districts are ranked in a hierarchy. 2) 14th Amendment – Nor shall any state deprive any person of life. liberty. 99 . Also included were restrictions on other things such as lot width. III Constitutionality A) Due Proces Clause: 1) 5th Amendment – No person shall be deprived of life.4) Landowners which are dissatisfied with the decision of the board of appeals may appeal the decision to a court. safety. Each district was restricted based on three major factors: use. A statute will be declared unconstitutional only if the provision is “clearly arbitrary and capricious”. B) Constitutionality in Euclid: 1) Euclid invoked substantive due process. C) “On its face” and “As applied” 1) Facial validity deals with whether the statute is constitutional in any situation. the zoning ordinance was challenged on its face. HOWEVER. Districts limited to residential uses are considered “higher” districts or zones. The law must be trying to promote a legitimate state interest. If the state’s interest outweighs the individuals fundamental right. II Cumulative Zoning and Noncumulative Zoning A) Euclidean Zoning: Zoning by districts is known as Euclidean Zoning. liberty. but no use can be located in a higher zone than that for which it is listed. the law will be struck down as unconstitutional. 2) Under substantive due process The law must advance the public health. The village/city/county is divided into districts. Uses allowed in a higher zone are allowed in lower zones. and area. if the law infringes upon an individual’s fundamental constitutional right. The hierarchy applies to height and area restrictions also. height. C) Noncumulative Zoning: Also called Exclusive Zoning. morals. It usually has to show a “compelling state interest”. If the law does not infringe on a constitutionally protected right. Districts allowing multifamily and business uses are “lower”. This was used in Euclid. or general welfare. In Euclid. or property without due process of law. without due process of law. then the statute must be narrowly tailored to achieve the compelling state interest while infringing as little as possible upon the individual’s constitutionally protected right. having no relation to the legitimate state interest. etc. This is based on how the statute would operate in most cases. or property. setbacks. Only authorized activities are allowed in each district. This addresses whether the federal or state government can restrict individual rights through the law or action at issue. The court held that the ordinance was constitutional on its face because there was a legitimate state interest and the zoning laws were rationally related to the legitimate state interest and that no fundamental individual rights were being violated. the state must then convince the court that the state’s interest outweighs the individual’s fundamental right.
Means rationally related? Issue: Does taking property solely for economic development satisfy the public use requirement? USSC says legit. City of Cambridge. Eminent Domaingov forces you to sell your property to it 2. welfare. • • • • Facts: New London was economically depressed Military base had been closed New London came up with a development plan around Pfizer Certain folks oppose it because some of the property would end up in the hands of private parties…so argued it was not a “public use” Snoe argues that this is the kind of thing we expect government to do Kelo v. is unconstitutional if it is applied to the specific situation. In Nectow v. Condemnationthe process by which Eminent Domain is done. Midkiff decisiontook land from one person and sold to other to diversify ownership. Kelo caused a big revolt 100 . although generally constitutional. Ct. City of New London. Washington DC CaseOK to make aestheticsmotivated takings 2. OK to buy the land. the process of taking your land. Eminent domain. The court found that there was no practical use for the 100 foot strip and that the 100 foot strip would not promote the health. 2655 Substantive Due Process Constitutional Analysis: 1. Tourist development c. ends up working through the state buying it and then sellingLSIdiverse OK. 125 S.2) “As Applied” deals with whether the statute. etc of the city. safety. although constitutional on its face. Meanstransfer legit means…once the state identifies a legitimate state interest. morals. Case history: 1. applies to the Federal Government 14th Amendment extends this to the states. B. C. Quality of life/beauty 2. The zoning ordinance failed to promote the legitimate state interest. or general welfare. Hawaii Housing Authority v. was unconstitutional as applied to the case at hand. regulatory takings. but a 100 foot strip was zoned residential. they must pay you more commonly known as a “taking” from the 5th Amendment to the Constitution “nor shall private property be taken for public use without just compensation” –from the 5th Amendment. safety. and exaction 1. we will OK as long as it is rationallyrelated to the accomplishment of the purpose 3. Business development b. Legitimate State Interest? a. the Court concluded that the same zoning ordinance as in Euclid. said if living in a house. A zoning regulation cannot be imposed unless if bears a substantial relation to the public health. GM and Detroit—Michigan SC said OK to create a greenbelt by eminent domain 4. Plaintiff’s land was zoned commercial.
without just compensation” Public use interpreted as a “public purpose”…USSC is deferential unless the interpretation is absolutely ridiculous once you have a public purpose in mind. we balance D. the government can use any number of methods as long as they are rationally related to the legitimate state interest Has the government “gone too far”? [regulatory takings. C.ReasonsLSIs Increase taxes. called inverse condemnation] most done on an ad hoc basis. “nor shall private property be taken for public use. etc. Takingsmore 101 . jobs.
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