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example- adverse possession through statutes but elements from cases b. Rule of Capture i. method of acquiring possession/ownership (Pierson v. Post) 1. manifest unequivocal intention of use 2. deprived of natural lib erty 3. brought into control whoever first captures otherwise unowned resources is entitled to resources ii. actual seizure not always needed, but mere chase is not enough 1. understand that hunter suffered a harm, but no legal remedy for that damage (damnum) 2. Ratione soli- owner of land has constructive possession of wild animals on it until wild animals take off 3. encourage competition by rewarding captor of ferae naturae) iii. other methods of acquiring title include: 1. purchase 2. inherit (intestate, no will) 3. testate (there is a will) 4. discovery 5. conquest 6. squatter’s rights (through adverse possession) 7. adverse possession a. plaintiff has burden of proving b. after statute runs out and elements met; acquire title 8. gifted 9. foreclosure 10. court awards (i.e. through divorce) iv. A man can compete with another (i.e. making another decoy) but can not maliciously prevent one from working and interfering with trade (Keeble) 1. society wants animal captured so preventing capture is not legal 2. if wild animal on land, then has possession- rationale soli- Keeble v. When both sides can make argument from Pierson: 1. whaler- captured whale by killing it, could show test from Pierson 2. finder- had corporal possession 3. court ruled according to custom that finder is supposed to notify whaler when whale washes up for finder’s fee, whaler never abandoned pursuit, rather captured whale and custom allows for whale to get to his possession (Ghen) 4. Relationship b/w Custom and Formal Law i. claimaint owned whether dead or alive as long as line fastened ii. exclusive right to capturer who had attached harpoon iii. value of carcass split b/w ultimate seizer and harpooner 5. Tragedy of the Commons i. if no regulations on whale population, everyone would take until
2 the population extinguished ii. need formal law to regulate possession/ prevent overconsumption iii. rule of capture used here along with custom to regulate c. Reason by Analogy using the Rule of Capture i. rule of capture extended to oil and gas resources 1. power and tendency to escape without volition of owner so when came under control of new owner, title goes to new owner 2. don’t own a molecule until take it from under the land (like animals) ii. water 1. English rule- land owner owned to heavens above and hell below a. Rule of absolute ownership b. You capture it, its yours 2. American rule- surface water use okay if reasonable a. If unreasonable and harmed others than not okay b. Prior appropriation; whoever gets first and puts to appropriate and reasonable use gets to keep it c. Harder for west than east iii. property on one person’s last, rule of capture doesn’t apply, rationale soli does iv. can take analogy too far into metaphor- i.e. cyber-trespass d. Body Parts not Property i. do not recognize body parts as personal property (Moore) 1. have right to informed consent and fiduciary duty 2. no right to conversion ii. when take cells/blood need to get consent for its purpose and value 1. used it for inventive purpose to patent cell line; science favored here 2. chooses not to extend rule of conversion to this case b/c: a. abandoned property without intent of reclaiming it b. confusion as mixture of things, not sure what belongs to original owner when used cells for product line c. accretion interest by doctors that made it valuable d. could argue that not a conversion, just fast cell production iii. court rejected extension based on public policy implications of making body parts public policy; suggest that legislature address the relevant issues iv. Rule of capture? 1. regents could argue that met 3 element test of capture 2. moore could claim trespass when had corporal possession 3. also use Ghen by arguing for custom e. real property as a bundle of sticks i. property rights are relationships to others with respect to things 1. theoretical 2. right to purchase, destroy, exclude, leave to heirs 3. owners use in court- i.e. regulatory takings to assert ownership ‘right’ as a stick such that others infringed on rights like gov’t with eminent domain ii. close relationship b/w rights and externalities 1. created when making decision without taking into account all costs 2. once take them into account and do anyway, not an externality
3 3. II. Adverse Possession -serves social policy of maintaining status quo a. method of acquiring title to property, i.e. rights to land i. elements come from case law so differ b/w jurisdictions 1. COHENS/ACORNES
a. continuous, open, hostile, exclusive, notorious, statutory time b. actual, continuous, open, claim or right, notorious, exclusive, statutory time
2. differences b/w jurisdictions : a. statutory time limits b. how the jurisdiction treats color of title c. color of title- adverse possessor given defective instrument i. advantages: 1. can get whole when title is for part b. statutory period shorter 3. record owner must have notice of adverse possessor a. one check on land during time period could dispossess ii. when statutory time runs out, adverse possessor gets title 1. does not need to do anything, ‘magically’ gets title 2. today, about 15 years, ways to shorten (i.e. pay taxes on land) 3. England purpose to punish real owner – so statute starts running once first adverse possessor meets all other elements for time period 4. U.S. purpose to reward adverse possessor – so statute runs once adverse possessor completes total statutory time iii. need to meet ALL elements of adverse possession or else negates others met 1. Van Valkenberg determined that Lutz did not meet elements b/c need: a. substantial enclosure (i.e. fences usually adverse possession) b. to cultivate and improve the land 2. case wrongly decided b/c automatically gets possession after time period a. court claimed missing hostility (not enough cultivation, etc.) b. conceding that other party owned land did not give up his title 3. **land used in a reasonable way given the nature of the land in the manner that a true owner would use the land under the circumstances and that neighbors and others would recognize use as exclusive dominion a. use the land as a true owner would use it iv. state of mind of adverse possessor 1. majority rule- irrelevant- can gain title whether innocent or not a. some case law does not reward those trying to ‘steal’ land b. betterment statutes- innocent adverse possessor to recover costs or land through fair market value from the owner 2. minority rule- Maine- need to know trying to establish claim of title a. infer hostile possession along with good faith claim of right v. hostility- objective standard asking if making productive use of land 1. use land as meant to be used 2. even if not always used, could meet continuous requirement (Ewing) vi. owner needs to have actual or imputed notice 1. when a responsible owner would know about land
4 2. mistaken boundary/encroachment (Mannilo) a. rejects Maine doctrine that must known and have claim of right b. defendants should have known that plaintiff AP c. encroachment itself usually meets open and notorious d. whether or not the entry is caused by mistake or intent, the same result comes out in the end and the true owner is ousted from possession b. prescription provides rights to use land but no title i. does not need to be exclusive, interested in rights not title (like an easement) c. rule of thumbi. adverse possessor acquires what owner had at the time cause of action accrues 1. severance i. whoever owns surface owns below and above ii. if severed before AP then only get the land owner owns at time of action, if not severed, get all property iii. if someone else had right to subsurface if surface owner allowed to check subsurface then you are allowed to do it iv. possible to encroach on air rights, often handled prescriptively v. depends on nature and quality of land to determine what is enough to adversely acquire surface vi. statute could run separately on subsurface and surface 2. if owner only has life estate, and someone else has remainder, adverse possessor gets title to owners life estate interest and remainder still has interest (Wengel) i. unless statute says otherwise, person with remainder interest can not bring action against an adverse possessor ii. buyers not protected in the same way heirs might be a. buyers should look into property before buying b. heirs might have an extra year or two within statute or bring an action against an adverse possessor d. Color of Title i. invalid instrument, usually a deed that describes land owned by record owner ii. color of title possession has benefits for adverse possessor 1. shortened statute of limitations 2. constructive possession a. can gain more than land actually lived on b. needs to be reasonable in proportion to entire land 3. owner must not be vigilant with regards to land iii. color of title usually gives adverse possessor benefits compared to no title e. AP against the government i. generally, AP does not run against local, federal, or state governments ii. English principle of nullum tempsis iii. against PP to take away public land b/c anomaly to take away community resource, shows government negligence, and citizens should protect; not make claims against the state iv. some change on local level; either ignoring case or new statutes
tolling and tacking i. infancy ii. spouse to succeeded spouse. etc. contrary to general rule of AP b/c usually need to do something special (i. 19th Century i. second possessor must meet all elements of AP c. NO SYMMETRY b/c government can acquire land by AP 1. check months to make sure statutory period met 5. BUT. disability needs to exist at time cause of actions accrues to help owner a. AP in Florida i. 95. i. Take year ownership sought 2. need to check for disability g. private property usually type subject to AP not public b. tacking must be in privity a. Compare answer to statutory period 4. blood. permitted with respect to conveyance and adjacent lands h. infancy removed by reaching majority or death b. insanity removed by cure/better/death c. Subject year cause of action accrued 3. death.5 v. oust true owner) but here government does not need to f. disabilities removed: a. AP has title -if equal. don’t care about subsequent disability whether true owner or heir has one – even if ONE minute after action accrued then considered subsequent ii. etc. insanity iv. How to determine if statute of limitations passed and title passed to AP: i. like Ohio. imprisonment (not everywhere. check statute) 2. married woman v. imprisonment st b. Wolf’s Anal Retentive Method 1 1. ancestor to heir. insanity iii. protects record owner b. soldiers and sailors ii.e. tacking for benefit of adverse possessor 1. Fla. only do disability analysis if statute has passed c. imprisonment removed by release or death statute starts running when disability removed 3. legal infancy iii.16 . tolling for benefit of owner 1. b. Stat. can acquire property via foreclosure a. If answer greater than statutory period.contract. contractual or blood relationship from A to B. Disabilities a. distinction b/w property in public use and private 2. 21 century – left with: i.
mutual bailment. open and notorious harder 3. borrow & don’t give back 3. If find due diligence. detenue. fraudulent concealment. give back after certain time.action to recover damages from something unlawfully taken a. if P not due diligent and D fraudulently conceals then statute of limitations starts running as soon as property missing so D wins j. without color of title 2. NY rule encourages buyers to look into title before buying 2. open. rules do not make sense when property not tied to land (O’Keefe) c. 95. for 7 years with enclosure or cultivation 4. borrowers who don’t have higher obligation than those who pay 4. Actions under personal property recovery: 1. exclusive.18 1. If owner not due diligent. like rent iii.this one is easier than real property 4. replevin.what constitutes continuous? 7.6 1. hostile. NJ court uses discovery rule: so long as owner duly diligent in looking for lost property. Adverse Possession and Personal Property i.recover personal property unlawfully taken 2.not using in a way adverse to real owner 5. can not apply principles from real property to personal property against owner 1. color of title 2. not meeting elements of AP where AP applies b.wrongful detention of goods. Fla. trover. Coase Theorum i.defendant conceals property a. substantial enclosure ii. payment of taxes for first year of occupation i. continued possession for 7 years 3. easy to see leap from real . hostile possession 3. statute of limitations doe not begin to run until owner knows or should know of location of property a. not making productive use (besides selling really and then not owner) 2. majority approach uses adverse possession with personal property a. assignment of legal right irrelevant if transaction costs are zero b/c productive user of property will use it & make efficient agreement leading to same outcome . Stat. actual. continuous. Snyder: 1. O’Keefe v. Looks to conduct of owner b. using property according to nature and quality of property? 6. Objective and subjective test c. Definition of due diligence depends on nature & quality of property d. continuous.personal when dealing w/slaves/chattel b. statute runs and loses property in AP 3.pay to borrow. though many elements hard to apply. still use notions of AP in personal ii. statute of limitations does not start to run until owner knew or should have known of location e. use land in usual way 4.
make self better off but not make anyone else worse off in the process = perfect world b. Modern critics who want to leave feudal past come back to same notions 2. farmer uses land. contracts and criminal. Norman Conquest a. If court finds AP and not due diligence. If court says not an injunction. a totally honest person entering a contract or a criminal who weighs cost of punishment against committing a crime III. most important 2. principle same but outcome reversed iv. first set of tenant-in-chief did not get life estate in exchange for services iv. Just like with torts. Coase theorem works in perfect world i. Real world flawed and has transaction costs. owed services to above in hierarchy 1. A keeps using cave. Economic. if court assigns right to RR then RR pays farmer to move. Unfree tenures. Posner adds idea that efficiency promoted by giving right to optimal user 1. if values reversed.Socage iii. Feudal times b.mesne lords. efficiency is not justice or fairness a. negotiate with lord and servants to get what they both needed .Serveantry c. Marengo cave. If court rules that sparks are a nuisance. chief held land in agreement to provide services ii. Needs i. Estates 1. Pareto optimal/improvement. iii. Trying to create social equilbrium c. Some political connections but mostly a conquest b. vi. then right goes to Snyder but O’Keefe will buy back. Railroad and farmer example: RR benefits $100 from use. hierarchy developed: king-tenant in chief. Where do property rights come from? a. If court assigns right to RR then RR uses and farmer moves.Subsistence. so settlement may not be worth it or may not be most efficient if assign rights to most productive user or may be relevant who you assign the rights to in the first place ii. then farmer gets injunction and RR has to stop sparks. If court assigns B the right.no such real thing as reasonably prudent person.7 ii. provide knight service. this way had military service and other needs met iii. If court assigns A the right. farmer pays RR b/w $50-100 to prevent sparks and still makes profit in difference than if nuisance still there. land tenure based on relationship to land 2. A will pay B to use cave. Military 1. v. B knows A using land.A uses Bs cave for tours.Frankelmoign iv.demesnes i. O’Keefe case: If Court finds due diligence than O’Keefe keeps. Either way RR uses and farmer moves. farmer loses $50 from railroad’s use. Religious. later king took money ii.
collaterals. wardship. lord gets land back b. less wealth for baron b/c rung in between so may not get full value of land or incidents b/c went to mesne d.tenant died.heirs include lineal. primogeniture system governed inheritance ii. today. allowed alienability to transfer . do not provide services. goes every direction that unusual for person to die without heirs i. spouses. upper lords b/c could get land back ii. escheat a.male and single owner i. lower lords b/c could alienate w/out permission d. ancestors. originally did not include collateral/ancestors b. with permission. wardship and marriage a. land returned to lord b. avoided feudal incidents: 1. incidents went to rung directly above so if land forfeited or escheat went to mesne and not tenant-in-chief vii. later illegal b.8 v. feudal incidents (think of as taxes) 1. ransom from captors 3. adding new tenant to bottom of ladder c.benefits of land until kid reaches majority b. tenant died without heirs. formed by Quia Emptores 2. later down to 3 instances: i. feudalism declined 1. limited definition of heirs leads to greater possibility of escheat --incidents become more important than feudal services vi. issue. can negotiate better deal with new servant 4. today land returns to state 6. change property to someone else b. homage and fieldy a. pay king when needed. forfeiture a. primogeniture system. marriage. favored method by i. aids a. even if someone closer in kinship to deceased. subinfeudation a. relief. escheat and forfeiture eliminate needed for mesne lords 2. first son knighted.heir has to pay tax to keep land a. substitution a.lord can marry heir to his choice husband 5. ceremony where servant would vow loyalty to lord above 2. less rungs so if incident property to tenant in chief c. first daughter marries. statute quia emptores prohibited subinfeudation 3.
“to A and his heirs” a. descendable and devisable 4. at common law. “to A and the heirs of her body” a. land passes to heirs of first taker i. Types of Estates in Land 1700 cut off point for our class: Post De-Donis. alienable. possibility that fee simple is infinite. stillborns a. Johnson v. illegitimates b. fee simple determinate b. substitution more economic than feudal 3. Purchase: WHO gets land. identify person who estate is created ii.” assume that unless says otherwise 5. A got a life estate (think lord giving to tenant for life only) b. fee simple conditional c. fee simple executive interest ii. created by De Donis a. heirs get fee simple c. if conveyance creates future interest in a grantee following a fee tail. General ii. keep land in family i. defeasible a. then has reversion interest (i. Emptores. Limitation: duration/type of estate 2. modern approach is to give what you had 3.9 a. Special (heirs of Mary’s body) 3.e. Male iii. Whiton.no new estates. Fee tail 1. adopted 3. land could not be alienated 2. then O has reversion interest in fee simple) i. conveyance has to fit in with language i. issue did not include 1. grantor has reversion on expiration of fee tail a. cries ‘to 4 walls’ then alive 2. Statute of Wills a. future interest is a remainder . first taker gets life estate. O to A for life. only refer to fee simple absolute when present and future interests are in the same person at the same time 6. when make a grant in fee simple. Words of Purchase and Words of Limitation i. if did not use this language. no future interest after fee simple absolute b. Language indicates entailment in: i. don’t need to say “and his heirs. could endure forever a. Fee simple 1. if owner conveys something less than a fee simple absolute.
fee has to go somewhere. or. Category (2). then it shall vest in any other remaindermen designated in such instrument. shall be entailed in this state.10 b. Three rules for future interests (fee tail and life estates) 1. goes from owner to original conveyor (if even for a second) to heir c. if no issue at time of first taker’s death. grantor gets reversion interest 7.has its own rules: Fla. only expirable estates could be followed by a future interest in a grantee 2. first life is a fee tail and issue that survive get FSA i. issues must survive first taker i. then B loses rights.creates fee simple 1. express or implied. If the remainder fails for want of such remainderman. shall be deemed to create an estate for life in the first taker with remainder per stirpes to the lineal descendants of the first taker in being at the time of her or his death. Maine & Rhode Island have fee tail a. creates fee simple and cuts off any reversion interests 5. Category (1). first taker gets life estate.fee simple absolute but something followscondition that A has surviving issue. Most jurisdictions today have abolished fee tail. if first taker tries to alienate fee tail. real or personal. Massachusetts. Florida. a. easy practice to do through recovery/deed during life c. can not alienate fee tail through will b. at common law. doesn’t matter what follows 2. If A does not have surviving issue then B has rights 6. then it shall revert to the original donor or to her or his heirs. future interest must not take effect before expiration of preceding estate -can not cut short life estate 4. Fee Tail in Ohio a. grantor has reversion. grantors reversion interests can be split among issue.fee simple absolute. Ann. Delaware.14 No property. Stat. grantee gets Ohio fee tail per autra vie iii. § 689. issue get remainder in fee simple per stirpes b. whatever surviving issue share FSA ii. as well as fee simple can be split among issue if more than one surviving at time of death . future interest created must be capable of taking effect immediately upon expiration of the preceding estate 3. if there is no such designation. reversion only in grantor him or herself -At common law fee tail conveyed to someone else during life gets a life estate measured by conveyor’s life estate then reverts back to conveyor i. Any instrument purporting to create an estate tail.
O has reversion interest and B gets fee simple. exists in modified form in Iowa and South Carolina. child alive at time of grant not enough c. person who grants to child once born has a life estate e. whoever claims land is called general occupant for life of conveyee i. if life estate holder dies. A to B. “to A for life” a. life estate + reversion interest = FSA to grantor (merger) 2. At common law a.11 b. Fee Tail in Illinois a. Illinois calls first taker life estate like Florida 8. Life estate so long as … ii. does not exist anymore b/c of De Donis that formed fee tail b. Determinable i. If A does not have issue.issue MUST survive owner. Fee Simple Conditional a. grantor loses reversion interest to issue b. so needs to be alive at time of death in order to gain interest. B to C for B’s life b. issue has vested remainder in fee simple c. can not take title by adverse possession even if statute of limitations shorter than A’s life because can not adversely possess future interests (Wengel)) . back to state? iii. Life estate 1. Grantor retains reversion that comes into play when life estate expires or condition broken c.ends at end of measuring life i. not grantor d. O to A and heirs of his body meant that so long as A had heirs. Per autravie i. life estates are always followed by future interest d. let’s say B. life estate presumed unless said otherwise i.look to statutes to know how it works c. If no condition of survivorship: i. Can get one without it being granted as one 1. not an estate of inheritance. once child born. grantor lost interest and child’s issue inherits g. usually measured by life of conveyee e. comes from feudal period b. gives right to create fee simple for someone else. In Ohio and Florida. issue of child gets fee simple absolute whether or not child survives ancestor f. Life estate for the life of another ii. reversion interest subject to defeasance d.
Decision. consider interests of all the parties iii. courts wrestle with life estate with remainder to future interests or fee simple absolute 3. Dissent.grantee promises not to transfer interests. don’t want to change land character b/w generations ii. promissory. emblements a. failure to take reasonable care of the property iii. Brown 1. has to be necessary ii.land itself viewed as a commodity. permissive-negligence. not AP c. more so with wheat than apples .care about the bottom line 1. 5. fee simple absolute presumed unless said otherwise i. forfeiture. need to figure out present value and future interests b.12 ii. modern law a. perspectives in England v. America i.grantee attempt to transfer forfeits rights in land iii.voluntary acts that injure property value 1. if AP possessor injures property. if plant crops. Law of Waste a. Wheedon) i. disabling.she knew how to grant in FSA b/c did FSA with property so she intended a life estate here 4. Americans. use life expectancy and annuity tables.looked at context in whole and absolute interest favored -intent seemed to be more than life estate -attempt to restrain alienation disfavored i. Valuation of Life Estate a. White v. follow modern rule 2. Types of Waste i. injury by present interest / physical presence ii. equity courts have jurisdiction to order sale of land to prevent future interests and waste (Baker v. can take them off land b. and then reverts back to conveyor 3. future interest holder can sue present owner for damages. England.withholds grantee’s power to transfer interests ii. if seriously impinge on financial rights of future interests then look for alternative to benefit all b. modern law.conveyor gives whatever has during life to conveyee. affirmative. enforceable by contract 4.
Court sympathetic to brewery who thought they were getting FSA but really got life estate measured by wife’s life b/c only had dower that was measured as a life estate c. etc. shows exception for waste b/c not penalized for changing character of the property 3. Leaseholds 1. similar exception in open mines. Co-owners 1. take wood off property for essential needs b. Seisin created or transferred in livery of seisin ceremony 2. etc. amerliorative waste a. all estates had seisin b. if mine open when come onto property can extract minerals. all land had to be seised ii. estover a. Life estate ii. co-owner in possession damages then other co-owner can bring a suit in waste iv. not allowed in England d. Freehold estates all had seisin a. actually enhances value c. sold dower to brewery company that demolished home & land for brewery b. Landlord tenant 1. Common Law . In feudal times. 2. if you work land. Pabst case a. for profit d. If not open at time of entrance than can not extract. can keep growth d. eminent domain changes character of property but just b/c get compensation of valued land in monetary value 4. changing character of the land b. Other Settings for Waste: i. Problems -takes temporary view of property -could be premature conversion -environmentalists don’t like b/c ruin land.13 c. In feudal times. Responsible for feudal services i. tenant responsible to owner for waste iii.
Present possessory life estate in grantee ii. absolute constraints on alienability abhorrent 1. grantee retains FS subject to condition subsequent c. law prefers covenant. personal property.e. grantor retained FSA b/c granting of real property separate d. Mahrenholz case. Estate for years 1. then move on 1. At 1700 a. prefers condition subsequent if ambiguous ii. make sure it’s a fee simple first. automatic expiration of estate based on a stated occurrence/nonoccurrence 1. Grantor retains fee simple absolute iv. Estate in years grant creates i. statute of limitations begins to run once O comes back 1. though court has preference for condition subsequent.son with possibility of reverter can inherit reversion if property not used for school then do with it what he wants iv. give land to someone who may or will lose it based on condition b. also known as upon a special limitation b. Fee simple subject to condition subsequent a.language intended to create mandatory rather than permissive return. Fee simple determinable a.broken promise. law abhors forfeiture i. grantor retains possibility of reverter i. Defeasible Estates -need fee simple language. to A and his heirs + so long as ii. Toscano case. separate from real property c. grantee has personal property not any freehold estate 3. Nonfreehold estates b. Did not use livery of seisin ceremony i. looked at intent of grantor’s who intended property used by school (definition of school use not resolved). then limitation 1. covenant. Grant from O to A for x # years 2. damages in contracts iii. then condition. not real property b. if stays on land after considered trespass 2. ownership limited i. “to A and his heirs” + qualifying language -make sure to go in order – i. needs to take affirmative action ii. grantor retains power to terminate/right of entry i.14 a. Still nonfreehold estate b.habendum clause to define the extent . chattel real a.
power to terminate/right of entry a. courts do consider context so if may hamper alienation.15 of the issues granted 2. Future Interests in Grantor (reversionary interests) 1. its in someone else 4. present owner takes damages v. descendable and devisable 1. if defeasible fee condemned. construe land use restraints acceptable but not land Alienation i. can be subject to complete defeasance ii. creditors can reach any alienable interest debtor has 2. descendable and devisable b. alienable. fee simple subject determinable b. reversion (everything else) a. indefeasible a. Fee simple with executory interest a. can inherit c. that’s okay but not a total limit 3. looks like fee simple determinable but instead of future interest in the grantor. estate not does revert automatically. grantor must exercise his right of entry vi. when grantor gets interest back for sure c. estate automatically reverts to grantor upon the occurrence of the state event 3. estate automatically returns to the grantor 2. remainders a. can inherit c. can not alienate or devise possibility of reverter ii. all reversions are vested i. common law i. Fee simple subject to executory interest a. if debtor can voluntarily transfer it.will enforce clauses that provide support until marriage but not those that penalize remarriage b. language similar to condition subsequent. can not alienate or devise possibility of reverter ii. fee simple subject to condition subsequent b. then the creditor can reach it . possibility of reverter a. Other information on defeasible fees: a. Future Interests in Grantee 1. subtle distinction but meaningful. c/l favors marriage. vested i. common law i. but future interest to 3rd party. alienable. not power of entry b. grantor retains nothing because interest in third party most executory interests violate Rule of Perpetuities 5.
as each issue is born. class closes at end of measuring life (or parent of issue) i. if issue born after class closed. no mandatory gap in grant a. ascertainable person and no condition precedent besides the natural ending of the preceding estate iv. unascertainable person to subject to condition precedent ii. if have remainder and could lose it v. A and B each have a 50% vested remainder subject to open 3. does not cut off other interest 3. possible for interest to take effect right away b. interest waits patiently. contingent i. vested subject to complete divestment a. grantee are members of a class b. life estate b. fee tail c. follow a valid particular estate a. rule of convenience ii. starts at 100% vested remainder subject to partial divestment 2. if ambiguous. if mandatory gap in seisin not a remainder iii. the grantee’s interest adjusts 1. indefeasibly vested a. new issue does not have an interest 3. law favors vested over contingent b. vested subject to open/subject to partial divestment a.16 ii. reduced in equal shares to new addition a. closed when not possible for others to enter the class iv. window open for possible current pregnancies (9 month until closes) iii. estate for years 2. certain to acquire the interest and will be entitled to the interest permanently 2. examples include unborn children and heirs . types of vested remainders: 1. how do you know you have a vested remainder? 1. preference for vested remainders 1.
not for personal property e. fee simple subject to executory limitation d. know what’s interests are right away c. doctrine good b/c makes land alienable b. abolished in great majority of jurisdictions .17 iii. then to B for life. Becomes indefeasibly vested remainder in fee simple in A ii. then destroyed 2. at common law. if life estate and next vested estate are simultaneously created. Rewrite a grant that says: O to A for life. then they do not merge at that time to destroy remainders (says same thing as iii. then to A’s heirs as O to A for life. doctrine of merger can apply c. does not exist in modern law except in Florida a. purposes for rule i. then to A and A’s heirs. NO future interests in fee simple determinable. Rule of Shelley’s Case 1. one grant purports life estate or fee tail in one grantee and then fee simple or fee tail to heirs of first grantee a. REMAINDER TRICKS i. above but easier to understand) v. alienability iii. feudal tax evasion ii. rule of law that applies regardless of grantor’s intent d. fee simple with an executory limitation. if interest does not vest at or before the termination of the preceding estate freehold. life estate or remainder both equitable then becomes fee simple or fee tail b. fee simple subject to condition subsequent. so does not have power to have one but has power to grant this estate iv. subject to destructibility doctrine 1. i. If contingent remainder in between 2 interests then remainder not destroyed iii. contingent remainder destroyed and merger applies 1. then to B for life. If interest owner sells the interests to someone else.
no children at time of devise 1. raises presumption that no remainder created ii. joint tenancy in life estate iii. avoid feudal incidents b. property passed down as a reversion instead of a remainder 3. Rule in Wild’s Case 1. future interest is void b. goes to legatees. children at time of devise 1. modern rule a. inter vivos conveyance that purports to create a future interest in the heirs of the grantor a. executory interests a. purpose of rule a. rule of constructions i. rule of law 3. personal as well as real b. common law a. Court prefers contingent remainder since destructible while executory interests are indestructible b. when ambiguous grant and possible to interpret as a contingent remainder or executory interest. no children at time of devise 1. fee tail ii. real property only b. tenants in common in fee simple absolute iii. but not through this grant b. children at time of devise 1. both cases testator left with indefeasibly vested remainder in fee simple 1. fee simple absolute ii. Doctrine of Worthier Title 1. grantor has a reversion 2. common law i. rebuttable presumption by grantor iii. look for grant to someone’s children a. indestructible i. springing.18 ii. both cases testator left with nothing 2. Purefoy 1. modern law i.follows the necessary/mandatory gap and comes from the grantor .
Rule Against Perpetuities 1. life estate and contingent remainder not enough to merge into a FSA e. If any possibility that will remotely vest than the interest is VOID i. a person forfeited his property by i. if want to extend the measuring lives as long as possible. if life estate and next vested estate are simultaneously created. Ways to lose interests in land: 1. then grant to . any intermediate contingent remainders are destroyed 2. repudiates and destroys estate and claims a new fee simple by disseisin that is transferred i. present life estate and indefeasibly vested remainder in fee simple merge into FSA d. trying to create more than had 2. usually but does not always cut off preceding interest d. comes from grantee. shifting. then they do not merge at that time to destroy remainders c. MUST vest or fail to vest b. forfeitures a. this method obsolete today ii. rose from tension b/w deadhand control and alienability 2. first taker refuses to take estate iv. condition in grant not fulfilled iv.19 c. interest must vest or fail to vest within 21 years (+ gestation period) at time of grant a. ask first if it springs? vii. felony iii. tortuous conveyance 1. smaller estate merges into larger interest and smaller ceases to exist as separate estate b. mergers a. any contingent remainders depending on grantor’s old estate failed b. at common law. when life estate and vested remainder or reversion in fee come into the hands of the same person.if does not fit description of springing then its shifting. when analyzing a question. In grant.
Look at punctuation as to what to cross out ii. common devises a. At common law. Measuring lives a. as opposed to infectious invalidity 2. RAP does not apply to a.20 babies such that the interest must vest or fail within 21 years of baby’s life c. assume that people can have children at any age i. charity to charity exception i. precocious toddler iii. courts invalidate grant though looks like grantor did not intend it a. tell the story from the beginning and if possible that the interest will not vest then it is void d. usually will void only the last interest if the rest of grant is good 1. if can stick with grantor’s intent and only strike out invalid part then will iv. cross out everything after the comma 3. possibility of reverter and power of termination c. if end of grant goes to someone other than charity. does not violate rule . A to charity in fee simple determinable. testator: to my grandchildren than reach 21 i. female octogenarian ii. Some lives in being not mentioned directly by the grantor but implied as lives in being i. does not violate rule b/c will be within measuring lives of testator’s children 4. If void. Start with names in grant b. not yet born widow 5. does not violate RAP if granted from charity to charity ii. Present possessory estates b. A has possibility of reverter 3. Future interests in grantor i. use 2 conveyances 1. Baby in gestation is a life in being c. if want to convey the interest to another party after the charity. Reversion. cross out the interest i. O to A in fee simple absolute 2. then RAP voids iii.
Any fixed or computable time 1. need to do RAP analysis on wills made before RAP done viii. creates RAP problems since CR indestructible 2. if don’t do it right it becomes a FSA and can alienate b.21 6. needs to list beginning and more importantly end date iii. But unless retroactive. interest valid and reverts back iii. jurisdictions split on what happens if something follows interest so look at information on exam IV. Rule in Shelley’s Case and Doctrine of Worthier Title = abolished 3. Contingent remainders i. Vested remainders subject to open 7. except interests limited to life b/c interest ends at death 5. as long as 99 years 2. RAP applies to a. RAP mess. Modern rules for present and future interests 1. Many states have laws that got rid of this b. estate for years i. If interest destroyed at CL. Modern RAP a. now leaseholds are the fourth type of freehold estate 2. leases were chattel-real as personal property i. can be as short as one day. ALL future interests are alienable. Landlord-Tenant Law 1. then must vest or fail within 21 years and destroys problem. think of as term for years ii. then treated like an executory interest c. Executory interests b. responsible for other jurisdictions as fair game 6. lease automatically ends and LL not entitled to notice . this includes possibility of reverter & power of termination b. descendable and can be devised a. Types of Estates a.look to information on test to see what applies 4. only one jurisdiction recognizes contingent remainder destructibility a. fee tail is a FSA a. at common law. If contingent remainder indestructible (like in majority of modern jurisdictions). principle bolsters notion of free alienability 1. Generally destroy a lot of RAP problems b/c generally follow life estate and a contingent remainder must become vested before the time it becomes possessory or the interest is destroyed at CL ii. numerous clausis a. fit the kind of estate into one of the types i.
here the LL’s executor had power to terminate and the tenant did not a. or 2. Gerrish 1. example: give notice on May 17th for a month to month i. disagreement for amount of notice a. at common law. if language says: to T at an annual rental of $24. insufficient ii. Periodic tenancy i. notice is sufficient upon receipt. read the agreement to be a lease i. treat as notice for June 30th v. end date of termination 2. establishes periodic tenancy 2. i. as an life tenancy determinable on tenant’s behalf treated as an estate for years determinable . one month’s notice required a. main difference b/w estate for years iii. Fixed duration until LL or T gives notice of termination 1. could need notice for extension. if year to year. if no statute then say either.000 payable $2. in modern law. required for the length of the tenancy 2. Need both parties to have power to terminate 1. at common law.22 1. either viewed as month to month or year to year with rent at installments of $2. court found that a tenancy at will is not created when one party. Lease for a period to period ii. Garner v. if there is a statute. notice must include a. follow the state b. notice rule discourages period to period tenancy vi.000 c. if only one party then not a tenancy at will and something like a tenancy. Notice 1. full period’s notice b. automatically extended for another period unless notice given 2.000 per month on the first of each month 1. modern law says to pretend notice sufficient for end date of the next full period a. need sufficient notice otherwise treated as none 1. if month to month. or ii. for 7 – 12 months. any period of year to year is six months notice 3. Tenancy at will i. insufficient notice waived the notice 3. at common law. not at time of sending iv. not for expiration b. notice = to length of period. imply reciprocal power in other party and call it a tenancy at will ii. 6 months notice b/c longer than 6 month periods 4. need six months notice b. if one party dies than tenancy at will over iii.
Leases are property contracts i. Assignment . common breach is when sub-leasor or assignee does not pay rent 2. now tenant is holding over after the lease ends a. leads to line drawing problem ii. majority rule usually creates a periodic tenancy i. start express or implied new lease -same terms as original lease a. not life estate b/c could not alienate ii. not a tenancy at will. LL can: 1. so has to be something else d. usually month to month for up to a year b. last approach is sue for double rent i. accepts month to month 3. Contract creates leasehold estate ii. LL that accepts rent after refusing to accept rent as periodic tenancy for month to month can not then hold tenants to new lease for new period as original lease after trying to evict ii. if LL does not treat as holdover then LL does run risk that could turn into AP iii. if accept regular rent then create month to month d. determinable b/c he could decide not to rent it iii. period determined by rent payment ii. benefit to LL is do not treat holdover tenant as trespasser for AP purposes 1. AP possibility b/c treating as a trespasser 1. other view is that holdover creates new lease to same period of time as original lease c. Restatement takes view that if tenant can not move because of near impossibility and is beyond tenant’s control then relieves tenant of holdover i. when tenant holds over. privity gives the LL the right to sue the assignee of the tenant on the covenants in the lease and to give the assignee the right to sue the LL on her covenants b. Tenant had the right to be there in the first place from estate for years. Tenancy at sufferance i. sole right to tenant to end when he chooses b. Tenant in privity of contract and estate with the landlord 1.23 1. no excuses for holding over b. once LL treats as trespasser and refuses to extent month to month but fails to pursue remedy of ejecting. Some cases draw de minimis line if does not affect LL. at common law. evict with damages 2. Assignments and Sub-leases a. periodic tenancy or tenancy at will 1. Crechale case i.
LL can sue T for rent the same as with assignees iv. T1 has PP estate for years a. the right of re-entry makes it a sub-lease iii. LL has indefeasibly vested reversion in fee simple 2. LL. But no privity b/w LL and T1 here i. T knows that if assign then T1 has to pay c. Right to enter alone (at least in Florida) is still a sub-lease 1. can sue T2 for the rent b. T and T1 have property interests 1. T1 has PP estate for years 4. Secondary liability 1. LL has indefeasibly vested reversion in fee simple 3. under modern law. T and T1 have K relationship also 2. Transfer all but even one day ii. Sublessee not personally liable to LL b. T1 is personally liable to LL/has duty to pay rent 2. LL and T expect T to collect rent for entire period ii. though not directly promised by T1 to LL. LL and T1 have property interests 1. any other promise that T made to LL were personal in nature and only require rental payments iv. T1 has notice of original rental agreement b. Not before and not if he reassigns i.24 i. LL can not sue T1 b/c of privity . LL can sue T if T1 does not pay a. but only get one recovery 1. T has vested reversion in estate for years 3. Transfers the entirety/remainder of lease agreement ii. Exception is if there was novation i. K relationship is still there ii. Reassignment terminates privity with LL c. Forms privity of K & estate with T1 iii. B/C LL and T1 have privity property relationship. T1 only responsible for rent when he had possession a. real property relationships b/w LL and T1 ii. LL can go after T and T1. LL can sue T1 a. T has nothing b/c assigned rights to T1 5. LL and T1 are in privity of estate a. T still liable to LL for rent though assigned i. State of mind of original parties i. New contract b/w T and LL that releases T from rental payments upon novation ii. assignee had the right to occupy i. LL and T have a contractual relationship 1. Sub-lease i. right to enter alone was an assignment under common law 2. LL and T have K relationship 1.
court reads in ability for tenant to transfer interest c. called it a sub-lease c. statute provides LL can go after sub-leasor 3. financially responsible ii. default position is that land should be freely alienable a. objective test: reasonably prudent person a. but persuasive ii. signed new lease with LL b. Ernst v.25 i. LL must have reasonable reasons for denying transfer to assignee or sub-let i. using words sublet were not conclusive of type of transfer e. it is narrowly construed by the courts to favor alienability i. Conditt 1. Idea is that residential tenants can go elsewhere and not held to monopoly of LL 2. using language is not conclusive. tenant did not retain any interest after transfer 2. can withhold if there is a reasonable reason . this does not release T 2. if lease silent about ability to transfer. start with this principle when analyzing b. Kendall v. there is a new K b/w LL and T1 a. general rule that assignment transferred the entire interest and left no reversionary interest i. making money off deal is not a reason 2. transferee remains liable to the LL as LL is beneficiary to the K c. Pastana 1. some lower courts found in favor of LL based on this theory b. or change in common law based on third party beneficiary theory a. tenant transferred to another party a. signed lease with new party. Unless 1. distinguishing b/w sub-lease and assignment i. considerations: i. Wolf. if term requiring consent in the lease.seems less logical to protect commercial tenants who have more negotiating power than residential i. older view that LL may arbitrarily refused to accept a new tenant ii. commercial settings only. commercial landowners need to be reasonable 1. different rules apply to residential a. suitability for building 3. assumes the covenants of the master lease so liability continues even though there is a further assignment of the leasehold d.
Could use force or take personal belongings if needed iii. had FSA interest to protect b. Once waived. LL was not liable to tenant b. does not follow legal precedent 2. unless provision in the lease saying otherwise 2. tenant’s had no rights i. presumption in favor of LL b/c: a. if make one transfer and LL does not reinstate the provision. Wolf likes b/c in favor of alienation iii. T can transfer ii. 1960’s. even during a valid leasehold a. covenants to do or not to do a physical act on the land runs with the leasehold 1. LL can not refuse and then lease without the original T to make money. If value goes up and there is an interested party to sub-lease or assign. T still had to pay rent a. not majority rule a. quiet enjoyment) can be enforced against whoever is the LL at the time the covenant is breached 4. a. in the 18th century. During the 19th century. LL-T Revolution/Counter-Revolution a. Constraint in K requiring LL consent before transfer. also protect through tort relationship 1. the covenant is destroyed c.26 4. Rule in Dumpor’s case 1. does not apologize from the departure from the common law as it existed. during the 20th century. if LL did not fulfill duty. in 19th century. Lessee had a personal property interest in the land ii.e. no leases 3. changes made to have leases that favored LL . implied covenant (i. LL were treated better that those similarly situation in contracts 1. Purpose is to assure the LL that a responsible T is in control of land during the lease 2. LL could remove the T at anytime. Punishes LL/person trying to restrain alienation b. still need to pay though could get better deal elsewhere b. Independent covenants were used 1. LL had more money at risk c. Justice Wright on the District of Columbia Court 1. LL gets guaranteed income from transaction. court made law changed LL-T law i. If value of rent goes down. T bears risk a. Owner maintained a present possessory FSA d. LL waives right to consent on future transfers. Restatement rejects this rule i.
Right to constructive eviction i. T not allowed any excuses b/c of independent covenants 4. Demonstrates K relationship b/w LL-T c.27 a. LL must substantially interfere with T use and enjoyment 1. hard for T to get out of rent 3. first change through constructive eviction 1. some cases of constructive eviction a. no sewage. LL could evict T for no reason a. does not apply if violations made after the lease was signed 3. if LL wrongfully interfered with the T enjoyment of the demised premises or failed to render a duty to the T as expressly required under the terms of the lease. Demonstrates leap in doctrine from impossibility to inconvenience b. LL has to have actual or constructive notice a. T released from rent (unless clause in lease requiring T to pay anyways) 4. Reste Realty v. what a reasonable person regards as incompatible with purposes that premises leased 2. T must vacate to make this claim 3. changes in 20th century b/c judges felt process unjust ii. Unsanitary and unsafe that violated housing code 2. Found that implied quiet enjoyment found in a lease i. If code prohibits renting of premises in violation of the code then LL can not enforce any covenant to pay iv. change from independent to dependent covenants . must be some fault by LL iii. LL could bring summary eviction proceeding against T for things such as not paying rent b. T could collect (though unlikely) damages b. illegal leases is another change 1. Cooper accepted new lease when aware of flooding and possible continuous flood damage with caveat that the LL would fix the problem c. Brown v. Cooper a. rats. at time the LL and T entered into a lease. T has right of enjoyment of premises without interference by the LL d. the T could abandon and cease paying rent 2. Unless evicted by LL. Tenant needs to vacate within a reasonable time f. fire caused by LL fault b. Southall Realty i. in 19th century. Court views flooding as recurring and permanent problem e. measured objectively. minor violations do not render illegal 4. it was illegal a.
Interference with statutory right provided in housing code b/c undermines legislative policy c. can withhold rent for repairs 4. now: ii. LL did not correct defects ii. Hilder v. T can withhold rent 2. patent & latent defects b. Unless LL gave express warranty the T took the land as is b.28 1. counterrevolution that decreased LL rights 1. To determine breach i. LL has duty when lease signed and continuing duty 2. look to statutes on how to handle iv. Proof of retaliatory motive is on the tenant i. Oral and written leases.Javins iii. T can waive minor defects but against PP to permit T to waive anything making the premises unsanitary or unsafe b. before action. put into escrow acct to show good faith 3. Peter i. See if claimed defect has effect on safety or health of the tenant 3. LL made promises to fix numerous defects that never did and T made at own expense 2. clean and fit for human habitation a. Under common law. LL needs reason other than turning in to housing codes to justify eviction a. St. implied warranty of inhabitability a. T did not pay rent. Can not evict if motive is to retaliate for reporting code violations b. T must notify LL of breach 4. Covenants are dependent. LL will deliver and maintain through period of the tenancy. breach does not even require that tenant abandon the premises (have to leave for constructive eviction) b. Remedies now available to Tenant: a. NO retaliatory eviction 1. premises that are safe. First look to relevant housing code ii. T can not be in default to assert this defense . no duty from LL to T that premises in tenantable condition i. today. implied doctrine of habitability 1.
can evict V. Joint Tenancy a. some courts dislike b/c $ does not compensate for emotional attachments to the land 3. preference at common law 2. alienable interest 1. When LL motive not retaliatory. modern practice c. P wants to develop land b. Favored at common law only when: 1. by kind (physical) a. if grant does not say anything. if do not have all unities then it’s a tenancy in common. interest – have equal interests in the land 4. possible for property to be physically divided 2. interests of owners better promoted ii. title. no survivorship rights c. not property right ii. do not need permission from other tenants to transfer 2. only one unity.each has undivided right to inhabit undivided premises f. can have unequal shares in land 1. D lives on land & owns garbage business. Tenancy in Common a. presume equal shares ii. would harm D if by sale since home & work ii. preferred at modern law b. reversed b/c facts insufficient to overcome preference of kind 1. 4 unities + right of survivorship 1. Partitions 1. physical partition impractical 2. physically divide the land into tracts b. right to survivorship is an expectancy interest.rights granted at same time 2. Delfine v.rights granted through same instrument 3. can not devise interest b/c goes to other joint tenants at death 1. possession (same as tenancy in common) iii.29 ii. Vealencis a. can be conveyed by deed or by will e. by sale a. Concurrent Estates 1. if one party does not want to sell then can use partitions i. Trial court ordered partition by sale i. time. equal rights to possession (unity of possession) i. can have different types of estates d. rights of survivorship i. Court orders sale and divides proceeds by interest b. not JT .
Riddle abandons this rule a. not actual. though preferred estate. 4 unities plus marriage (divorce terminates the estate) 1. then party trying to unilaterally sever destroys and comes into full ownership of the property c. if all unities not present then it’s a TC b. needs to expressly say that grantor granting a joint tenancy 1. Tenancy in Entirety (did we go over this) a. so can unilaterally sever JT without strawman 3. ensures transferability a. if it’s a jurisdiction that no longer requires. at common law. husband and wife had a JT b. other parties interest not effected ii. intermediary device used to change an estate from a JT to a TC so party could control interest without the right of survivorship ii. when a JT severs interest: i. need all 4 unities 2. it was hard to grant a JT at common law: 1.B. shared joint tenancy in life estate with contingent (indestructible) remainders d. at common law. wife unilaterally severed JT to self w/out intermediary device i. presume that the 4 unities still required ii. this type of action usually done in secret so co-owner does not know that losing interest in survivorship ii. strawmen i. Riddle v. TC created 2. other party needs notice i. if unknowledgeable party does not know and dies first. filing it is enough iv. but JT changes into a TC 1. required at common law b/c grantor and grantee could not be the same person b/c of livery of seisin iii. in modern law i. when sever to self and another. do not need ‘with rights of survivorship. C in JT creates: a. preferred estate at common law i. and prop interest owner can devise/descend interest c. just needs to file the transaction b.’ if needed. Michigan. creditors can reach estate when alive. presume that 4 unities present ii. not by devise b. could not sever into a JT to yourself 3. so if interest QCD to grantee. has to be transferred intervivos. .30 iv. Harmon a. then not a JT iii. information will be provided to us 2. pay taxes at death b.grant to A.
example. co-owner on the property that is affirmatively or allowing others commit acts that diminish economic value of the property or changing identity i. Endo 1. ** in absence of agreement. not keep him out d. Spiller v. because has actual legal possession 3. can try to go for constructive ousting 1. Sawada v. very difficult to prove 2. under common law and modern law leaseholds do not sever a. D had tenancy in entirety set aside to sons. gave women some rights to property and to keep own earnings d. court said no evidence that P did not allow M to use enter the property c. under modern law. neither has power to partition without consent of other 3. in a tenancy in common . co-owner still has reversionary interest in the land 3. Married Women’s Property Act 1. waste 1. found this type of estate not subject to claims by creditors 3. locks were to protect belongings. same analysis as with life estate and future interests b. PP in favor of protecting family assets over debt collectors 4. need situation where first co-owner notified second co-owner of assertion of co-ownership and starting transition from being there with permission to being there without permission ii. ousting 1. successful ousting severs the JT c. likely that in order to get sole possession. leaseholds do not sever the joint tenancy i.certified letter with signed receipt. Issues with Co-Ownership a. in order for SOL to begin running: i. will have to pay 5. no requirement that a legal owner needs to be in physical possession i. one co-tenant is not liable to another co-tenant for use and enjoyment of the property ii. husband and wife treated as one person under the husband’s control 2. P claimed that D owed damages and fraudulently conveyed property to sons so did not have to pay 2. do not go there unless pretty clear that absent a message ousting occurred 4. Mackereth a. leases 1. exist today in fewer than half the states) c. throw out furniture iii. one of the tenants in common used as warehouse b. when one owner trying to claim sole ownership 2. calls lease: estate for years 2. co-owner needs actual notice of ousting 1.31 1.
if grantor dies during lease. Harms v. pretend that shooter died before murdered so estate passes as though the killed survived the shooter iv. Swatzbaugh v. simultaneous death a. if grantor dies. say that A died before B and B died before A d.32 i. other party has right to survivorship to the property 3. title theory – borrower gives title to lender and gets back when paid off i. JT severed when mortgaged interest 2. Virginia example 1. lessee has lease for as long as grantor alive ii. slayer statutes a. Responsibilities to Co-Owners i. the other JT get rights of survivorship and lease ends iii. now idea that mortgage does not sever unity of title ii. Sampson a. lien theory . all have equal right to possession . when one co-owner grants lease. if not leases. what severs JT? i. in TC and JT. problem when JT take out mortgage together and one JT takes out loan on the mortgage without the other person i. Sprague 1. others can not cancel the lease or recover exclusive possession of that land 5. other co-owner or grantor’s heirs have to deal with the lease when grantor dies 4. general rule that when a co-owner is in exclusive possession of concurrently owned property. ousting iii. b/c of rights of survivorship. so if loan out on mortgage. mortgage lien on property did not survive death so plaintiff was able to succeed on quiet title action against lenders through right of survivorship e. in a joint tenancy i. banks prevent this by title search & requiring both signatures so can collect on the loan i. transfers ii. surviving party has the right to the property if party dies without paying off the loan a. valid lease for portion of JT b/c interest not infringed on b. early cases followed this theory ii. do not know who died first b. A and B both died in accident. mortgages 1. the co-owner in possession does not need to pay a proportionate share of the rental value a.legal claim of one person upon the property of another person to secure the payment of a debt or the satisfaction of an obligation i. lessee steps into shoes of co-owner for lease period ii.
whether adjoined or distinct . always ask this question first when determining affirmative or negative b.almost always adjoining a. but an interest in land a. so if sell or partition.look for clues & analyze c. land burdened is called servient estate d. who is dominant/servient tenant. what kind it is – affirmative/negative. at least able to recover the amount of share of property i.entitled to share of rent actually collected. in absence of an agreement. general rule i. implied. how terminated** 1. so entitled to compensation if paying too much iii. gets confusing with covenants.rights arising from a grant of a right by one landowner to another ** not an estate in land. general rule that need agreement or permission to get money VI. affirmative i. recognizes more than these 4 types of negative easements b. either appurtenant or gross i. air. appurtenant. land benefited is called dominant estate c. could be entitled to improved value b. came from English rules b/c: 1. negative i. not at fair market value ii. courts prefer this grant i.e ovenant/servitude/license/estate). interests of improver taken into account without harming other owners iii. an easement appurtenant to one portion of land may not be extended by the owner of the dominant estate. conceptual difference b/w covenants and easements iii. each one has to pay taxes and mortgage (if joint) ii.33 b. i. if third party rent. servient tenant prevented from doing something on own land ii. prescription. right to go on land of another and do some act on the land ii. look to words of limitation e. when beyond repairs i. easement. American law a. if paying more than share. taxes a. reserved. limited in kinds to light. tenant in possession is not entitled to contribution for necessary repairs b. can not gain by prescription ii. appurtenant/gross. how it was created – grant. improvements and repairs a. easement benefits its owner in the use of another tract of land b. no system of recording record titles 2. when ambiguous. Easements and Servitudes ** on exam: discuss whether easement (or something else. support & water iii.
could be irrevocable for a purpose. though many in our readings are ii. licenses i. make substantial improvements so estopped from saying that it was revocable b. bought more property to build home and wanted to extend access on road to property for purposes of nondominant land.34 ii. IN WRITING. but transferable ii. usually burden the dominant tenement (unless terminated) iii. license + interest i. or until need for it disappears 2. d. estoppel i. gives the right to use the servient land there is no dominant estate benefits the owner personally. can be revoked b. duration i. non-assignable. Voss. How are easements created? a. not a tract of land b/c does not benefit owner in use and enjoyment of his land is assignable when it is a business purpose a. only irrevocable when: a.reserve the right to take your seat away i. licenses are purely a contract a. c. can limit for years. so need to be in writing ii. e. Cox cable can assign easement in gross b. b. off the land) b. tickets. such as a particular interest (left binoculars at stadium) e. if says easement appurtenant. “the right to use land to Jim and his heirs” . then you know it’s that 2.Court here used the general rule but said that because there was not an undue burden from use of the land then it was okay -follows rule but does not grant a remedy ii. Brown v. licenses don’t need to be in writing f. preferred if ambiguous b/c revocable a.Voss owned land and Brown had easement. by grant i. gives permission to go on land that would otherwise be a trespass ii. words of limitation by grant by servient tenement A. easiest. MISUSE of EASEMENT a. easements need to satisfy the Statute of Frauds i. or life. in gross a. thus. take profit (example: trees. look at language 1. WOLF will not use “to A and his heirs and ASSIGNS” B. not controversial ii. Not alienable in England under common law d. not necessarily perpetual.
conveyance/severance causes landlocked parcel and at the time the split was made. Othen v. only need to negate one element 2. grantor severs a piece of land into 2 estates. implied by prior use a. if there was a break in permission then could start SOL ii.sale/devise ii. there was once unity by Hill ii. Court finds not an easement by prescription i. implied by necessity a. not exclusive use 1. reasonably necessary (elastic sense. not in writing ii. remember “and his heirs” is not an estate b. 2 kinds. look to see if dominant owner paid MORE b/c of a right so if value of the property increased b/c of a right D. strictly necessary. Hill originally owned both properties B. implied i. Court finds not an easement by necessity i. need to satisfy same elements as AP but acquire right to use c. prescription **use SOL for adverse possession if no SOL for prescription i. either to himself and someone else or 2 new and separate owners i. only can acquired affirmative easements NOT negative easements iv.BOTH require unity of ownership of the dominant and servient estate by a common owner 1. BUT not strictly necessary b/c there were other ways off the property and could not show that this road was needed and used by Hill at the time the land was severed D. not hostile to Rosier’s use iii. can have alternative method but . different than adverse possession b/c that acquires title/ESTATE iii. was open and notorious though iv. not just convenience ii. adverse user of the property ii. involuntarily. Rosier A. apparent c. voluntarily. idea that grantor must have intended for an easement b. Othen using road across Rosier’s property that a levee makes the road not usable by Othen C.35 C. the common owner was using the land in such a way as to require the easement i. permanent b.partition/foreclosure c.
it is NOT an easement when owned by original owner b/c can not have an easement in your own land i.use title v. still the majority rule today ii. so you reserve a RIGHT and except TITLE c. reservation. government can take private property for public use as an easement ii. allow third party to pay for the easement before sale from grantor or pay grantee for the right of way. must compensate land owner .preexisting right grantor keeps iii. reservation i. typically include land sale with grant “to my heirs for the right of away across the land” d. if TC zero.36 d. Church. called quasi-dominant tenement b/c can not have easement in own land but used the now servient land in such a way when they were combined f. already have the property and want to keep it for some use b. example.create new right b. but reserves easement of a right of way across B’s land to get to the ocean. reserve the right to use the property in some way a. CASEBOOK a. sells to B. under common law and majority today: A. keep rule b/c harder to burden purchaser e. today. Wolf likes b/c encourages alienability since an easement can be a restriction on land decreasing value iii. doesn’t matter if allow the easement or not b/c the more productive user will pay for it. right distinction a. still need unity of estates by common owner when severed e. eminent domain i. lets the seller create an easement by reservation for the Church to use the parking lot when Church is not a party to the original agreement i. c. b. takes grantor’s intent into account b. etc. best way to make distinction is to think of as a way to keep title: I’m going to sell you land except for this one piece. ii.here if Rosier awarded then O will pay R to use then R some amount b/w R’s cost and O’s benefit.does not follow common law rule a. Willard v.A owns land. whether except or reserve before or after doesn’t matter ii. ambiguous. applying Coase theorem i. and if O awarded then will use the land d. exception a. WOLF. exception. predominant rule is that terms are irrelevant i. common law rule could not create reservation in third party i.
like abandonment b/c if dominant owner had tried to look then can say abandoned v. will try to negotiate first a. covenant prevails . interplay b/w zoning and servitudes A. perpetual in duration and transferable i. can satisfy all elements of AP and SOL iv. another kind of easement is a conservation easements i. does not need to go on forever b. converting golf courses into other uses & need permission ii. usually need consideration c. hard to prove ii. many states have codified this b. created by statute a. look at language. no easement b/c can’t have an easement in own land e. ZONING—generally does not terminate an easement i. look at statute to see what authorized to do b. courts deferential to lawmakers public use definitions f. expiration. preserve historic areas i. owner should be compensated if take land w/ covenant also iii. abandonment i. servient owner can obtain easement back by prescription ii.37 a. if covenant less restrictive than ordinance. usually no conflict B. not subject to change of circumstances doctrine 3. usually can just use release or prescription to show same thing iii. need intent AND actions d. not only for business purposes c.dominant and servient estates are united i. but remember that the dominant owner would still need notice g. covenants do not supersede ordinances. a license is revocable b/c a K. can block the right of way for example iii. if ordinance is less restrictive than covenant. generally for agricultural land uses. government does not need to pay if take a license a. merger. in symposium. more in the nature of a covenant since negative.dominant releases to servient. gov’t likely has immunity from K so if only a license then does not need to pay compensation v. last resort to use eminent domain. equitable principle f. in gross ii. circumstances and purpose iv. detrimental reliance of servient on dominant such that the easement is no longer in existence. ordinance prevails C. release. How are easements terminated? a.ends. but its not imposed by neighbors d. not subject to horizontal privity e. prescription i. estoppel i. could be hard to tell if easement or fee a. condemnation (like eminent domain above) h.
both sides likely making promises c. whether affirmative or negative they run with the land) B. real covenant law is a combination of property and contract law i. know which side is benefit and which is burden i. easement appurtenants also run with the land (even if not mentioned in the grant. equitable servitudes. by grant: “I promise for myself. ii. running with the land means that somebody not a party to the original agreement can bring a suit d. intent – intent that contract will benefit and/or burden future landowners a. can be burden on land. 2. then it is just a personal covenant) A. 3. Three things that need to show for running of a covenant: 1. usually 3 situations where there is a lawsuit on the covenants 1. Non-party D wants to sue non-party C.if covenant was ‘in esse’ (in existence) at the time of an agreement then did not need to show intent. D wants to sue non-party B. TODAY. sues: Tee Tor A B A Jr. heirs and assigns that I will never …” b. deals with property value d. real covenants run with the land A. A wants to sue non-party C. 2. heirs and assigns not to paint the house orange. at the time of breach. paints the house orange. adds value to the LAND.A and B make promises for self. burdens and benefits Coventee/Promise Coventor/Promisor A B D C Benefits Burden i.modern courts will find intent if there is an agreement unless the grant says only for personal use. example. profits & licenses a.38 4. real covenants. at time of grant. value added to grantees land and decreased value to grantors b. Real Covenants -remember servitudes include: easements. touch and concern – usually in terms of value to the land a. A dies and A Jr. and only personal benefit to owner . If B changes mind and decides to paint orange and A Jr. not just to the owner c. if not in esse then needed to show intent through language of grant b. This is a burdens running case: Tee Tor B A A Jr. e. burden by someone who is not an original party (it’s not a ‘running’ case if only have original parties. England.
grantor-grantee (fee. authority that an AP can enforce the benefit . if privity exist keep going & talk about vertical. covenant to pay money usually not enough i. always need covenant at the same time b.39 e. under common law this wasn’t horizontal privity 1. landlord-tenant 2. covenant to pay runs with the land 3. tenurial 2. or previous existing property relationship iv. can be an estate of a lesser quantum iii. etc C. Massachusetts (now Nevada) 1. Massachusetts simultaneous 3. created equitable servitude 3. vertical privity c. FSA-FSA 1. conveyance of land with covenant also. no privity in Tulk b/c FSA conveyance didn’t count then A. exception: Neponsit case a. finds payment to housing association touches and concerns in form if not in substance b.need horizontal and vertical i. horizontal – i. easement appurtenant. so Tulk v. not sub-lease d. relationship b/w the original parties OTHER than the covenant with each other? ii. majority of modern jurisdictions 1. need property relationship iii. NOT okay if FSA to LE. and burden running with the land so enforced in equity E. life estate) D. burdens case.need vertical only i. Moxhay 1. notion that promisor’s assignee had notice of the agreement. simultaneous interest 2. intent & touch & concern a. estate for years for assignment. though today has horizontal. didn’t then 2. lax standard ii. doesn’t matter if not entire fee but needs to be the same kind of estate B. reversionary-life tenant B. then analysis over. privity ** start w/ this b/c if a burdens case & no horizontal privity.looking for DT-ST C. need estate of the same duration to successor A. LL-T. benefits case.
benefits and burdens case. on benefits side.need horizontal and vertical e. relaxed requirement 2. unlike LL-T where the original tenant is still liable to the LL for unpaid rent when there is an assignment or sub-lease. however this is an exception and besides rent usually affirmative covenants as promises to pay in these situations would not be enforced g. touch and concern and privity 1. if anything did each side agree to do or refrain from doing? 3. but ii. What was the subject matter of the agreement (that is. At the time the original parties entered into the agreement that is the subject of the dispute.NOTICE. what OTHER relationship. or are they the same people? 5. Six things to ask once you think you have a covenant? 1. Law courts can award an injunction 1. easier to do b. did the original parties on one side of the agreement have with the original parties on the other side of the agreement? 6. not form a. SO WHAT and award nominal damages to recognize the breach iii. touch and concern met in substance.no restriction shall be . 2 issues: 1. what. if suit brought in a law court b/c covenant breached. equity courts can not award damages 2. Massachusetts. originated in Tulk (b/c no horizontal privity at that time) a. touch and concern 1. Who were the original parties to the agreement that is the subject of the dispute before the court? 2. Court can look at it and say: i. intent. NY court makes an exception for bank to be required to pay property owner’s association fees i. IN ADDITION TO the fact that they were a party to the agreement. T/C and both privity. today most covenants enforced in equity and not at law A.40 a. association as agents for all owners and successors so found vertical privity in fee a. equitable servitude. the original promisee is off the hook after transferred land interest e. Who is/are the plaintiff(s) and who is/are the defendant(s)? 4. Also prevents the injunction b/w damages preferred iv. there was intent. unless statute allows it a. What is the relationship b/w the original parties to the agreements and the plaintiff(s)/defendant(s). covenant. Neponsit case a.remember intent. Did the court enforce the agreement? Why or why not? f. if any.
before Tulk i. courts began to balance the equities 1. only if damages at law were not adequate.41 enforced or enforceable unless its determined that restriction is. and if so will only award damages if conditions such as changes in character of properties. the Court will reward the injunction a. etc. when brought to equity court. common scheme no long subject to restriction. under a covenant. at the time of the proceeding. court asked to give injunctive iii. Western Land v. Residential restrictive covenant and still benefited owners so though land around had changed it was no so great to make inequitable . West i. helped the plaintiff w/equitable servitudes 3. hurt plaintiff b/c would ONLY enforce if plaintiff receiving some benefit from the servitude that outweighed the harm to the defendant a. of actual or substantial benefit to a person claiming enforcement rights. relief since could not award damages in equity court iv. DO damages/covenant analysis first and see what the question is asking for – (clue that it’s a covenant and not a servitude. BUT if party benefits and unless there is a substantial changed in circumstances. Truskolaski i. court will not look to a change in circumstances b/c viewed as a contract 2. Court will not balance equities when the defendant did nothing but rely on the covenant b.Wolf could ask if it’s a covenant/equitable servitude or both) b. conduct of persons from time to time make it inequitable. 3. Rick v. if says condition has changed in such a way as to shift the equities than the court will award it 4. then court could order injunctive relief ii.
Kraemer a. Did not do covenant/equity analysis though there was not actual. court will imply a restrictive covenant into your land if others from the common landowner have the agreement 5. actual i. record or personal b/c someone told you b. record i. Someone wants to put up gas station. allow implied reciprocal negative easements 1. own land did not have residential covenant iii. McLean i. 53/91 had covenants ii. Even if the council changed the zoning to a commercial area. Bad for alienation b. Shelley v. Answered constitutional question and civil procedure question instead . nothing in landowner’s agreement but it all comes down to notice a. WOLF DOES NOT LIKE a. constructive/actual notice ii. Court can not enforce b/c would be state action and violate EP if court used to enforce racial agreements b. Record a general plat w/ purpose i. Court enforces by saying inquiry notice and should look to see if neighbors have covenants on their lands 2. inquiry 4. BUT does not do this often b/c of marketing reasons 3. OR c. common landowner a. notice is everything & floodgates open vi.42 ii. it is not persuasive to outplace the private-property restrictions v. in the deed but didn’t read c. will not enforce racially restrictive covenants 1. constructive/record or inquiry notice c. Also common owner should put covenant in each deed. Sanborn v.
owners made grant to use land for a golf course but no colored people could use the land referred to as a restriction b. LOOKS like a covenant but: i. party seeking enforcement is seeking injunctive relief . SHOWS NOTICE IS THE MAIN FACTOR a. Covenant (damages) iii. limitation (auto reverts) d. or ii. did this b/c did not have the enforce a restrictive covenant based on race if viewed it as breached if colored people used the course 2. goes against condition subsequent preference i. condition (power to re-enter) ii. Court interpreted as a fee simple determinable so land automatically went back to landowners c. covenant enforced in equity but an element missing for it to run at land. HOWEVER.43 2. North Carolina golf course case a.