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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
Compare answer to statutory period 4. disability needs to exist at time cause of actions accrues to help owner a. distinction b/w property in public use and private 2. infancy ii. Subject year cause of action accrued 3. How to determine if statute of limitations passed and title passed to AP: i. imprisonment (not everywhere. NO SYMMETRY b/c government can acquire land by AP 1. soldiers and sailors ii.16 . tolling and tacking i. infancy removed by reaching majority or death b. BUT. contractual or blood relationship from A to B. married woman v. blood. private property usually type subject to AP not public b. b. Take year ownership sought 2. can acquire property via foreclosure a. 19th Century i. 21 century – left with: i. check months to make sure statutory period met 5. contrary to general rule of AP b/c usually need to do something special (i. tacking for benefit of adverse possessor 1. spouse to succeeded spouse. tolling for benefit of owner 1. disabilities removed: a. ancestor to heir. need to check for disability g. insanity removed by cure/better/death c. second possessor must meet all elements of AP c. Fla. don’t care about subsequent disability whether true owner or heir has one – even if ONE minute after action accrued then considered subsequent ii.e. tacking must be in privity a. permitted with respect to conveyance and adjacent lands h. check statute) 2. Disabilities a.5 v. etc. 95. Wolf’s Anal Retentive Method 1 1. AP in Florida i. i. etc. protects record owner b. imprisonment st b. AP has title -if equal. like Ohio. imprisonment removed by release or death statute starts running when disability removed 3. legal infancy iii. insanity iv. If answer greater than statutory period. death. only do disability analysis if statute has passed c. insanity iii.contract. oust true owner) but here government does not need to f. Stat.
majority approach uses adverse possession with personal property a.personal when dealing w/slaves/chattel b. borrow & don’t give back 3.wrongful detention of goods.18 1. Stat. NJ court uses discovery rule: so long as owner duly diligent in looking for lost property. statute of limitations doe not begin to run until owner knows or should know of location of property a. continuous. mutual bailment. fraudulent concealment. O’Keefe v. continuous.defendant conceals property a. open. substantial enclosure ii. If find due diligence. detenue. statute runs and loses property in AP 3. Looks to conduct of owner b. not making productive use (besides selling really and then not owner) 2. borrowers who don’t have higher obligation than those who pay 4. open and notorious harder 3. payment of taxes for first year of occupation i. color of title 2. Adverse Possession and Personal Property i. Fla. use land in usual way 4. hostile.action to recover damages from something unlawfully taken a. Objective and subjective test c. trover. statute of limitations does not start to run until owner knew or should have known of location e. If owner not due diligent. Actions under personal property recovery: 1. actual. can not apply principles from real property to personal property against owner 1. without color of title 2.not using in a way adverse to real owner 5. still use notions of AP in personal ii. though many elements hard to apply. hostile possession 3.6 1. Definition of due diligence depends on nature & quality of property d. 95. NY rule encourages buyers to look into title before buying 2. like rent iii. easy to see leap from real . Coase Theorum i. continued possession for 7 years 3.pay to borrow. 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 . not meeting elements of AP where AP applies b. rules do not make sense when property not tied to land (O’Keefe) c. Snyder: 1. replevin. give back after certain time. if P not due diligent and D fraudulently conceals then statute of limitations starts running as soon as property missing so D wins j. using property according to nature and quality of property? 6.recover personal property unlawfully taken 2.this one is easier than real property 4.what constitutes continuous? 7. for 7 years with enclosure or cultivation 4. exclusive.
farmer loses $50 from railroad’s use. efficiency is not justice or fairness a. provide knight service. If court rules that sparks are a nuisance. later king took money ii. Economic. farmer uses land. Trying to create social equilbrium c. Unfree tenures. Estates 1.demesnes i. vi. first set of tenant-in-chief did not get life estate in exchange for services iv. Needs i.mesne lords. B knows A using land. O’Keefe case: If Court finds due diligence than O’Keefe keeps. iii. Pareto optimal/improvement. this way had military service and other needs met iii. Military 1. v. Where do property rights come from? a.A uses Bs cave for tours. owed services to above in hierarchy 1. If court assigns B 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. Some political connections but mostly a conquest b. principle same but outcome reversed iv. Norman Conquest a.Socage iii. chief held land in agreement to provide services ii. most important 2.Serveantry c. Just like with torts. Posner adds idea that efficiency promoted by giving right to optimal user 1. negotiate with lord and servants to get what they both needed . Real world flawed and has transaction costs. if values reversed. Religious. A will pay B to use cave.Frankelmoign iv. Marengo cave. If court finds AP and not due diligence. then farmer gets injunction and RR has to stop sparks. hierarchy developed: king-tenant in chief. Railroad and farmer example: RR benefits $100 from use.no such real thing as reasonably prudent person. Coase theorem works in perfect world i. if court assigns right to RR then RR pays farmer to move. Feudal times b. a totally honest person entering a contract or a criminal who weighs cost of punishment against committing a crime III. contracts and criminal. If court says not an injunction.7 ii. 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 right goes to Snyder but O’Keefe will buy back.Subsistence.make self better off but not make anyone else worse off in the process = perfect world b. If court assigns A the right. A keeps using cave. If court assigns right to RR then RR uses and farmer moves. Either way RR uses and farmer moves. Modern critics who want to leave feudal past come back to same notions 2.
tenant died. originally did not include collateral/ancestors b. spouses. lower lords b/c could alienate w/out permission d. aids a. wardship.heir has to pay tax to keep land a.heirs include lineal. statute quia emptores prohibited subinfeudation 3. can negotiate better deal with new servant 4. change property to someone else b. upper lords b/c could get land back ii. forfeiture a. today. later down to 3 instances: i. ancestors. allowed alienability to transfer . substitution a. wardship and marriage a. avoided feudal incidents: 1. later illegal b. less rungs so if incident property to tenant in chief c. ransom from captors 3. feudalism declined 1. primogeniture system governed inheritance ii. relief.male and single owner i. subinfeudation a. 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. ceremony where servant would vow loyalty to lord above 2. land returned to lord b.lord can marry heir to his choice husband 5. primogeniture system. first daughter marries. goes every direction that unusual for person to die without heirs i. lord gets land back b. feudal incidents (think of as taxes) 1. with permission. adding new tenant to bottom of ladder c. escheat and forfeiture eliminate needed for mesne lords 2. marriage. escheat a. formed by Quia Emptores 2. limited definition of heirs leads to greater possibility of escheat --incidents become more important than feudal services vi. today land returns to state 6. favored method by i. tenant died without heirs. issue. incidents went to rung directly above so if land forfeited or escheat went to mesne and not tenant-in-chief vii. first son knighted.benefits of land until kid reaches majority b.8 v. pay king when needed. do not provide services. even if someone closer in kinship to deceased. collaterals. homage and fieldy a.
then has reversion interest (i. if owner conveys something less than a fee simple absolute. issue did not include 1. Emptores. defeasible a. created by De Donis a. could endure forever a. fee simple determinate b. Purchase: WHO gets land. land passes to heirs of first taker i. stillborns a. Fee simple 1. Male iii. “to A and the heirs of her body” a. don’t need to say “and his heirs. modern approach is to give what you had 3. Types of Estates in Land 1700 cut off point for our class: Post De-Donis. O to A for life. keep land in family i. then O has reversion interest in fee simple) i. if conveyance creates future interest in a grantee following a fee tail. A got a life estate (think lord giving to tenant for life only) b. adopted 3. at common law. Special (heirs of Mary’s body) 3. heirs get fee simple c. Language indicates entailment in: i. possibility that fee simple is infinite. first taker gets life estate. alienable.e. no future interest after fee simple absolute b. Limitation: duration/type of estate 2. Words of Purchase and Words of Limitation i. descendable and devisable 4. identify person who estate is created ii. Whiton. Statute of Wills a. only refer to fee simple absolute when present and future interests are in the same person at the same time 6. Johnson v. grantor has reversion on expiration of fee tail a. fee simple conditional c.no new estates. substitution more economic than feudal 3. “to A and his heirs” a. land could not be alienated 2.9 a. if did not use this language. Fee tail 1. when make a grant in fee simple.” assume that unless says otherwise 5. illegitimates b. conveyance has to fit in with language i. cries ‘to 4 walls’ then alive 2. General ii. fee simple executive interest ii. future interest is a remainder .
fee simple absolute but something followscondition that A has surviving issue. first life is a fee tail and issue that survive get FSA i. doesn’t matter what follows 2.14 No property. only expirable estates could be followed by a future interest in a grantee 2. easy practice to do through recovery/deed during life c. express or implied. then it shall vest in any other remaindermen designated in such instrument. grantee gets Ohio fee tail per autra vie iii. Stat. then it shall revert to the original donor or to her or his heirs. § 689. If A does not have surviving issue then B has rights 6. real or personal.has its own rules: Fla. grantor has reversion.10 b. 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. if first taker tries to alienate fee tail. whatever surviving issue share FSA ii.fee simple absolute. Massachusetts. If the remainder fails for want of such remainderman. if there is no such designation. grantors reversion interests can be split among issue. can not alienate fee tail through will b. grantor gets reversion interest 7. or. creates fee simple and cuts off any reversion interests 5. future interest must not take effect before expiration of preceding estate -can not cut short life estate 4. Maine & Rhode Island have fee tail a. 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. Fee Tail in Ohio a. Ann. future interest created must be capable of taking effect immediately upon expiration of the preceding estate 3. as well as fee simple can be split among issue if more than one surviving at time of death . goes from owner to original conveyor (if even for a second) to heir c.creates fee simple 1. Three rules for future interests (fee tail and life estates) 1. first taker gets life estate. fee has to go somewhere. shall be entailed in this state. Any instrument purporting to create an estate tail. a. Category (2). Category (1). Florida. if no issue at time of first taker’s death. Most jurisdictions today have abolished fee tail. Delaware. then B loses rights. at common law. issue get remainder in fee simple per stirpes b. issues must survive first taker i.
O has reversion interest and B gets fee simple. Grantor retains reversion that comes into play when life estate expires or condition broken c. issue of child gets fee simple absolute whether or not child survives ancestor f. Determinable i. child alive at time of grant not enough c. grantor lost interest and child’s issue inherits g. Life estate for the life of another ii. life estate + reversion interest = FSA to grantor (merger) 2.ends at end of measuring life i. life estate presumed unless said otherwise i. usually measured by life of conveyee e. 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)) . comes from feudal period b.11 b. once child born. so needs to be alive at time of death in order to gain interest. Fee Tail in Illinois a. life estates are always followed by future interest d. Life estate 1. let’s say B. if life estate holder dies. back to state? iii. exists in modified form in Iowa and South Carolina. O to A and heirs of his body meant that so long as A had heirs. “to A for life” a. Per autravie i. not grantor d. Illinois calls first taker life estate like Florida 8. If A does not have issue. person who grants to child once born has a life estate e. reversion interest subject to defeasance d. A to B.issue MUST survive owner. not an estate of inheritance. Life estate so long as … ii. Can get one without it being granted as one 1. If no condition of survivorship: i.look to statutes to know how it works c. gives right to create fee simple for someone else. Fee Simple Conditional a. At common law a. grantor loses reversion interest to issue b. In Ohio and Florida. does not exist anymore b/c of De Donis that formed fee tail b. B to C for B’s life b. whoever claims land is called general occupant for life of conveyee i.
Decision. England.looked at context in whole and absolute interest favored -intent seemed to be more than life estate -attempt to restrain alienation disfavored i. disabling.land itself viewed as a commodity. equity courts have jurisdiction to order sale of land to prevent future interests and waste (Baker v. America i.she knew how to grant in FSA b/c did FSA with property so she intended a life estate here 4. need to figure out present value and future interests b.12 ii. Law of Waste a. emblements a. courts wrestle with life estate with remainder to future interests or fee simple absolute 3. if plant crops. White v. affirmative. if AP possessor injures property. use life expectancy and annuity tables. has to be necessary ii. permissive-negligence. injury by present interest / physical presence ii.withholds grantee’s power to transfer interests ii. perspectives in England v. enforceable by contract 4. follow modern rule 2. Dissent. modern law. fee simple absolute presumed unless said otherwise i. consider interests of all the parties iii. promissory. not AP c. Wheedon) i.voluntary acts that injure property value 1. if seriously impinge on financial rights of future interests then look for alternative to benefit all b. 5. and then reverts back to conveyor 3.grantee attempt to transfer forfeits rights in land iii. failure to take reasonable care of the property iii. modern law a. more so with wheat than apples . Valuation of Life Estate a.care about the bottom line 1. can take them off land b. forfeiture.conveyor gives whatever has during life to conveyee.grantee promises not to transfer interests. don’t want to change land character b/w generations ii. Brown 1. Types of Waste i. future interest holder can sue present owner for damages. Americans.
take wood off property for essential needs b. Problems -takes temporary view of property -could be premature conversion -environmentalists don’t like b/c ruin land. all land had to be seised ii. tenant responsible to owner for waste iii. for profit d. Seisin created or transferred in livery of seisin ceremony 2. If not open at time of entrance than can not extract. Pabst case a. sold dower to brewery company that demolished home & land for brewery b. Common Law . eminent domain changes character of property but just b/c get compensation of valued land in monetary value 4. In feudal times. 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. Leaseholds 1. co-owner in possession damages then other co-owner can bring a suit in waste iv. Responsible for feudal services i. Other Settings for Waste: i. etc. shows exception for waste b/c not penalized for changing character of the property 3. not allowed in England d. actually enhances value c. Co-owners 1. etc. if you work land. similar exception in open mines. Landlord tenant 1. estover a. amerliorative waste a. can keep growth d. 2. if mine open when come onto property can extract minerals. Freehold estates all had seisin a. In feudal times. changing character of the land b.13 c. all estates had seisin b. Life estate ii.
looked at intent of grantor’s who intended property used by school (definition of school use not resolved). prefers condition subsequent if ambiguous ii.14 a. then limitation 1. Still nonfreehold estate b. statute of limitations begins to run once O comes back 1. Fee simple determinable a. Nonfreehold estates b. Mahrenholz case. law prefers covenant. At 1700 a.son with possibility of reverter can inherit reversion if property not used for school then do with it what he wants iv. needs to take affirmative action ii. separate from real property c. chattel real a. absolute constraints on alienability abhorrent 1. Grantor retains fee simple absolute iv. Did not use livery of seisin ceremony i.e. Defeasible Estates -need fee simple language. grantor retains possibility of reverter i. covenant. automatic expiration of estate based on a stated occurrence/nonoccurrence 1. Fee simple subject to condition subsequent a. damages in contracts iii. Grant from O to A for x # years 2. personal property.habendum clause to define the extent .broken promise. then move on 1. Estate for years 1. not real property b.language intended to create mandatory rather than permissive return. to A and his heirs + so long as ii. grantor retains power to terminate/right of entry i. “to A and his heirs” + qualifying language -make sure to go in order – i. give land to someone who may or will lose it based on condition b. then condition. grantor retained FSA b/c granting of real property separate d. Toscano case. ownership limited i. Estate in years grant creates i. though court has preference for condition subsequent. Present possessory life estate in grantee ii. if stays on land after considered trespass 2. grantee retains FS subject to condition subsequent c. law abhors forfeiture i. make sure it’s a fee simple first. also known as upon a special limitation b. grantee has personal property not any freehold estate 3.
reversion (everything else) a. can inherit c. remainders a. estate not does revert automatically. alienable. if defeasible fee condemned. if debtor can voluntarily transfer it. Other information on defeasible fees: a. all reversions are vested i. grantor retains nothing because interest in third party most executory interests violate Rule of Perpetuities 5. Future Interests in Grantor (reversionary interests) 1. alienable. its in someone else 4. subtle distinction but meaningful. but future interest to 3rd party. estate automatically reverts to grantor upon the occurrence of the state event 3. can inherit c. then the creditor can reach it . indefeasible a. can be subject to complete defeasance ii. common law i. not power of entry b. descendable and devisable 1. grantor must exercise his right of entry vi. estate automatically returns to the grantor 2.15 of the issues granted 2. creditors can reach any alienable interest debtor has 2. Fee simple subject to executory interest a. that’s okay but not a total limit 3. Fee simple with executory interest a. vested i. c/l favors marriage. common law i. descendable and devisable b. fee simple subject to condition subsequent b. looks like fee simple determinable but instead of future interest in the grantor. present owner takes damages v. power to terminate/right of entry a. when grantor gets interest back for sure c. can not alienate or devise possibility of reverter ii. can not alienate or devise possibility of reverter ii. construe land use restraints acceptable but not land Alienation i. possibility of reverter a. fee simple subject determinable b. language similar to condition subsequent. courts do consider context so if may hamper alienation. Future Interests in Grantee 1.will enforce clauses that provide support until marriage but not those that penalize remarriage b.
class closes at end of measuring life (or parent of issue) i. examples include unborn children and heirs . ascertainable person and no condition precedent besides the natural ending of the preceding estate iv. life estate b. contingent i. starts at 100% vested remainder subject to partial divestment 2. fee tail c.16 ii. types of vested remainders: 1. reduced in equal shares to new addition a. possible for interest to take effect right away b. law favors vested over contingent b. how do you know you have a vested remainder? 1. the grantee’s interest adjusts 1. vested subject to complete divestment a. no mandatory gap in grant a. if issue born after class closed. rule of convenience ii. interest waits patiently. preference for vested remainders 1. closed when not possible for others to enter the class iv. unascertainable person to subject to condition precedent ii. if have remainder and could lose it v. grantee are members of a class b. as each issue is born. window open for possible current pregnancies (9 month until closes) iii. does not cut off other interest 3. vested subject to open/subject to partial divestment a. if ambiguous. A and B each have a 50% vested remainder subject to open 3. certain to acquire the interest and will be entitled to the interest permanently 2. new issue does not have an interest 3. follow a valid particular estate a. if mandatory gap in seisin not a remainder iii. estate for years 2. indefeasibly vested a.
alienability iii. i.17 iii. fee simple with an executory limitation. life estate or remainder both equitable then becomes fee simple or fee tail b. fee simple subject to condition subsequent. know what’s interests are right away c. then they do not merge at that time to destroy remainders (says same thing as iii. then to B for life. Rule of Shelley’s Case 1. NO future interests in fee simple determinable. at common law. then to B for life. if interest does not vest at or before the termination of the preceding estate freehold. not for personal property e. If contingent remainder in between 2 interests then remainder not destroyed iii. If interest owner sells the interests to someone else. then destroyed 2. Rewrite a grant that says: O to A for life. so does not have power to have one but has power to grant this estate iv. abolished in great majority of jurisdictions . feudal tax evasion ii. doctrine of merger can apply c. contingent remainder destroyed and merger applies 1. then to A and A’s heirs. then to A’s heirs as O to A for life. one grant purports life estate or fee tail in one grantee and then fee simple or fee tail to heirs of first grantee a. rule of law that applies regardless of grantor’s intent d. above but easier to understand) v. does not exist in modern law except in Florida a. fee simple subject to executory limitation d. purposes for rule i. Becomes indefeasibly vested remainder in fee simple in A ii. subject to destructibility doctrine 1. if life estate and next vested estate are simultaneously created. REMAINDER TRICKS i. doctrine good b/c makes land alienable b.
Doctrine of Worthier Title 1. fee simple absolute ii. fee tail ii. children at time of devise 1. when ambiguous grant and possible to interpret as a contingent remainder or executory interest. future interest is void b. raises presumption that no remainder created ii. Rule in Wild’s Case 1. Purefoy 1. rule of law 3. no children at time of devise 1. real property only b. modern rule a. joint tenancy in life estate iii. personal as well as real b. common law a. inter vivos conveyance that purports to create a future interest in the heirs of the grantor a.18 ii. rebuttable presumption by grantor iii. springing. purpose of rule a. no children at time of devise 1. but not through this grant b. look for grant to someone’s children a. children at time of devise 1. property passed down as a reversion instead of a remainder 3.follows the necessary/mandatory gap and comes from the grantor . avoid feudal incidents b. both cases testator left with nothing 2. grantor has a reversion 2. common law i. indestructible i. Court prefers contingent remainder since destructible while executory interests are indestructible b. modern law i. goes to legatees. both cases testator left with indefeasibly vested remainder in fee simple 1. executory interests a. tenants in common in fee simple absolute iii. rule of constructions i.
19 c. smaller estate merges into larger interest and smaller ceases to exist as separate estate b. ask first if it springs? vii. then grant to . interest must vest or fail to vest within 21 years (+ gestation period) at time of grant a. present life estate and indefeasibly vested remainder in fee simple merge into FSA d. shifting. condition in grant not fulfilled iv. If any possibility that will remotely vest than the interest is VOID i. this method obsolete today ii. if want to extend the measuring lives as long as possible. life estate and contingent remainder not enough to merge into a FSA e. at common law. when analyzing a question. first taker refuses to take estate iv. MUST vest or fail to vest b.if does not fit description of springing then its shifting. Rule Against Perpetuities 1. if life estate and next vested estate are simultaneously created. any intermediate contingent remainders are destroyed 2. trying to create more than had 2. In grant. usually but does not always cut off preceding interest d. comes from grantee. any contingent remainders depending on grantor’s old estate failed b. repudiates and destroys estate and claims a new fee simple by disseisin that is transferred i. rose from tension b/w deadhand control and alienability 2. forfeitures a. Ways to lose interests in land: 1. felony iii. then they do not merge at that time to destroy remainders c. mergers a. a person forfeited his property by i. when life estate and vested remainder or reversion in fee come into the hands of the same person. tortuous conveyance 1.
not yet born widow 5. Measuring lives a. assume that people can have children at any age i. Reversion. cross out everything after the comma 3. as opposed to infectious invalidity 2. if can stick with grantor’s intent and only strike out invalid part then will iv. precocious toddler iii. if want to convey the interest to another party after the charity. Future interests in grantor i. charity to charity exception i. A to charity in fee simple determinable. female octogenarian ii. does not violate rule b/c will be within measuring lives of testator’s children 4. Start with names in grant b. testator: to my grandchildren than reach 21 i. Some lives in being not mentioned directly by the grantor but implied as lives in being i. RAP does not apply to a. then RAP voids iii. use 2 conveyances 1. possibility of reverter and power of termination c. does not violate RAP if granted from charity to charity ii.20 babies such that the interest must vest or fail within 21 years of baby’s life c. cross out the interest i. Look at punctuation as to what to cross out ii. courts invalidate grant though looks like grantor did not intend it a. common devises a. Present possessory estates b. does not violate rule . A has possibility of reverter 3. Baby in gestation is a life in being c. If void. usually will void only the last interest if the rest of grant is good 1. tell the story from the beginning and if possible that the interest will not vest then it is void d. At common law. O to A in fee simple absolute 2. if end of grant goes to someone other than charity.
RAP applies to a. responsible for other jurisdictions as fair game 6. then must vest or fail within 21 years and destroys problem. only one jurisdiction recognizes contingent remainder destructibility a. ALL future interests are alienable. If interest destroyed at CL. estate for years i. creates RAP problems since CR indestructible 2. think of as term for years ii. except interests limited to life b/c interest ends at death 5. lease automatically ends and LL not entitled to notice . 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. fit the kind of estate into one of the types i. now leaseholds are the fourth type of freehold estate 2. need to do RAP analysis on wills made before RAP done viii. this includes possibility of reverter & power of termination b. Modern rules for present and future interests 1. fee tail is a FSA a. Modern RAP a. Vested remainders subject to open 7. Any fixed or computable time 1. if don’t do it right it becomes a FSA and can alienate b. Landlord-Tenant Law 1. Executory interests b. leases were chattel-real as personal property i. numerous clausis a. can be as short as one day.look to information on test to see what applies 4. Types of Estates a. Many states have laws that got rid of this b. descendable and can be devised a. principle bolsters notion of free alienability 1. then treated like an executory interest c. Contingent remainders i. at common law. interest valid and reverts back iii. If contingent remainder indestructible (like in majority of modern jurisdictions). needs to list beginning and more importantly end date iii. jurisdictions split on what happens if something follows interest so look at information on exam IV.21 6. as long as 99 years 2. Rule in Shelley’s Case and Doctrine of Worthier Title = abolished 3. But unless retroactive. RAP mess.
notice rule discourages period to period tenancy vi. if year to year. at common law. here the LL’s executor had power to terminate and the tenant did not a. Need both parties to have power to terminate 1. at common law. in modern law. read the agreement to be a lease i. Gerrish 1. notice must include a. Garner v. required for the length of the tenancy 2. imply reciprocal power in other party and call it a tenancy at will ii. as an life tenancy determinable on tenant’s behalf treated as an estate for years determinable . Tenancy at will i. main difference b/w estate for years iii. at common law.000 per month on the first of each month 1. Lease for a period to period ii. insufficient notice waived the notice 3. treat as notice for June 30th v. Periodic tenancy i. if there is a statute. one month’s notice required a. Notice 1. notice = to length of period. either viewed as month to month or year to year with rent at installments of $2. not for expiration b. if one party dies than tenancy at will over iii. full period’s notice b. example: give notice on May 17th for a month to month i. could need notice for extension. modern law says to pretend notice sufficient for end date of the next full period a. or 2. disagreement for amount of notice a. automatically extended for another period unless notice given 2.000 payable $2. end date of termination 2. follow the state b. if language says: to T at an annual rental of $24. or ii.22 1. i.000 c. insufficient ii. need sufficient notice otherwise treated as none 1. establishes periodic tenancy 2. court found that a tenancy at will is not created when one party. any period of year to year is six months notice 3. notice is sufficient upon receipt. 6 months notice b/c longer than 6 month periods 4. if month to month. if only one party then not a tenancy at will and something like a tenancy. for 7 – 12 months. if no statute then say either. Fixed duration until LL or T gives notice of termination 1. not at time of sending iv. need six months notice b.
accepts month to month 3. Assignment .23 1. once LL treats as trespasser and refuses to extent month to month but fails to pursue remedy of ejecting. Tenant in privity of contract and estate with the landlord 1. start express or implied new lease -same terms as original lease a. no excuses for holding over b. periodic tenancy or tenancy at will 1. usually month to month for up to a year b. period determined by rent payment ii. evict with damages 2. Leases are property contracts i. LL can: 1. benefit to LL is do not treat holdover tenant as trespasser for AP purposes 1. common breach is when sub-leasor or assignee does not pay rent 2. so has to be something else d. Crechale case i. if LL does not treat as holdover then LL does run risk that could turn into AP iii. sole right to tenant to end when he chooses b. last approach is sue for double rent i. determinable b/c he could decide not to rent it iii. now tenant is holding over after the lease ends a. 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. not a tenancy at will. when tenant holds over. not life estate b/c could not alienate ii. Tenant had the right to be there in the first place from estate for years. Contract creates leasehold estate ii. at common law. Tenancy at sufferance i. 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. majority rule usually creates a periodic tenancy i. Assignments and Sub-leases a. leads to line drawing problem ii. other view is that holdover creates new lease to same period of time as original lease c. AP possibility b/c treating as a trespasser 1. 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 accept regular rent then create month to month d. Some cases draw de minimis line if does not affect LL.
LL can not sue T1 b/c of privity . T1 is personally liable to LL/has duty to pay rent 2. LL and T expect T to collect rent for entire period ii. LL. Secondary liability 1. K relationship is still there ii. Right to enter alone (at least in Florida) is still a sub-lease 1. New contract b/w T and LL that releases T from rental payments upon novation ii. LL has indefeasibly vested reversion in fee simple 3. LL can sue T1 a. the right of re-entry makes it a sub-lease iii. can sue T2 for the rent b. but only get one recovery 1. LL can sue T for rent the same as with assignees iv. LL and T have K relationship 1. T1 only responsible for rent when he had possession a. Sub-lease i. LL and T1 are in privity of estate a. Sublessee not personally liable to LL b. T knows that if assign then T1 has to pay c. T still liable to LL for rent though assigned i. Reassignment terminates privity with LL c. State of mind of original parties i. T has nothing b/c assigned rights to T1 5. B/C LL and T1 have privity property relationship. T and T1 have property interests 1. LL and T have a contractual relationship 1. T1 has PP estate for years 4. LL can go after T and T1. T1 has notice of original rental agreement b. under modern law. Forms privity of K & estate with T1 iii. Transfers the entirety/remainder of lease agreement ii. assignee had the right to occupy i. though not directly promised by T1 to LL. T1 has PP estate for years a.24 i. right to enter alone was an assignment under common law 2. any other promise that T made to LL were personal in nature and only require rental payments iv. Transfer all but even one day ii. LL and T1 have property interests 1. Not before and not if he reassigns i. LL has indefeasibly vested reversion in fee simple 2. But no privity b/w LL and T1 here i. T has vested reversion in estate for years 3. Exception is if there was novation i. real property relationships b/w LL and T1 ii. LL can sue T if T1 does not pay a. T and T1 have K relationship also 2.
this does not release T 2. financially responsible ii. objective test: reasonably prudent person a. Kendall v. general rule that assignment transferred the entire interest and left no reversionary interest i. assumes the covenants of the master lease so liability continues even though there is a further assignment of the leasehold d. there is a new K b/w LL and T1 a. court reads in ability for tenant to transfer interest c. using language is not conclusive. if lease silent about ability to transfer. signed new lease with LL b. default position is that land should be freely alienable a. Wolf.seems less logical to protect commercial tenants who have more negotiating power than residential i. if term requiring consent in the lease. tenant did not retain any interest after transfer 2. transferee remains liable to the LL as LL is beneficiary to the K c. statute provides LL can go after sub-leasor 3. tenant transferred to another party a. called it a sub-lease c. can withhold if there is a reasonable reason . some lower courts found in favor of LL based on this theory b. considerations: i. Ernst v. commercial settings only. different rules apply to residential a. Conditt 1. 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. suitability for building 3. older view that LL may arbitrarily refused to accept a new tenant ii.25 i. Pastana 1. start with this principle when analyzing b. making money off deal is not a reason 2. but persuasive ii. distinguishing b/w sub-lease and assignment i. it is narrowly construed by the courts to favor alienability i. Idea is that residential tenants can go elsewhere and not held to monopoly of LL 2. signed lease with new party. or change in common law based on third party beneficiary theory a. Unless 1. commercial landowners need to be reasonable 1.
in the 18th century. unless provision in the lease saying otherwise 2. court made law changed LL-T law i. does not apologize from the departure from the common law as it existed. LL were treated better that those similarly situation in contracts 1. Rule in Dumpor’s case 1. does not follow legal precedent 2. T can transfer ii. LL waives right to consent on future transfers. Punishes LL/person trying to restrain alienation b. Owner maintained a present possessory FSA d. no leases 3. LL gets guaranteed income from transaction. Once waived. LL can not refuse and then lease without the original T to make money. Justice Wright on the District of Columbia Court 1. T bears risk a. also protect through tort relationship 1. tenant’s had no rights i. not majority rule a. LL had more money at risk c. a. If value goes up and there is an interested party to sub-lease or assign. had FSA interest to protect b. Constraint in K requiring LL consent before transfer. T still had to pay rent a. Independent covenants were used 1. implied covenant (i. changes made to have leases that favored LL . During the 19th century. the covenant is destroyed c. still need to pay though could get better deal elsewhere b. Restatement rejects this rule i. if make one transfer and LL does not reinstate the provision. during the 20th century.26 4. LL could remove the T at anytime. covenants to do or not to do a physical act on the land runs with the leasehold 1. LL-T Revolution/Counter-Revolution a.e. quiet enjoyment) can be enforced against whoever is the LL at the time the covenant is breached 4. even during a valid leasehold a. Could use force or take personal belongings if needed iii. Lessee had a personal property interest in the land ii. 1960’s. Wolf likes b/c in favor of alienation iii. in 19th century. Purpose is to assure the LL that a responsible T is in control of land during the lease 2. LL was not liable to tenant b. presumption in favor of LL b/c: a. If value of rent goes down. if LL did not fulfill duty.
Tenant needs to vacate within a reasonable time f. Reste Realty v. LL must substantially interfere with T use and enjoyment 1. T has right of enjoyment of premises without interference by the LL d. LL has to have actual or constructive notice a. T released from rent (unless clause in lease requiring T to pay anyways) 4. first change through constructive eviction 1. it was illegal a. at time the LL and T entered into a lease. T must vacate to make this claim 3. T could collect (though unlikely) damages b. minor violations do not render illegal 4. Demonstrates leap in doctrine from impossibility to inconvenience b. illegal leases is another change 1. Right to constructive eviction i. some cases of constructive eviction a. measured objectively.27 a. LL could evict T for no reason a. LL could bring summary eviction proceeding against T for things such as not paying rent b. changes in 20th century b/c judges felt process unjust ii. does not apply if violations made after the lease was signed 3. If code prohibits renting of premises in violation of the code then LL can not enforce any covenant to pay iv. 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. Unless evicted by LL. rats. Demonstrates K relationship b/w LL-T c. what a reasonable person regards as incompatible with purposes that premises leased 2. must be some fault by LL iii. Brown v. Cooper a. no sewage. hard for T to get out of rent 3. Cooper accepted new lease when aware of flooding and possible continuous flood damage with caveat that the LL would fix the problem c. T not allowed any excuses b/c of independent covenants 4. Court views flooding as recurring and permanent problem e. Found that implied quiet enjoyment found in a lease i. the T could abandon and cease paying rent 2. in 19th century. Unsanitary and unsafe that violated housing code 2. fire caused by LL fault b. Southall Realty i. change from independent to dependent covenants .
Covenants are dependent. before action. See if claimed defect has effect on safety or health of the tenant 3. Interference with statutory right provided in housing code b/c undermines legislative policy c.Javins iii. Can not evict if motive is to retaliate for reporting code violations b. look to statutes on how to handle iv. LL will deliver and maintain through period of the tenancy. implied doctrine of habitability 1. LL made promises to fix numerous defects that never did and T made at own expense 2. Peter i. no duty from LL to T that premises in tenantable condition i. clean and fit for human habitation a. T can waive minor defects but against PP to permit T to waive anything making the premises unsanitary or unsafe b. Proof of retaliatory motive is on the tenant i. implied warranty of inhabitability a. NO retaliatory eviction 1. LL has duty when lease signed and continuing duty 2.28 1. today. can withhold rent for repairs 4. premises that are safe. Unless LL gave express warranty the T took the land as is b. breach does not even require that tenant abandon the premises (have to leave for constructive eviction) b. T can not be in default to assert this defense . First look to relevant housing code ii. LL did not correct defects ii. T must notify LL of breach 4. Under common law. Remedies now available to Tenant: a. put into escrow acct to show good faith 3. now: ii. To determine breach i. T can withhold rent 2. patent & latent defects b. LL needs reason other than turning in to housing codes to justify eviction a. St. Oral and written leases. Hilder v. counterrevolution that decreased LL rights 1. T did not pay rent.
When LL motive not retaliatory. physical partition impractical 2. can have unequal shares in land 1. presume equal shares ii. if one party does not want to sell then can use partitions i. interest – have equal interests in the land 4. not property right ii. time. by sale a. no survivorship rights c. can evict V.rights granted through same instrument 3. D lives on land & owns garbage business. Trial court ordered partition by sale i. preferred at modern law b. only one unity. Court orders sale and divides proceeds by interest b. Concurrent Estates 1. do not need permission from other tenants to transfer 2. modern practice c. Tenancy in Common a. can not devise interest b/c goes to other joint tenants at death 1. P wants to develop land b. Joint Tenancy a. by kind (physical) a. would harm D if by sale since home & work ii. physically divide the land into tracts b. some courts dislike b/c $ does not compensate for emotional attachments to the land 3.29 ii. interests of owners better promoted ii.rights granted at same time 2. can be conveyed by deed or by will e. right to survivorship is an expectancy interest. rights of survivorship i. Favored at common law only when: 1. reversed b/c facts insufficient to overcome preference of kind 1. can have different types of estates d. preference at common law 2. Vealencis a. Partitions 1. not JT . 4 unities + right of survivorship 1. if do not have all unities then it’s a tenancy in common.each has undivided right to inhabit undivided premises f. equal rights to possession (unity of possession) i. alienable interest 1. possession (same as tenancy in common) iii. possible for property to be physically divided 2. if grant does not say anything. title. Delfine v.
this type of action usually done in secret so co-owner does not know that losing interest in survivorship ii. C in JT creates: a. wife unilaterally severed JT to self w/out intermediary device i. TC created 2. other party needs notice i. in modern law i. Riddle v. needs to expressly say that grantor granting a joint tenancy 1. Harmon a. presume that 4 unities present ii. but JT changes into a TC 1. ensures transferability a. need all 4 unities 2.30 iv. it was hard to grant a JT at common law: 1. intermediary device used to change an estate from a JT to a TC so party could control interest without the right of survivorship ii. husband and wife had a JT b. do not need ‘with rights of survivorship.grant to A. though preferred estate. presume that the 4 unities still required ii. Michigan. information will be provided to us 2. not actual. not by devise b. so if interest QCD to grantee. and prop interest owner can devise/descend interest c. other parties interest not effected ii. at common law. creditors can reach estate when alive. preferred estate at common law i. . so can unilaterally sever JT without strawman 3. 4 unities plus marriage (divorce terminates the estate) 1. could not sever into a JT to yourself 3. filing it is enough iv. when a JT severs interest: i.’ if needed. strawmen i. required at common law b/c grantor and grantee could not be the same person b/c of livery of seisin iii. then not a JT iii. pay taxes at death b. if all unities not present then it’s a TC b. when sever to self and another.B. has to be transferred intervivos. then party trying to unilaterally sever destroys and comes into full ownership of the property c. shared joint tenancy in life estate with contingent (indestructible) remainders d. at common law. if it’s a jurisdiction that no longer requires. Tenancy in Entirety (did we go over this) a. if unknowledgeable party does not know and dies first. Riddle abandons this rule a. just needs to file the transaction b.
under modern law. Endo 1. neither has power to partition without consent of other 3. co-owner on the property that is affirmatively or allowing others commit acts that diminish economic value of the property or changing identity i. Sawada v. Issues with Co-Ownership a. example. when one owner trying to claim sole ownership 2. locks were to protect belongings. one of the tenants in common used as warehouse b. husband and wife treated as one person under the husband’s control 2. Married Women’s Property Act 1. co-owner needs actual notice of ousting 1. found this type of estate not subject to claims by creditors 3. in a tenancy in common . leases 1. same analysis as with life estate and future interests b. Spiller v. P claimed that D owed damages and fraudulently conveyed property to sons so did not have to pay 2. ** in absence of agreement. do not go there unless pretty clear that absent a message ousting occurred 4. because has actual legal possession 3. gave women some rights to property and to keep own earnings d. can try to go for constructive ousting 1. court said no evidence that P did not allow M to use enter the property c. co-owner still has reversionary interest in the land 3. calls lease: estate for years 2. likely that in order to get sole possession. D had tenancy in entirety set aside to sons.certified letter with signed receipt. leaseholds do not sever the joint tenancy i. no requirement that a legal owner needs to be in physical possession i. in order for SOL to begin running: i. will have to pay 5. not keep him out d. Mackereth a. under common law and modern law leaseholds do not sever a. throw out furniture iii. one co-tenant is not liable to another co-tenant for use and enjoyment of the property ii. 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. very difficult to prove 2. successful ousting severs the JT c.31 1. exist today in fewer than half the states) c. ousting 1. PP in favor of protecting family assets over debt collectors 4. waste 1.
Virginia example 1. Harms v. lessee steps into shoes of co-owner for lease period ii. transfers ii. title theory – borrower gives title to lender and gets back when paid off i. in a joint tenancy i. early cases followed this theory ii. do not know who died first b. valid lease for portion of JT b/c interest not infringed on b. the co-owner in possession does not need to pay a proportionate share of the rental value a. Sampson a. the other JT get rights of survivorship and lease ends iii. surviving party has the right to the property if party dies without paying off the loan a. if not leases. other co-owner or grantor’s heirs have to deal with the lease when grantor dies 4. if grantor dies during lease. all have equal right to possession . other party has right to survivorship to the property 3. what severs JT? i. JT severed when mortgaged interest 2.32 i. Swatzbaugh v. others can not cancel the lease or recover exclusive possession of that land 5. ousting iii. so if loan out on mortgage. general rule that when a co-owner is in exclusive possession of concurrently owned property. pretend that shooter died before murdered so estate passes as though the killed survived the shooter iv. banks prevent this by title search & requiring both signatures so can collect on the loan i. lessee has lease for as long as grantor alive ii. Sprague 1. A and B both died in accident. 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. say that A died before B and B died before A d. Responsibilities to Co-Owners i. now idea that mortgage does not sever unity of title ii. 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. mortgages 1. slayer statutes 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. simultaneous death a. if grantor dies. when one co-owner grants lease. lien theory . b/c of rights of survivorship.
can not gain by prescription ii. taxes a. could be entitled to improved value b. so if sell or partition.entitled to share of rent actually collected.e ovenant/servitude/license/estate). how it was created – grant. if third party rent. courts prefer this grant i. right to go on land of another and do some act on the land ii. appurtenant. easement. so entitled to compensation if paying too much iii.look for clues & analyze c. who is dominant/servient tenant. conceptual difference b/w covenants and easements iii. what kind it is – affirmative/negative. whether adjoined or distinct . recognizes more than these 4 types of negative easements b. improvements and repairs a. but an interest in land a. tenant in possession is not entitled to contribution for necessary repairs b. how terminated** 1.almost always adjoining a. when ambiguous. i. servient tenant prevented from doing something on own land ii. not at fair market value ii. no system of recording record titles 2. reserved. general rule that need agreement or permission to get money VI. easement benefits its owner in the use of another tract of land b. limited in kinds to light. look to words of limitation e. each one has to pay taxes and mortgage (if joint) ii. if paying more than share. gets confusing with covenants. an easement appurtenant to one portion of land may not be extended by the owner of the dominant estate. either appurtenant or gross i. interests of improver taken into account without harming other owners iii. Easements and Servitudes ** on exam: discuss whether easement (or something else. implied. air. support & water iii. land benefited is called dominant estate c. always ask this question first when determining affirmative or negative b. when beyond repairs i. American law a. general rule i. prescription. appurtenant/gross.rights arising from a grant of a right by one landowner to another ** not an estate in land. negative i. affirmative i. in absence of an agreement.33 b. came from English rules b/c: 1. land burdened is called servient estate d. at least able to recover the amount of share of property i.
can be revoked b. thus. take profit (example: trees. then you know it’s that 2. Brown v. or until need for it disappears 2. licenses don’t need to be in writing f. estoppel i.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. or life. not controversial ii. MISUSE of EASEMENT a. easiest. in gross a. so need to be in writing ii. duration i. not necessarily perpetual. easements need to satisfy the Statute of Frauds i. preferred if ambiguous b/c revocable a. but transferable ii. make substantial improvements so estopped from saying that it was revocable b.reserve the right to take your seat away i. How are easements created? a. gives permission to go on land that would otherwise be a trespass ii. c. 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. license + interest i. Cox cable can assign easement in gross b. tickets. WOLF will not use “to A and his heirs and ASSIGNS” B. licenses are purely a contract a. licenses i. d. bought more property to build home and wanted to extend access on road to property for purposes of nondominant land. only irrevocable when: a. gives the right to use the servient land there is no dominant estate benefits the owner personally. off the land) b. by grant i. though many in our readings are ii. “the right to use land to Jim and his heirs” . could be irrevocable for a purpose. b. Voss. Not alienable in England under common law d. usually burden the dominant tenement (unless terminated) iii.34 ii. e. can limit for years. non-assignable. look at language 1. IN WRITING. words of limitation by grant by servient tenement A. such as a particular interest (left binoculars at stadium) e. if says easement appurtenant.Voss owned land and Brown had easement.
involuntarily. strictly necessary. not hostile to Rosier’s use iii. reasonably necessary (elastic sense. apparent c. conveyance/severance causes landlocked parcel and at the time the split was made. voluntarily. Rosier A.35 C. idea that grantor must have intended for an easement b. can have alternative method but . not in writing ii. Court finds not an easement by prescription i. not just convenience ii. need to satisfy same elements as AP but acquire right to use c. implied i. 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. Court finds not an easement by necessity i. Othen using road across Rosier’s property that a levee makes the road not usable by Othen C.partition/foreclosure c.BOTH require unity of ownership of the dominant and servient estate by a common owner 1. grantor severs a piece of land into 2 estates. there was once unity by Hill ii. prescription **use SOL for adverse possession if no SOL for prescription i. not exclusive use 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. implied by necessity a. only need to negate one element 2. either to himself and someone else or 2 new and separate owners i. was open and notorious though iv. only can acquired affirmative easements NOT negative easements iv. permanent b. Othen v. Hill originally owned both properties B. the common owner was using the land in such a way as to require the easement i. different than adverse possession b/c that acquires title/ESTATE iii. remember “and his heirs” is not an estate b. adverse user of the property ii. 2 kinds. implied by prior use a.sale/devise ii. if there was a break in permission then could start SOL ii.
example. Willard v. Church. doesn’t matter if allow the easement or not b/c the more productive user will pay for it. but reserves easement of a right of way across B’s land to get to the ocean.here if Rosier awarded then O will pay R to use then R some amount b/w R’s cost and O’s benefit. 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. predominant rule is that terms are irrelevant i. Wolf likes b/c encourages alienability since an easement can be a restriction on land decreasing value iii. WOLF. ambiguous. keep rule b/c harder to burden purchaser e. typically include land sale with grant “to my heirs for the right of away across the land” d.create new right b. and if O awarded then will use the land d. reservation i. under common law and majority today: A. c. whether except or reserve before or after doesn’t matter ii. must compensate land owner . CASEBOOK a. allow third party to pay for the easement before sale from grantor or pay grantee for the right of way. exception a. so you reserve a RIGHT and except TITLE c. b. still the majority rule today ii. 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.A owns land. reserve the right to use the property in some way a. if TC zero.preexisting right grantor keeps iii. 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. sells to B. right distinction a. exception.use title v.does not follow common law rule a. already have the property and want to keep it for some use b. eminent domain i. etc. government can take private property for public use as an easement ii. takes grantor’s intent into account b. reservation. it is NOT an easement when owned by original owner b/c can not have an easement in your own land i. today. still need unity of estates by common owner when severed e.36 d. ii. common law rule could not create reservation in third party i. applying Coase theorem i.
interplay b/w zoning and servitudes A. created by statute a. more in the nature of a covenant since negative. covenant prevails . perpetual in duration and transferable i. look at statute to see what authorized to do b. generally for agricultural land uses. ZONING—generally does not terminate an easement i. can block the right of way for example iii. no easement b/c can’t have an easement in own land e. many states have codified this b. condemnation (like eminent domain above) h. will try to negotiate first a. does not need to go on forever b. How are easements terminated? a. look at language. usually no conflict B. hard to prove ii. ordinance prevails C. not subject to change of circumstances doctrine 3. a license is revocable b/c a K. not only for business purposes c. merger. need intent AND actions d. servient owner can obtain easement back by prescription ii. usually can just use release or prescription to show same thing iii. abandonment i. in gross ii. like abandonment b/c if dominant owner had tried to look then can say abandoned v.dominant and servient estates are united i. circumstances and purpose iv. last resort to use eminent domain.ends. government does not need to pay if take a license a. can satisfy all elements of AP and SOL iv. but its not imposed by neighbors d.dominant releases to servient. covenants do not supersede ordinances. gov’t likely has immunity from K so if only a license then does not need to pay compensation v. another kind of easement is a conservation easements i. but remember that the dominant owner would still need notice g. if covenant less restrictive than ordinance. not subject to horizontal privity e. detrimental reliance of servient on dominant such that the easement is no longer in existence. owner should be compensated if take land w/ covenant also iii.37 a. estoppel i. could be hard to tell if easement or fee a. converting golf courses into other uses & need permission ii. courts deferential to lawmakers public use definitions f. release. prescription i. usually need consideration c. expiration. in symposium. preserve historic areas i. equitable principle f. if ordinance is less restrictive than covenant.
intent – intent that contract will benefit and/or burden future landowners a. TODAY. heirs and assigns not to paint the house orange. Real Covenants -remember servitudes include: easements. real covenants. Three things that need to show for running of a covenant: 1. both sides likely making promises c.modern courts will find intent if there is an agreement unless the grant says only for personal use. paints the house orange. 2. example. deals with property value d. D wants to sue non-party B. burden by someone who is not an original party (it’s not a ‘running’ case if only have original parties. profits & licenses a. not just to the owner c. equitable servitudes. and only personal benefit to owner . If B changes mind and decides to paint orange and A Jr. 3. England. by grant: “I promise for myself. ii. value added to grantees land and decreased value to grantors b. A dies and A Jr. real covenant law is a combination of property and contract law i. touch and concern – usually in terms of value to the land a. real covenants run with the land A. if not in esse then needed to show intent through language of grant b. easement appurtenants also run with the land (even if not mentioned in the grant. whether affirmative or negative they run with the land) B. adds value to the LAND. This is a burdens running case: Tee Tor B A A Jr. running with the land means that somebody not a party to the original agreement can bring a suit d. burdens and benefits Coventee/Promise Coventor/Promisor A B D C Benefits Burden i. heirs and assigns that I will never …” b. then it is just a personal covenant) A. at the time of breach. at time of grant. A 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. can be burden on land.A and B make promises for self. know which side is benefit and which is burden i. sues: Tee Tor A B A Jr. 2. e.38 4. Non-party D wants to sue non-party C. usually 3 situations where there is a lawsuit on the covenants 1.
FSA-FSA 1. Moxhay 1. always need covenant at the same time b. finds payment to housing association touches and concerns in form if not in substance b. not sub-lease d. covenant to pay money usually not enough i. notion that promisor’s assignee had notice of the agreement. landlord-tenant 2. can be an estate of a lesser quantum iii. horizontal – i.need vertical only i. doesn’t matter if not entire fee but needs to be the same kind of estate B. etc C.looking for DT-ST C. grantor-grantee (fee. Massachusetts simultaneous 3. need property relationship iii. exception: Neponsit case a. estate for years for assignment.39 e. LL-T. covenant to pay runs with the land 3. though today has horizontal. need estate of the same duration to successor A. simultaneous interest 2. tenurial 2. privity ** start w/ this b/c if a burdens case & no horizontal privity. if privity exist keep going & talk about vertical. then analysis over.need horizontal and vertical i. conveyance of land with covenant also. burdens case. and burden running with the land so enforced in equity E. created equitable servitude 3. vertical privity c. reversionary-life tenant B. Massachusetts (now Nevada) 1. intent & touch & concern a. relationship b/w the original parties OTHER than the covenant with each other? ii. didn’t then 2. easement appurtenant. under common law this wasn’t horizontal privity 1. no privity in Tulk b/c FSA conveyance didn’t count then A. life estate) D. lax standard ii. NOT okay if FSA to LE. or previous existing property relationship iv. so Tulk v. authority that an AP can enforce the benefit . majority of modern jurisdictions 1. benefits case.
there was intent.no restriction shall be . Law courts can award an injunction 1. T/C and both privity. Six things to ask once you think you have a covenant? 1. SO WHAT and award nominal damages to recognize the breach iii. NY court makes an exception for bank to be required to pay property owner’s association fees i. Massachusetts. touch and concern met in substance. or are they the same people? 5.NOTICE. however this is an exception and besides rent usually affirmative covenants as promises to pay in these situations would not be enforced g. Who is/are the plaintiff(s) and who is/are the defendant(s)? 4. unlike LL-T where the original tenant is still liable to the LL for unpaid rent when there is an assignment or sub-lease.remember intent.need horizontal and vertical e. At the time the original parties entered into the agreement that is the subject of the dispute. but ii. Did the court enforce the agreement? Why or why not? f. What was the subject matter of the agreement (that is. originated in Tulk (b/c no horizontal privity at that time) a. did the original parties on one side of the agreement have with the original parties on the other side of the agreement? 6. association as agents for all owners and successors so found vertical privity in fee a. IN ADDITION TO the fact that they were a party to the agreement. What is the relationship b/w the original parties to the agreements and the plaintiff(s)/defendant(s).40 a. equitable servitude. what OTHER relationship. covenant. easier to do b. Court can look at it and say: i. not form a. 2 issues: 1. if suit brought in a law court b/c covenant breached. intent. today most covenants enforced in equity and not at law A. unless statute allows it a. touch and concern 1. Who were the original parties to the agreement that is the subject of the dispute before the court? 2. equity courts can not award damages 2. on benefits side. benefits and burdens case. the original promisee is off the hook after transferred land interest e. if anything did each side agree to do or refrain from doing? 3. what. relaxed requirement 2. Neponsit case a. touch and concern and privity 1. Also prevents the injunction b/w damages preferred iv. if any.
Truskolaski i. relief since could not award damages in equity court iv. BUT if party benefits and unless there is a substantial changed in circumstances. and if so will only award damages if conditions such as changes in character of properties. of actual or substantial benefit to a person claiming enforcement rights. courts began to balance the equities 1.Wolf could ask if it’s a covenant/equitable servitude or both) b. under a covenant. Residential restrictive covenant and still benefited owners so though land around had changed it was no so great to make inequitable . court will not look to a change in circumstances b/c viewed as a contract 2. 3. West i. before Tulk i. hurt plaintiff b/c would ONLY enforce if plaintiff receiving some benefit from the servitude that outweighed the harm to the defendant a. if says condition has changed in such a way as to shift the equities than the court will award it 4. court asked to give injunctive iii. common scheme no long subject to restriction. conduct of persons from time to time make it inequitable. at the time of the proceeding. helped the plaintiff w/equitable servitudes 3. DO damages/covenant analysis first and see what the question is asking for – (clue that it’s a covenant and not a servitude. then court could order injunctive relief ii.41 enforced or enforceable unless its determined that restriction is. etc. when brought to equity court. Rick v. the Court will reward the injunction a. only if damages at law were not adequate. Western Land v. Court will not balance equities when the defendant did nothing but rely on the covenant b.
it is not persuasive to outplace the private-property restrictions v. Bad for alienation b. Court can not enforce b/c would be state action and violate EP if court used to enforce racial agreements b. Answered constitutional question and civil procedure question instead . Even if the council changed the zoning to a commercial area. Sanborn v. Did not do covenant/equity analysis though there was not actual. actual i. own land did not have residential covenant iii. common landowner a. Also common owner should put covenant in each deed. Shelley v. McLean i. Court enforces by saying inquiry notice and should look to see if neighbors have covenants on their lands 2. in the deed but didn’t read c. allow implied reciprocal negative easements 1. WOLF DOES NOT LIKE a. constructive/record or inquiry notice c. record or personal b/c someone told you b. notice is everything & floodgates open vi. will not enforce racially restrictive covenants 1. Record a general plat w/ purpose i. Kraemer a. record i. BUT does not do this often b/c of marketing reasons 3. inquiry 4. nothing in landowner’s agreement but it all comes down to notice a. OR c. court will imply a restrictive covenant into your land if others from the common landowner have the agreement 5.42 ii. Someone wants to put up gas station. 53/91 had covenants ii. constructive/actual notice ii.
North Carolina golf course case a. SHOWS NOTICE IS THE MAIN FACTOR a.43 2. Covenant (damages) iii. owners made grant to use land for a golf course but no colored people could use the land referred to as a restriction b. goes against condition subsequent preference i. Court interpreted as a fee simple determinable so land automatically went back to landowners c. LOOKS like a covenant but: i. condition (power to re-enter) ii. limitation (auto reverts) d. covenant enforced in equity but an element missing for it to run at land. party seeking enforcement is seeking injunctive relief . 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. or ii. HOWEVER.
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