Possession, Ownership, TransfersAcquisition of Title

Acquisition by Capture
Ferae Naturae: Wild Animals o Must be fugacious: capable of running away, can move/flee. Once ferae naturae, always ferae naturaeonly possessed as long as it is contained. Res Nullius: A thing belonging to no one: ferae naturae in their natural state. Res Publius: Owned by everyone. If the person is on public land, theres no concern that he was trespassing (if there are no restrictions on the use of that public land. Can take valid title of animals on public lands. (See: Pierson) o Rule of Manucaption: Property right ensure when someone has physical possession of the thing (dominion and control). Constructive Possession: You will certainly have possession when you have: Mortally wounded or Trapped; Must have deprivation of natural liberty

First in time, first in right

o The Law of Increase: Once you own an animal/producer, you own each of its offspring too. o Exceptions to manucaption rule for ferae naturae: Custom and usage (Ghen v. Rich pg. 23) The iron takes the whale Indicia of Prior Ownership (sparkly collar on fox) Animus Revertendi: Animal that returns to captor, domesticated Constructive knowledge (Canadian fox shot by hunter in GA who knew that it was not native to the area) Contextual knowledge: (A gorilla on Newbury Street.) 1

Rationa Soli: Landowner has constructive possession of animals on his land, until they escape. Discourages trespass: the trespasser forfeits the rights to the landowner. Tort Liability: Ducks in Keeble v. Hickeringill, pg. 27, ruled on malicious interference with trade.

Oil and Gas

Owner Pursuit: If the owner is in pursuit, when exactly does it escape?

o De coelis ad infernum: Right from heaven to hell: Landowners own beneath and above their land (to 500 ft.). Lone Star Gas: court did not like ferae naturae reasoning being applied to oil and gas. The gas was also captured and re-injected into the land, so it really wasnt ferae naturae, but the court rejected the ferae naturae line of reasoning outright. o Plater Note: Gas Company injected smell, indicia of ownership? o Old Rule vs. New Rule: Old Rule: If you find oil/gas reserve and capture it, the whole thing s yours. Tragedy of the commons: This has public trust implications, due to the wild orgy of pumping The folly of Drake: first man to find oil thinks he owns it allnot the case. Current Rule: there is regulatory law overlaid upon. You pay the government to allow you to pump. Treated more like a public trust: public owns an interest in it. o Brings in public nuisance considerations: wasteful pumping offends the interests of society, decency, morals, etc.

Acquisition by Discovery
Discovery: becoming the first person aware of the existence of this thing/land (no on has prior claim). o Rule: The discover must perceive it, desire to establish possession, shown an unambiguous intent to possess, as demonstrated by an act. Ex: Kayaker got his hands on the ambergris. Dont have to know what the thing is to discover it.

o Probably something in addition to discovery is necessary to initiate full property rights in new lands. The law rewards changing the natural state of things with ones labor: Adding labor to land one discovered likely would be enough to initiate property rights. If an island in international water, putting indicia of ownership, exploring it, improving it, and defending it will help a claim of ownership. o Discovery v. Conquest: Two ways to acquire territory in international law. Discovery is discovering hitherto unknown land whereas conquest is taking by force. Both require subsequent settlement of property to retain ownership. European law: state not discovered by Europeans can still be discovered. Europeans can have full title, which the U.S. gained through conquest and purchase. Indians have right to occupancy A good lawyer may have argued that there was no valid conquest of the Indians because there was no indicia of conquest. The Indians had no concept of land ownership, so they couldnt have known that they were fighting for their land. Occupancy Extinguished By: (1) Purchase, (2) Conquest, (3) Gift, and (4) Abandonment. o Discovery of America: Johnson v. MIntosh

Acquisition by Creation
Rule: A person owns ones body, and so owns the property created by the efforts of their body/mind (by extension). Accession: Wrongfully (knowingly or unknowingly) taking an item and then changing its nature/platonic essence to improve its market value. o Rule: The wrongful actor then obtains title to the item (easier to prove if it wasnt wrongful). BFPs buy from accessors, this receiving good title and cannot be held liable to the TO. The wrongful actor is liable, but only for value of goods/raw materials at the time of taking. o Policy: Court recognizes that someone has invested labor and thoughtfulness to change the raw materials into something of a different kind. The value has increased enough that its fair to cut off the title. o A certain amount of change is required to cutoff title: Less for innocent actors, more for intentional accessors. Intellectual Property Law o Purpose: To balance rights of creator against right of public. Creator should reap financial benefit to reward & encourage research and development. However, we believe in a free market, free exchange of ideas (Jeffersons candle lighting). The U.S. rewards fair opportunists. o Patent: Protection of application (novel, useful, non-obvious) Protect new, useful, non-obvious inventions/discoveries: applications of ideas. Trade secrets are subsidiary of this but not protected per se. Granted by specific application; may expire after a given period. One way of putting it: Ideas and facts exist in the public domain, but initial expressions of ideas can be copyrighted. Concept of labor that changes an idea to initiate a separate copyright.

o Copyright: Expression of an idea (Cheney silks could be copywritten today)

Cheney Brothers v. Doris Silk Corp. (pg. 55): If you cant file a copyright, you wont be protected. Cheney wins because the market demands cheap knockoffs.

o Trademark: Words and symbols indicating the source of a product/service. Aim is to avoid misrepresentation and harm to the reputation of the holder of the trademark. INS v. AP (Pg. 50): News is quasi-property, info is public but transmission can be considered property. INS tried to reap what it didnt sow. It would be unfair competition, ten, for one company to take and use the others work, even though the work itself exists in the public domain and can be freely used by those not in competition with the companies. o Moore v. Regents: Human body parts are not property. Therefore, Moore lost conversion claim and scientists allowed to patent cell line, as their developments that were based on Moores cells were far enough removed from him. Moore could have argued the Law of Increases (defined above). Moores best argument would be administrative process, since its a state university, and thus part of the government. Accession is best argument for Regentsonly liable for the spleen, not their developments of it. Also, pharmaceutical companies would have no liabilityBFP is a cutoff. o Property in Ones Person: Person has control over the commercial use of his/her identity. Vanna White v. Samsung. o First Sale Doctrine: In theory, if a company has received the money for the first sale of the item, then they dont have exclusivity anymore (unless, of course, the idea is protected). o Cultural Property: The nation might be the TO if the nation owned the thing or it was acquired on behalf of the nation by explorers.

Transfer of PossessionFinders Law

Rule: Finders rights are good against all the world, except the TO (Armory v. Delamirie, Hannah v. Peel). Conversion: Common law cause of action for taking anothers property; interfering with possession or use/enjoyment of personal property. o Remedies for conversion: Trover: Legal remedy of $ damages for Ds conversion. Replevin: Equitable relief, force D to return goods to P, who has stronger claim (i.e. TO). Relativity of Title: o Ownership is usually shown by manifestation of title (documents, etc.); possession is shown by physical possession and intent to exclude others. o TO owns over everyone, but often cannot be found. o When claim is between multiple non-true owners, the party that has been claim keeps possession and finders rights, but not full title. Finders rights can be sold: However, what they sell is their finders rights, not fee simple. o Hypothetically, if finder is going to receive damages for the thing found, should be should less than full title, since the TO can return and claim. o A TO can seek replevin against the buyer or the finder. Tort liability for finders: Think bailments. o Some courts say no tort liability for finders o Others say only if gross negligence Exceptions: o Attached to the Land: Owner of the locus in quo. If the thing is firmly affixed/attached to the real property, titled goes to the owner of the locus in quo (OLQ). o Mislaid Property: OLQ

If the thing has been mislaid, not list but intentionally place there and then later forgotten, the title goes to the OLQ (e.g., woman leaves her purse at the hair salon).

Exceptions that Negate these Exceptions: o Treasure Trove: If an item is mislaid or affixed to the land, and its money jewels, or another readily negotiable valuable, then it goes to the finder. What counts as treasure trove? Something consciously mislaid/buried and recognized as so inherently valuable that its very tempting to deal with in secret. That negates both of the exceptions above, but still doesnt cut off TOs claim. Policy: This rule is thought to encourage honesty and prevent finders from selling items quickly instead of allowing time for TO to reclaim. o Shipwrecks (pg. 109): Usually defined by statutes if in water within territory of the state. May have to be returned to the state.

o Lost Property: If the owner accidently lost the goodsi.e., dropped themthey go to the finder. Trespass: o Usually, trespassers still valid finders. Applies the same rules. Otherwise, trespassers would be covert and never mention there finds, thus allow TO would have a smaller chance of getting it. o Gross trespassers, though, live thieves, courts are more reluctant to award, so might change the rules.

Bailments:
Temporary transfer of possession to Bailee. Bailee has the right of possession, but less than fee title. Rule: Bailee must assume actual physical control with intent to possess. Bailees Rights:

o Rule: Bailee can do anything with the item during that time period, so long as it wasnt expressly prohibited and its reasonable. Bailees rights are extended for a reasonable time under the circumstances of however long is expressly stated. Generally, bailor cannot rescind bailment before end of the prearranged agreement: judged by reasonableness standard. Duty of Care: Bailee has a general duty of care to Bailor/TO for the property borrowed. o Bailor can recover for: Intentional Harm Negligence of Intentional Harm: If something is lost of broken, presumption of damage by bailee. However, bailee can rebut and evade liability. Misdelivery: Bailee is absolutely liable if they misdeliver, even w/o fault. Violation of terms of the agreement

o Bailee can also stand in the shoes of the bailor, and recover. But only one party can recover from the D (bailor and bailee cant both recover from D). So, bailee recovers from D, bailor recovers from bailee. o Bailee not responsible for: Hidden Items he doesnt know about: For example, scarf in the coat pocket. Could also argue that if the bailor didnt inform the bailee that the bailment was expensive, the bailee could escape liability (Abe Lincolns gun). Bailee who is a finder: A bailee who is a finder is only liable for gross intentional harm.

Transfer of Title
Bona Fide Purchaser Rule: A BFP gets only what the seller had to sell. A Non-BFP gets nothing. o A BFP must have: Good faith title, valuable consideration, no inquiry notice (low price, where the purchase was made, person looking over shoulder, etc.)

Exceptions to the General Rule: Ways that a BFP can receive full title from a seller that did not have full title. o Confusion: One persons grain gets mixed in with anothers, BFP gets full title. o Indicia of Ownership (Estoppel): Owner somehow gives the seller the apparent authority to sell the full title, or the apparent full title of ownership, BFP gets full title. (Ex: George Tracy Piano Mover) o Entrustment (UCC 2-403(2): If BFP, though the ordinary course of business, buys a good from a store that ordinarily buys and sells such things, and the good has been entrust to the seller by the TO, BFP gets full title, and TOs rights are cutoff. Might include taking an item in for repair to a store that normally sells such items. o Fraud (voidable title): Requires intent to misrepresent to the person to his detriment. But, if the person who obtains the item by fraudulently inducing the TO to sell to them, then sells to a BFP, the TO loses rights to the item but can sue the middleman for damages. o Foreseeable Specific Negligence: A Plater invention Ex: Leaves house for a week with lights on and front door open Stereo is stolen, then sold to BFP. You could argue that BFP has full title because of TOs foreseeable specific negligence (no longer a contest between two innocents). o Confiscation by the Government o Outrun the Statute of Limitations

Adverse Possession of Land Elements: POCEAN o Possession: Is the adverse possessor using the land in a manner as if it were the TO (as others in the community do)? o Open: What would the TO have seen on the property had he visited?

Can be actual (owner new AP was there) or constructive (TO shouldve known)

o Continuous: What would a TO do? How continuously did he possess the land? Isnt broken if AP allows another on the land. All elements of adverse possession must be continuous: If one is interrupted, it is not continuous, and stars over. o Exclusive: Is the AP possessing the land in a way that excludes other possessors like a TO would (except those he permits to enter the land)? o Adverse: Is the AP possessing the land in opposition to the TO? Whether is has to be adverse in intent or adverse in fact depends on the state. o Notorious: Same as open. Policy: Quiets title, bars stale claims, encourages stewardship, perfect expectations. Adverse Possession under Color of Title (Constructive AP): AP has an instrument (title, will, etc.) that covers the property, which turns out to be false through no fault of their own, and AP has no reason to believe it is wrong (relied upon in good faith). Howard v. Kunto. o If AP ripens, AP gets title to everything that is in the faulty title, even if they are only actually possessing a portion of it. o TO has constructive notice: If he had inspected land, would have found AP, and would have realized that she had faulty title. If TO pops the bubble of total AP by openly coming onto the land so that AP can say why are you on my land, AP is knocked back down to only the part of the land that they actually adversely possessed. If TO sneaks on at night, it doesnt pop the bubble. o Doesnt apply to any portion of the faulty title that covers another persons land, in which the AP is not possessing, since that person had no reason to know constructive adverse notice and had no reason to know AP was there with faulty title.

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Tacking: One AP can pass along his wrongful possessory rights to another person, who is also then an AP, so long as there is privity (it is a legal linkage/transfer: conveys by K, will, intestate succession, etc.). o Vertical Privity of estate: a voluntary transfer of land. o Adverse possession remains continuous even though passed to another person. AP chain is only broken if AP leaves and another comes without privity.

Disabilities Exception to Adverse Possession: TOs insanity, imprisonment, or minority of age at start of adverse possession had 21 years or 10 years after the termination of the disability, whichever is longer, to bring an action of ejectment/trespass. o Only Disability at the start: doesnt help if you turn insane 2 days after state of adverse possession. o Cannot tack disabilities. o Disabilities do not run to successors, as successors stand in the shoes of the adverse possession.

Rule, Adverse Possession and Govt Land: Generally, adverse possession doesnt apply to govt land. Adverse Possessor can eject a trespasser Mesne Profits: If TO ejects AP before adverse possession ripens, he has a right to recover mesne profits, usually for the last 6 years. AP forfeits any fixtures he added to the property.

Adverse Possession of Chattels: Same requirements (POCEAN), but openness can be hard to prove, and it ripens in a shorter amount of time (around 8 years, usually). o Rule: TO should exercise due diligence in finding AP articles (OKeffee pg. 144). Majority Rule: Adverse Possession starts running when the TO knew or should have known above adverse possession (must do due diligence). MA Statute: SoL runs from date of POCEAN and if owner does not exercise due diligence, impossible to show that there is openness. Owner should have constructive knowledge.

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NJ: SoL runs from the date owner asks for the item back (no constructive knowledge).

Tolling of the SoL in respect to AP: o AP cannot cut through: A life estate (AP doesnt ripen while the land is owned as a LE) Subsurface rights (If the rights are owned by someone else and the AP made no attempt to possess it, the AP doesnt get AP of the resources). Easements Disabilities Government-owned land

Prescriptive Easement: o Easement: Right of use of land for a particular purpose, not ownership or title. Gives the right only to use as the possessor previously did, in the same quantity and character of the prior regular usage (e.g., easement to mind gold, but only at the same rate and through the same process he did previously). o Elements: Use Open Continuous/Regular Doesnt have to be exclusive Adverse in fact Time is less significant that with AP.

o Once granted a prescriptive easement, the AP can sell it and pass it down forever. o Easements and Mesne Profits: The granting of a prescriptive easement blocks the right of the TO to recover mesne profits.

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Public Trust Doctrine: Rule: Government can restrict private owner of water, gas, etc. Split Title: Govt has equitable title, while the present owner has legal title. o Thus, govt has right to prevent a waste on the reversion of its future interest. Extends to all land covered by the ebb and flow of all tide and all inland lakes and rivers that are navigable (pg. 708). o Reasonable access for fishing, fowling and navigation to foreshore (high water mark or debris line in Nantucket, etc.) Riparian Easement: Right to reasonable use of the water and water free of pollutants. Public Trust for Beaches: MA and Maine restricted to the low water mark. IN NJ you have broader rights: an easement across dry sand to get to wet sand.

Gifts/Gratuitous Transfers:
Definition: voluntary transfer of full title property rights to another without consideration. Inter Vivos Gifts: Gift giver must have donative intent to give title in the present moment, not in the future, not conditional, and not revocable. Requirements of an IV gift: o Donative Intent: In the present, not I will give Cannot hand someone something and say its a gift as of tomorrow: futurity destroys the gift because it becomes a promise, even thought physical possession was transferred. Unconditional Irrevocable: Any hint of conditionality or revocability invalidates the gift from the beginning (void ab initio). o Delivery: Must be separate from the intent to validate the gift (Gruen v. Gruen). Distinguish from trusts, which can be conditional.

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Can be constructive or symbolic: does not have to be the best type of delivery possible under the circumstances, but is usually only held as good if delivery would be impracticable. Constructive Delivery: Handing over means of obtaining possession. o Ex: key to a house, papers to a car, Geraniums! for a chest of gold. Symbolic Delivery: Handing over part of an item. Can be anything that can be represented to the court as a conscious symbolism fir the act of giving. Possession doesnt have to be maintained after delivery, just title. Gruen v. Gruen: The remainder in the painting is an intangible interest, and thus constructive delivery is okay.

Delivery by Third-Parties: Agent can delivery in place of TO, but agency dies w/ the principal (Innes v. Potter: soft nosed court called it a trust, thus allowing the transfer of possession by the agent). Escrow: super agency that outlives grantor, but only for the purposes if delivering a deed. Trustee: Must declare a trust and assign a trustee to delivery a gift. o A trust is more flexible because it survives the death of the donor.

o Acceptance: Acceptance is implied if the gift is something of value that normal person would want. Cant be rebutted Its possible to transfer title in a gift but to retain possession of the item as a bailee or life estate holder. Still must have some form of delivery so that title passes, even though the donor will then retain possession. Not condition, because donee has full title.

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Causa Mortis Gift A gift given in a reasonable anticipation of imminent death. Rule: If given in a reasonable anticipation of imminent death, the gift is presumed to be causa mortis. o Assumption can be rebutted by clear intent for the gift to be irrevocable, thereby making it an IV gift. Automatically revoked when life is saved: o Donor can revoke any time before his death. o If the person doesnt due at the end of the episode, the gift is automatically revoked. o Recovery, and then subsequent death by another method, still revokes the gift: Plater: If its a short time after recovery and the person dies another way, the donee can argue that there wasnt sufficient time to make a will and thus a CM gift should be allowed. o Any act that expressed implied or express revocation revokes the gift (a subsequent will, subsequent gift of the same item, etc.).

Trusts, Wills, and Estates Trusts Creation: (1) Thing, (2) Delivery, (3) Trustee (can be self), (4) Beneficiary, (5) Terms,
(6) Intent to create a trust.

How a Trust Works: o The trustor owns full title. o He then declares that he transfers his title to the trustee, who gets legal title. This means that he owns the body of the thing for the benefit of the
beneficiaries, who immediately have acquired equitable title.

You cannot make a mandatory trust to benefit a no-human but an

honorary trust could do it if trustee wants and the attorney generally allows it.

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 Legal and Equitable Title: Ownership is split between trustee (legal title) and
beneficiaries (equitable title).

o Trust is bound by terms o If trustee dies or is unwilling, court can appoint a new trustee o Trustee has fiduciary responsibility to the beneficiaries Which means that the trustee could be held personally liable for any
errors: a very high level of responsibility.

o Beneficiaries can sue trustee for mismanagement o Any beneficiary or the Secretary of State can all for an accounting at any time. Can be made inter vivos or through a will o IV ones dont have to report to the court every year, and are presumed
irrevocable.

o Testamentary trusts have to report to the court every year. Presumed Irrevocable: but can be revoke if expressly stated. Cy Pres Doctrine: If its not possible to carry out the terms of trust, then should reform
terms so that trustors intent is maintained as close as possible.

Trusts are Equitable Mechanisms, which means that the courts balance all interests,
including that of the public.

Spendthrift Trusts: A trust that will pay a beneficiary income but will cover his debts
(prevents creditors from accessing the trust).

Wills
Testate: Trustor dies with a will Intestate: Trustor dies without a will, and property and debts are settled by law. Generally goes to spouse/children then to other family, finally to the govt. Must have witnesses to be considered binding. o Holographic Will: Entirely written in the trustors own handwriting. Can be valid without witnesses if you can prove it was the trustors handwritingnot valid in Mass.

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Competency: Competent creator must know: o Who he is, o What his assets are, o Who he wishes to favor, and o Have a logical design to distribute assets amongst those he favors. o No elements of delusion or psychosis can affect those elements. As long as those 4 elements are present, the will cannot be broken. If one of those elements has a psychotic element, the will is invalid.

Snapshot at the Time of Death: all property owned and all debts owed. o First, all debts are settled. o Then, all valid gifts out of the estate are made via Testamentary Trust, IV Trust, or Testamentary Gifts. Rule, Fraud on the Widows Share: Gifts made with the intent to defraud the spouse/heir can be repealed. o Anything given after the writing of the will by before death by IV or CM gift is struck from the will because it is a snapshot in time. o A will has no effect until death.

Devisees/Legatees: Devisee is one who receives real estate in a will, legatee is one who receives personal property in a will. Equitable Conversion: If you are under a K of sale but havent transferred the property, it is considered personal property for the purposes of the estate and family cannot void the sale. o Exception: Option Ks can be voided.

Codicil: Adding on to a will.

Cutoffs to a Chain of Title:

Adverse Possession Prescriptive Easement Abandonment: o Requires: (1) intent to abandon, and (2) an act that expressed that intent.

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o Abandonment of land must be done in writing. Accession Others: o Escape of Ferae Naturae o Govt confiscation o Destruction o Treason o Conquest o Confusion o BFP, when BFP exceptions apply: Accession Confusion Indicia of ownership/apparent authority Entrustment (UCC 2-403 (2)) Fraud Foreseeable Specific Negligence Paying $10k on a $15k car, that was really worth $15k. BFP has a 2/3rds share.

o Partial Payment of an Incomplete BFP

Estates in Land
Fee Simple Absolute:
There is no such thing as absolute property rights: fee simple is the closest you can get, but it is still very short of absolutely rights. o Necessity, private or public, may justify entry upon the lands of another (State v. Shack). Characteristics: o Absolute ownership of potentially infinite duration o Divisible (free to divide up) o Descendible (free to pass to heirs or in will)

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o Alienable (free to sell or give awayWhite v. Brown) Creation: o Common law phrase and his heirs was required by FSA. o Modern law includes the assumption that grantor is passing the greatest estate that he owns: No longer need magic phrase, and his heirs, rather there is an assumption that if grantor has fee simple, that is what is passing. Right to Exclude (Jacque v. Steenbergperson delivers mobile home by driving through field): o Property owners must have a right to exclude others from the property. o Even if no actual damages, when someone trespasses court can impose punitive damages to deter others from trespassing and to protect the property owners rights. Exception to the right to exclude: o Cannot exclude those who are there to protect the govt rights. o Other limitations to the right to exclude those coming onto the land with the direct purpose of helping the wellbeing of people on the land (State v. Shack). Prevents a landowner from controlling the destiny of people working for him. o Public accommodations like restaurants cannot discriminatorily exclude others. Theres a right of access of the public to these areas.

Life Estate:
Creation: To A for life, or to A for the life of B. o Must be measured in explicit life terms, not number of years. Characteristics: o Not descendible if measured by As life. o Alienable, but can only sell life estateworth much less than the full estate. Future Interest: o Yes. If held by O, then a reversion. If held by third party, remainder/executor interest?

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Rights of the Life Estate: o Life tenant is entitled to all ordinary uses and profits of the land. Cannot open a coal mine on the property unless it was previously already being used as a coal mine, but can cut down trees and things like that, but only for their own reasonable use. o Can lease, but any lease would necessarily end at the termination of the life estate. o Can sell, but any sale would revert to the future interest holders at the end of the life estate. Thus, only selling their interest in the life estate (you can only sell what you have to sell). o Can sue to recover harms to the life tenancy, but limited to harm to life estates prescribed use of property (Whereas a bailee can sue to recover the value of the whole bailed item.

Waste on the Reversion: Cannot commit a waste on the reversion: the life tenant must not do anything to harm the future interest. Four kinds: o Intentional Waste: Overt conduct that causes a decrease in value. Synonymous with destruction. o Negligent Waste: Decrease in value due to life tenants negligence. o Permissive Waste: Similar to negligent waste. Occurs when land is allowed to fall into disrepair. o Ameliorative Waste: Acts that enhance the propertys value The owner can charge the tenant the costs of restoring the land to its original state. Exception: If the acts have substantially changed the principle use of the land, TO cant collect rom LE under ameliorative waste.

Remaindermen: Those who own the remainder of the property, after the LE expires. o Where there are future interests related to a piece of land, the present possessors rights as to that land are limited because he doesnt have full title.

Fixtures are part of the land: They are real, not personal property, and thus stay.

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Concurrent Ownership
Tenancy in Common: A concurrent ownership, where each tenant has undivided interest in the property, including the right to 100% possession. No survivorship rights between tenants in common. Creation: o By deed, will, or operation of law (ex: adverse possession). o Only unity of possession needed. Rule: Each cotenant owns an undivided fractional part of the whole, and each has a right to possess the whole. o If cotenants disagree regarding possession, any tenant may file for judicial partition. o Each interests is descendible, divisible, and alienable. Alienability: Each owner can transfer all or part of her share independently. o Presumption of Equal Shares: but it is often the case that ownership shares are not equal. Can also include different types of estates: fee simple, LE, etc. No Survivorship Rights: At death of each tenant, his share passes by will or otherwise. Presumption of Tenancy in Common Today o Except for married couples in some states, which presume tenancy by the entirety. A commodity that each owner can buy and sell. Debtors: If one tenant is a debtor, the creditor can force a partition of the property, which could then lead to partition by sale or partition in kind. Joint Tenancy: Cotenants own an undivided share of the property with survivorship rights. Created on when expressly stated: Presumption is tenancy in common: To A&B as joint tenants with right of survivorship, and not as tenants in common. o Only created through deed, will, etc. Intestate succession is presumed TIC.

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Four Unities Required of Joint Tenants: o Time: Must take tenancy at the same time o Title: By the same instrument o Interest: With identical interests o Possession: Equal right to possess the whole property.

Alienation: Severs one of the unities. Unilateral action to sever one of the unities in a joint tenancy and turns it into a tenancy in common. o Generally should satisfy the Statute of Frauds. o Conveyance: Severs joint tenancy Even to ones self. o Lease: Some states view leases as severing, others do not. o Agreement: Joint tenants can agree that one tenant has right to exclusive possession w/o severing joint tenancy. o Divorce: Does not terminate joint tenancy, unless stated otherwise. Swartzbaugh v Sampson: Alienation created a tenancy in common. Was not able to successfully out or eject, but could have requested half of lease fee.

Not Divisible or Descendible Creditor of One Party: Is allowed to file a lien on the debtors portion of the property. The Right of Survivorship: When one joint tenant dies, nothing passes to the surviving tenant. o Rather, the estate simply continues in the survivor(s), freed from the interest of the deceased. o Exception: When one JT murders the other, the parcel is severed and becomes a TIC. o Who died first? Where it is unknown, half is divided as if the first survived and the other half as if the second had survived. Desirable because it avoids probate.

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Tenancy by the Entirety: Joint tenancy, only between husband and wife. Not severable by one party. o Cannot destroy the right of survivorship. No alienation or right of partition in tenancy by the entirety. Five Unities Required of Tenants by the Entirety: o Marriage: Tenants must be married. o Time: Must take tenancy at the same time o Title: By the same instrument o Interest: With identical interests o Possession: Equal right to possess the whole property. Presumed Tenancy by Entirety in some states: Husband and wife take property as a fictitious single person with the right of survivorship. Creditor one on party: in majority of states, a creditor cannot attach a lien on the property owned as tenants by the entirety. o After divorce, case is different. Rule: Individual Undivided Interest cannot be transferred without the consent of both spouses: no unilateral severance. Divorce: Ends the marriage and thus severs the tenancy by entirety. o Goes to either tenancy in common or joint tenancy. Note: Only recognized in about half of the states.

Rights and Duties of Concurrent Owners Duty to Account o Rents: One party does not owe rent to the other co-owners (Spiller v. Macker) Rents of third-parties must be shared between co-owners Example: 5 children own property as concurrent owners. Duty to redistribute third-party rents as each has 100% right to the land. You are able to keep the profits you make: ex. Farmer gets 100%

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o Exceptions: In SC, profits raised by party must be shared with all co-owners. o Repairs: o Taxes: No rule on who has to paybasically whoever caves. No automatic right to collect share of taxes from other owners, sale of natural resources, etc. If one party paid more than his fair share, that is considered during partition. However, if one party had sole use, that value likely outweighs the cost of taxes. o Improvements: Improver doesnt get value of improvements put in. However, does get increase in the value at partition. No automatic right to collect expenditures for repairs from others. Repairing co-tenant may be able exercise a right to contribution for necessary repairs.

o Mortgage Interest Payments: Each must pay fair share. o Partition is the only way to recoup expenditures because its the only way into equity. Ouster: Illegal booting: One co-tenant ousts another co-tenant by denying right to possession. o Ousted co-tenant is entitled to reasonable rental value from the ouster. Adverse Possession: Exclusive possession is not sufficient. o Co-tenant can become an adverse possessor only upon clear notice of repudiation of the common title. Ouster followed by a ripen AP. o There must be a repudiation of the rights of co-tenants and a claim of sole ownership. A tenant is able to presume that possession by a co-tenant isnt adverse. Co-tenants are assumed to be possessing for the benefit of all others.

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Joint Tenancy of Bank Accounts: o Joint and Survivor Bank Account: Either party on the account can withdraw the amount deposited and the survivor takes whatever sum is remaining in the account when the other joint tenant dies. o Convenience Account (lets A pay Os bills): A can lawfully write checks during the depositors life to pay bills, but has no rights of survivorship. o Presumption: By signing a joint tenancy card at the bank, which provides survivorship rights, the depositor intends to open a true joint and survivor accountgiving the other party full rights of survivorship. In most states, this presumption can be overcome by clear and convincing evidence that a convenience account was intendedthe existence of the account is conclusive in other states. o Lifetime Rights: The majority of states hold that the joint account belongs during the lifetime of the parties to the parties in proportion to the net contributions of each of the sums deposited. Creditors of A can only reach the amount on deposit proportionate to As contribution.

Severance and Partition: Severance: severing is the first step to partitioning a joint tenancy. A destruction of one of the unities severs the joint tenancy and creates a tenancy in common among the coowners. Partition: Divides the previously undivided interest. Co-tenants have an abslute right to partition at any timenot available to tenants by the entirety. Partition in Kind: Judicial action for physical division to individual interests. Presumption to favor partition in kind. Partition by Sale: Judicial action forcing the sale of the land where proceeds are divided up proportionally. Burden is on the parties to demonstrate that partition in kind would not do the trick. Used if the land is not easily physically dividable.

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Matter of Equity: Preference is for the parties to sort out the partition by sale or in kind on their own. In the absence of an agreement, courts will decide what is in the best interest of all and divide in kind or by sale. (Delfino v. Vealencis pg. 292)

Defeasible Estates: Not descendible estates. Some other future interest/fee simple is reserved. Waste: o Affirmative Waste: intentional waste that substantially reduces the value of the land. o Permissive Waste: Negligencefailure to maintain the property adequately includes failure to pay taxes. o Ameliorative Waste: Valid defense to waste if you waste improves the value of the property without changing the substance of the property. Fee Simple Determinable: Fee simple with a condition that, if broke, the property automatically reverts back to the grantor, or a remaining third-party. Fee Simple Subject to a Condition Subsequent: Fee simple with a condition that if broken, affords the hold of the revisionary or remainder interest to exercise their option to take back the land. Reversion v Remainder: future interest. Reversion goes to the original granter, remainder goes to a third-party. Equity Abhors Forfeiture: There if evidence regarding breaking of the condition is debated, there is a presumption for the current fee simple owner. Courts tend to be more lenient toward present possessor. Marital Property Rights Married Womens Property Acts Dower: 1/3 share in life estate of all heritable real property that was owned in fee simple at some time during the marriage (even if it was own and later sold during the marriage, so long as both spouses didnt sign the sale).

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o Free and clear of all debts not subject to debts of the husband/wife (so it could be more than forced share. o Rule: If both spouses signed the sale, the widow cannot collect. o In a dower state, you need to check and see if spouses had signed property sales if you are doing a title search from scratch. o Divorce ends the right of dower. o The 1/3 life estate can be converted to cash. o Claw Back: Real property owned during that was sold w/o wifes signature can be clawed back. Elective Share: Gives 1/3 fee simple in all property (personal and real), but is subject to debt. o Created by statute, not common law. Forced Share: By statute, typically or 1/3 of the entire estate, including land and money, after debts. Fraud on the Widows Share: Gifts made intended to defraud widow. o Remedy: constructed trust where recipients of gifts became trustees of trust with wife as beneficiary of 1/3 and terms of trust were to convey 1/3. o If husband gives gifts away intending to defraud wife, the gifts will be put into an involuntary constructive trust, with wife as 1/3 beneficiary. By Will: Subject to debts Homestead Exemption: In most states where you get to keep part of land up to a certain value (not including values of fixtures, though fixtures are included in the protection.). o Most states allow the spouse to choose where $20,000 of land goesso just pick the land under the house and the house goes with it as a fixture. Community Property: Gifts during marriage go to one party. o Any property or income during the marriage are pooled and split 50/50 upon divorce. o Upon death, property also considered split 50/50, so a decedent can write a will for his 50% share.

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Divorce: Rule: Property acquired during the marriage is distributed equitably. o Presumption toward equal distribution. Property can be redistributed from the title holder to the other spouse, on the assumption that the marriage formed a partnership Must Consider: o Need o Status of living (maintenance) o Contribution o Length of Marriage: shorter marriages, less redistribution. Alimony o Rehabilitative: One who has more money that the other pays for the other for awhile. o Maintenance: Spouse receives money from the other because she wont, even with job training, be able to survive at a reasonable level. o Reimbursement: Not a common arrangement; reimbursement over time for what a spouse contributed to a marriage, such as support for a graduate degree. Prenuptial Agreements: trumps all, except in the case of coercion. Marital Property? Property has to be tangible and have an actual value. o State Exceptions: Graduate Degrees: even though made through marriage, they arent property. Some states: spouse with the graduate degree obtained during marriage may have to reimburse the other. Wife wants back her share of increased earning capacity from MBA that he paid forcourt found that it wasnt marital property (could go either way). Celebrity status is a marital asset Goodwill of business that involved contributions by both spouses

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The contribution of one spouse to another to the career or career potential of the other can be a factor in equitable distribution of the property.

Landlord-Tenant
Leasehold Estates
Basic Definition: A temporary transfer of possession of real property for either a determinable or an indeterminate period, which will revert to the original owner when it ends. o Tenant has a right to possession o Lease: a conveyance of a non-freehold estate in the land and an overlaid K. Some govts require that leases are recorded. Typical Provisions: Rent amount and payment What services the landlord will provide, and what the tenant is responsible for. Defines what happens in case of accidental destruction of the property, etc. Tenant might agree to use land for a specific purpose and to not assign or sublet. Tenant agrees to surrender the premises in good condition, apart from normal wear and tear. Four Leasehold Interests: o Tenancy for Years (a fixed period): Lease for a fixed, determined period of time. Can be years, or until the occurrence of an event (end of war). When termination date is known from the state, is a tenancy for years. No notice is necessary to terminate, terminates on own at the end.

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Terms of years greater than one year must be in writing (Statute of Frauds) Alienable on both sides unless theres a provision to the contrary: Tenant can assign lease; landlord can sell Heritable: Does not end at the death of either party Continues for successive or continuous intervals, until landlord or tenant gives proper notice of termination. Notice must be given to terminate a period tenancy: Common Law: Notice must be given at a time equal to the length of the period of the lease, o Exception: If tenancy is from year to year, or greater, 6 months is required. Landlord can raise rent or throw you out: must give notice a full period ahead of time, and it must fall at the day you pay rent (start of the financial month).

o Periodic Tenancy, or Period to Period:

Mailbox rule does not apply in property: month requirement doesnt start to toll until letter is received. Presumption in most jurisdictions that an ambiguous lease is a periodic tenancy.

o Tenancy at Will: Tenancy for no fixed period or duration Not assignable May be terminated by either party at any time by either party. Court found in Garner v Gerrish that it wasnt a tenancy at will because only one party could cancel: a life estate with the condition of rental payment. Can be ended by either party by expressing intent or death of landlord, sale of property, or death of tenant. o Do not have to give formal notice of termination

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o In some state, by statute, a reasonable demand to vacate is required. Tenant only gets a reasonable time to move out (maybe three days) Courts dont like tenancies at will, so if tenant begins paying rent regularly, it gets converted into a tenancy from period to period. o Tenancy at Sufferance: Created when T has wrongfully held over past the expiration of the lease. o No right to renew, no right to demand change in rental price. Landlord owes you less care because you are there illegally, but still owes you some because you entered legally. o Permits the landlord to recover rent from holdover tenant. o Short-lived: lasts until eviction or a new lease. o If landlord accepts payment, it can be an implied acceptance to create of a new periodic tenancy, usually for whatever the rent was paid. o No immediate trespass: But if landlord attempts to evict, becomes a trespasser. Duties and Rights Pre-Javins Tenant Tenants Rights Rt. to get legal rt. of possession [Fergangs] Rt. to defend it in ct. Rt. not to be evicted Rt. to quiet enjoyment [no actual or constructive eviction by L; Dyer v. Pendleton] Rt. to convey (unless contractually limited) [tort] to have latent defects disclosed Tenants Duties --to give L feudal service as required [i.e. rent] so long as the estate | | exists; i.e. irrespective of fire, etc. --not to waste reversion --to maintain stewardship, tenantable repairs Landlord Landlords Duties --to give legal rt. to possession --not to violate Ts quiet enjoyment --[tort] to disclose known latent defects --[ to defend? to maintain? No.]

Landlords Rights Rt. to receive feudal services [i.e. rent] so long as the estate | | exists i.e. irrespective of fire, etc. Rt. to receive the reversion back, unwasted Rt. to inspect to assure waste isnt occurring

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Rights of the Tenant + Corresponding Landlord Duties: Pre-Javins

Essence of Landlord Duties: To assure the tenant a right to possession and then leave the tenant alone. Tenant Right: Right to present possession o Can exclude others. o Corresponding Landlord Duty: No duty to defend the property or disclose defects. This means caveat emptor applied in a big way. Tenant Right: Right to not be evicted o Unless the tenant does something that violates the lease. Tenant Right: Right to Quiet Enjoyment o Only applies of the landlord or his agentssuch as running a pack of horses through the tenants field. o Corresponding Landlord Duty: Not to violate the tenants right to quiet enjoyment. Warrants that tenants possession is free from interference from the landlord or his agents. Implied promise is inherent in the tenancy itself, so not a contractual right. Tenant does not have a right to a habitable premise o Landlord had no duty to repair/ensure habitability Exception: Courts were willing to say that short-term, furnished leases had a warranty of habitability. Landlord Tort Duties: o To disclose latent defects known to him: But doing so puts the burden of fixing them on the tenant, unless the tenant pretty literally had no time to have the defect fixed.

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o Not to repair negligently: Only if landlord chooses to repair. Landlord thus has a disincentive to repair, as he could be held liable for damages resulting from faulty repair. o To maintain common areas: Landlord must exercise reasonable care to maintain the common areas in a reasonably safe condition. o Public Areas: If you rent the premises known it is going to be used for commercial, public use, and you know about a latent or evident defect, youre liable.

Rights of the Landlord + Corresponding Tenant Duties: Pre-Javins

Landlord Right: Right to receive feudal duties so long as the estate exists. o Has to be paid even absent a K because implicit in the creation of a tenancy. o Corresponding Tenant Duty: To pay rent (feudal incidents) Originally, the tenants estate was in the land, not the building, so even if it burned down, he had to pay. Landlord Right: Right to reversion & right to inspect reasonably o Landlord can ensure that reversion isnt being wasted. o Corresponding Tenant Duty: To not waste the reversion Common Law Remedies: Landlord Remedies: o Eviction: Landlord could evict the tenant having to justify his actions. o Damages for waste on the reversion. Tenant Remedies: o Wrongful Eviction: If a tenant was wrongfully evicted, the tenant didnt have to pay rent and may sue to recover possession, or he may treat the lease as terminated and sue for damages for breach of the covenant of quiet enjoyment. Actual: Deprivation of the possession of the whole of the property. Partial: Deprivation of possession of part of the property; dont have to pay rent for that portion of the property (abatement).

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o Constructive Eviction: Landlord by conduct of omission or commission failed to perform a duty, substantially depriving the tenant of the beneficial use and enjoyment of the premises. Tenant Must: Give notice to the landlord, Provide the landlord reasonable opportunity to correct the problem, and If not corrected, surrender possession of the property within a reasonable time. o Doesnt apply to tenancies at will.

Modern Tenant-Landlord Relations: Post-Javins

Tenants Right to Habitable Premises: o Evolution to an Implied Warranty of Habitability: Field Codes included a provision that the landlord had to render the premises fit for occupation throughout the term: but this could be contracted around. Then, leases started to be viewed more like Ks. Then, some cities started to create housing codes. Yet, there didnt really help because only the city could enforce them (instead of the tenants). Right before Javins: Brown v. Southall: The premises had the housing code violations before the lease was signed, so the whole lease was void. Right before Javins: Edwards v. Habib: Habib had evicted Edwards because she complained and tipped off the city that the building was in violation of the housing code. He said he kicked her out in order to fix the property. Retaliatory Evidence: An eviction within 6 months of a tenants complaint is presumed to be retaliatorya violation of First Amendment right to petition the govt for redress.

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Rebuttable Presumption that places the burden of proving otherwise on the landlord. Difficult to prove in practice, so landlord bears the loss in doubtful cases.

o Saunders: DC landlord case Goal of Saunders: To create the implied warranty of habitability and a contractual overlay to landlord tenant law. Failed: the landlord won, because the court saw this as legislating from the bench. Court did recognize the issue of retaliatory evictions, but because the tenants did not win, that concept was not cemented. Tort Reform: timing of notice of latent defects Statutory Reform: Field Code Lower court (in Saunders, which is the same case, this is just on appeal) had rejected the idea of an implied warranty because they thought the legislature, not the judiciary, should create citizen remedies. Also, if it comes from the judiciary, many definitions of habitability, which makes predictability difficult for landlords. Warranty of Habitability Warranty of Habitability Defined: o Rule: Theres an implied warranty of habitability in every lease that cannot be waived, even expressly. Its not implied from the intent of the parties; its implied from the nature of modern housing itself, even absent a code. Tenants not longer need to claim constructive eviction. Extent of the warranty isnt the same in every jurisdiction. Traditionally, what was important in a lease was the land itself. Now, the structure is most important because its home, shelter, etc.

o Javins (1970): Creation of the implied warranty of habitability

o Policy:

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Trend toward interpreting leases as contracts, with the rise of the UCC, etc., give implied warranties of fitness for purpose/utilities. Tenant doesnt invest enough in the building to make it reasonable for him to repair it. Landlord-tenant relationship is closer to commodities situation, not a feudal situation.

Implied warranty seen in housing codes.

o Tenants duty to pay: Dependent upon the landlords performance of his duties. o Limitation: Only applies to residential leases. No implied warranty on commercial leases; policy justifications dont apply. o Limitation: Not adopted in all jurisdictions Determining whether habitability has been violated: o Look at the housing code: Any substantial violation is prima facie evidence that there has been a breach. Housing codes regulate such things as: structural elements; facilities; services; and the number of occupants per dwelling and/or bedroom. o Standard in the absence of code: Does the defect have a substantial impact on the health and/or safety of the tenant? A few minor violations will not be determined to be a breach: de minimus non curat lex (of little things the law will not take notice). What is this better than the remedy of constructive evidence? o With constructive eviction, you have to leave the premises. o Plus, if you lose the claim, you have to pay rent on the place you are now living in plus the rent you didnt pay. Setting a Claim in Motion o Notice to landlord Written notice is best o Declaratory Judgment

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Tenant would bring this as a preemptive strike against the landlord. Instead of waiting for the landlord to initiate summary proceedings for eviction because of rent withholding, etc., the tenant can go to court asking that the court declare the landlord has breached the implied warranty of habitability.

Then, the tenant could seek remedy from the court (i.e., repairs) But if the repairs are not completed in a reasonable time, theyre violations.

Or, the tenant could get the same remedies hed have under summary process: rent abatement, etc., May or may not be better for the landlord to go first; going first allows one to choose the court, exact timing, and framing of the issues.

o Summary eviction process: very specific notice requirements L serves T with a notice to quit, which terminates the tenancy. L then initiates a summary process action to recover possession by serving a summons and a complaint (which states the reason for eviction and the amount of rent due). L sets an entry date, by which he must file papers with the court. T then has time to file an answer, raising the defense of a breach of the warranty, and also raising any counterclaims (which are only permissive). Pretrial motions Discovery, trial, appeal, etc. If L wins, execution, notice of eviction, and actual eviction by sheriff. Different from arbitration because the decision here is reached based on cooperation and isnt binding until the parties come to an actual agreement. Tenants Remedies for breach: Tenant does not have to abandon property to receive relief, but may be able to, depending on the circumstances.

o Mediation: By consent of both parties

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o Construction Eviction: substantial inference w/ use and enjoyment (objective). Tenants right to terminate the lease is said to rest on the implied agreement of the landlord to maintain the premisesupon which the tenants promise to pay rent is dependent. The failure of the landlord to perform excuses the tenant from doing so. Tenant isnt liable for future rent, but is for time spent there. Tenant must leave the premises in order to receive this remedy. Requirements: Landlord must have notice of defects (plus a reasonable time to fix), and the defects must exist while rent is being withheld. Tenant withholds rent, so the landlord brings an eviction action. The tenant can then assert a breach of the warranty as a defense. The amount to withhold is difficult to configure: should be based on some rough comparison with other similar apartments. o Should be able to present the landlord/court with at least some basis for the percentage of the rent withheld. o A potential method of calculation: the cost of fixing the problem, prorated over several months. Safer to place the amount withheld into an escrow account in case the T loses. o Rent Abatement: If a tenant asserts a breach of the warranty as a defense in summary proceeding, he may get rent abatement. A tenant is liable only for the fair market value of the premises in its (debatably) uninhabitable condition. o Damages: Compensatory: Awarded for all annoyances, discomfort, suffering, actual moving costs, etc., that the tenant experienced during the lease because of the landlord (actual actions or omissions). Punitive: Potentially awarded where the landlord has wantonly or willfully disregarded the tenants health and safety.

o Rent Withholding:

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o Injunction or Specific Performance: Tenant could seek a court order for L to fix a problem. o Repaid and Deduct: T pays to have the premises repaired and then deducts those costs from the rent. o Housing Code Remedies: Anything specifically provided for in the code. o Landlords Tort Liability: Primarily for any sort of negligence, including how repairs are done, treatment of common areas, failure to disclose latent defects, etc. o Consumer Protection Laws: Some states might provide that breaching the warranty is unfair or deceptive trade practice in the sale of goods or services to customers, entitling the tenant to damages. (Triple the damages in Mass.) Landlords Rights in the event of tenant breach (nonpayment): o Can seek to recover possession: Self-Help: Physically barring the tenant from enteringhighly limited now. Summary Process: Allows for relatively quick judicial proceeds for landlords to eject. Landlords Rights in the event that tenant wrongfully abandons (moves out too early): o Accept Tenants Surrender of the Lease: lease is amicably terminated. o Re-lease the premises on the tenants account: OT (original tenant) is liable for OT Rent minus NT (new tenant) rent. o Sue for Damages: Hold tenant liable for the remaining due rent. o Note: Duty to Mitigate: When tenant leaves mid-lease, landlord has a duty to mitigate the damages. He doesnt have to attempt to re-lease the premises; rather, if he doesnt make reasonable efforts, the amount he recovers is reduced by the amount of damages he could have avoided. If he cant anyone, tenant is fully liable. If he finds someone OT rent NT rent.

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If he finds someone at a higher rent, OT is liable for any vacant time, but is free from liability otherwise.

o Doctrine of Commercial Frustration: Purpose for which the lease has been made has been frustrated by the circumstances outside the tenants control, beyond reasonable foreseeability of both parties, and mitigation by the tenant is unreasonable. Allows a commercial tenant to escape liability for the remainder of the lease Applied with hesitancy, as there mere existence of the lease isnt securing the continuation of business.

Transfers by Landlord or Tenant

Landlords Interest: Landlord can freely sell his interest in the property any time (it is a reversion). o Agreements with tenants transfer as well; tenant doesnt have to agree to the new landlord. Transfers of land usually are recorded at the registry of deed, so if the landlord doesnt know theres an interest clouding the title, that interest can be cut off. o Landlord is on constructive notice for what he would have seen had he walked the land prior to purchase. Even if the property is leased to someone the landlord was unaware because it wasnt recorded, the landlord cant break the lease (unless buy out of the K, etc.). o Very unlikely there would be no constructive notice, since the lessee is a store thats operating L1s premises. Tenants Right to Assign or Sublet Many leases prohibit a sublease or assignment without the landlords permission: o Commercial Leases: The L can only have a commercially reasonable objection to the sublessor or assignee focus on that particular piece of property.

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o Many courts say that the landlord can reject a residential assignment or sublessor arbitrarily because he has substantial interests in controlling to whom his property is leased. If there is nothing in the lease that prohibits assignment or subleases, the lessee may do so freely, reaping all of the profits. Sublease: something less than what the original tenant has, so when it comes to an end, it reverts back to the original lessee. o Implication: L has both privity of K and privity of estate with the original T; L has nothing with the sublessor. o If sublessor fails to pay rent, L would sue T (might add and any who hold on behalf of him), who remains liable to the L for rent. (T would implead sublessor) Assignment: all of what the original tenant has (both physical space and time) o Implication: L has privity of estate with assignee; privity of K stays with the original T. (L can sue either for rent, as both liable; TO because he has privity of K and TN because he has privity of estate) Right of Reversion Retained: There will be a period of time in the term of the leasehold when the tenant will again be entitled to possession, and thus it is assumed that this was a sublease, and not an assignment Right of Entry Retained (right to reenter and retake possession): The tenant transfers the leasehold to another tenant and retains a right of entry if a covenant is breached (i.e., rent is not paid). o Common law: such a transfer is an assignment, not a sublease, because T retained no right of reversion, but this is rather a means of enforcing the K. o A substantial number of modern cases hold that such a transfer is a sublease, and not an assignment, because there is a contingent reversionary interest found in OTs retaining a right of entry. Dumpors Rule: If you give permission once, you waive having to do it again when it next applies. o Give permission for one assignment, you have given permission for it always.

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o Exception: If the landlord specifically states this is a one time only approval. o Reason for this is to have fewer restrictions on an ownership interest; promotes free flow of business. Novation: A new K that subsumes prior K. Can occur via action rather than just explicit agreement by L. Fixtures: When lessees leave, they take their personal property (generally everything but what was there when they assumed possession). o Exception: if personal property has become a fixture. Fixture: An item that is attached in a fundamental physical way to the property so that it becomes part of the real estate. Automatically goes to the landlord. o Once something is fixture, it stays a fixture, even with a provision to the contrary in the lease. Certain things are irrefutably presumed fixtures: furnaces, etc. o Even if the tenant puts it in and theres an agreement that it is his, its still a fixture. Cant make something a fixture that isnt (e.g., lawn chairs) Exception for trade fixtures on commercial tenants: Can keep those fixtures if they leave only reasonable damages. Rent Control: The government can impose rent ceilings Bowles v. Willingham: Rent controls are constitutional o If you dont like it, dont rent out your apartment.

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Modern Land Transaction

Contracts for Sale of Land
Title in land can be transferred: o Deed o Will o Intestate Contract for the sale of land, must include: o Names of buyer and seller o Consideration: price to be paid o Description of the property: location, sometimes a name is sufficient if it is distinguishable and recognizable in the community (e.g., Blackacre). o Signature of party against whom enforcement is sought o Dont have to have a time of conveyance: jury can supply a reasonable time. Time is of the essence: Phrase that, if included, means that day that is stipulated has to be the closing date. If not included, court will allow date to be changed for a good reason. Even if phrase is included, the court will probably extend if the seller dies. o Must be a valid K: offer, acceptance, and consideration. o State of Frauds: All Ks for the sale of land must be in writing: Exception, Estoppel: There can be a valid oral K for the sale of land, but must convince the court in equity that is the (1) equivalent of a written K, and (2) there was reliance upon it. (Hickey v. Green) Doctrine of Part Performance: Satisfied by presence of any 2 of the following 3: B takes possession of the land. B pays all or part of the purchase price B makes substantial improvements to the premises 43

o Self-created failure of financing: If obtaining financing is a condition of the sale, B has the duty to seek financing diligently. Equitable Conversion: From the moment the K of the sale of land is executed, legal and equitable title in the property are split (assuming that K is valid). Legal Title: o Remains with the seller o Converts to personal property for the seller (monetary interest) Equitable Title: o Vests in the B, even though deed has not been conveyed yet. o B has the enforceable title on the land. o Becomes the Bs real property. If seller dies before closing date: o Does not void the K o Sellers estate with transfer title o Heir of personal property gets the proceeds of the sale o Even if K is broken after the seller dies, the heir of the personal property inherits the property because a snapshot is taken at the sellers death. If buyer dies before closing date: o Inheritors of real property can demand conveyance. o Inheritors of personal property have to pay for it. Uniform Risk of Loss Act: Makes the burden of insurance stay with the right of present possession (seller) until closing. o Common Law Exception: In a number of states the holder of equitable title (buyer) to insure the property. Installment Sales Contract: Sell himself, finances the sale for buyer (usually when the buyer doesnt qualify for a loan). Buyer pays in installments and has the right to present possession. o Equitable conversion occurs at date of sale/move in and then closing doesnt occur until buyer has paid all of the installments.

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But, if the buyer misses a payment, he is essentially evicted and house belongs to the seller, and loses everything that he put in. All payments thus far are considered mitigated damages, he gets nothing back. o There was a case that held that this wasnt trueB could get something back because the installment sales K was functionally a mortgage, I think.

Duty to Disclose: Moving from, Buyer beware, to seller declare Must disclose latent physical defects, not noticeable under reasonable inspection. Old Rule: Seller didnt have any duty to disclose, he just couldnt lie about the condition. o Stigma (the ghost case): you have a duty to disclose. NJ/MA: Duty to disclose regarding neighboring lands and toxic waste. Duly Recorded: Implied Warranty of Marketable Title: Seller makes an implied promise that on the day of conveyance (not the day the K was executed) he will convey marketable title, free from all encumbrances and clear of defects. o Defects include mortgages, liens, easements, covenants, and privately negotiated use restrictions. o Buyer can always take subject to an encumbrance, but he has the right to title free of encumbrances. Express waiver: If B waives right to contest an encumbrance in K. Violations of Marketable Title: o Defect: anything that opens up the hazard of litigation (Lohmeyer v. Bower) o Cloud: Something that substantially calls into question Ss title and has power to void the entire transaction. o Flyspeck: Something that wont affect the title. Ex: man who sold the property in 1890 and didnt transfer dower rights. Violations of Public Law as Encumbrances: Only if such violation is eminently enforceable o Violations of Zoning: Encumbrance o Violations of Building Code: Not an encumbrance. Marketable Title:

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o Zoning Ordinance: Not generally an encumbrance unless it is passed after the buyer signed the K or it would frustrate his proposed use (Lohmeyer, pg. 479) But here, there judge was doing his buddy a favor: generally zoning ordinances apply uniformly so they cannot be considered an encumbrance. o Environmental Defects: Merely defects on the premises, and not o the title, unless the EPA, or some other agency, files a lien against the property to enforce its determination of a violation. Private Law Restrictions (covenants, easements): o Unrecorded Easements: If they decrease the value of your property, they are a cloud on the title (e.g., easement for a neighbor) o Easements that are visible or known to the buyer: not a cloud on the title (easement to the power company for service). Outstanding Mortgage on the Land: Cloud on the title Buyer-Created Cloud: Buyer cannot create a cloud on the title to get out of it. Merger by Deed: All promises in the K merge into the deed after the closing has occurred. o Essentially means that any further claims are through the deed, and not the K. Title Insurance: An insurer comes to the opinion that the title is valid, and gives the insured an agreement to indemnify the purchaser if the insurer is mistaken and damages occur as a result. o Doesnt include defects revealed by an inspection of the premises, claims of possession not shown on the records, and govt regulations affecting use not shown. o Only covers the amount paid, not increase in equity from improvements. Release/Declaratory Judgment: Can be used to remove a cloud on the title. As Is Clause: Generally to be enforceable if it is included in the signed K. o Ex: An agreement to take a quitclaim deed. Warranty of Quality: Applies only to purchase of a new house from a builder of houses who actually built the house.

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Implied Warranty of Suitability: Prevents against making property unsuitable for its intended purpose. Seller has the reasonable right to cure encumbrances/clouds. Adverse Possession: According to the majority rule, seller must be able to provide good title, meaning that if even a portion of the title resides in adverse possession, title is marketable.

Three circumstances that render title unmarketable:

Encumbrances: o Marketable title mans an unencumbered fee simple. o Servitudes and mortgages render title marketable, unless the buyer has waived them (which they buyer does in most circumstances).

Zoning: Title is unmarketable if the property violates a zoning ordinance, if not a PENCU.

Title Search: The Deed

Deed: The instrument that passes legal title from the seller to the buyer. o Deed conveys what the grantor has. o Destroying deed has no effect, as long as you can prove that it existed. Includes: o Grantee-grantor o Signature of grantor o Description of whats being granted o Usually some price to make the grantee a BFP, but not the full purchase price no price is necessary. o Express warranties. Deed is for the rest of the world: o Do not need a deed in order to make it an effective sale. o But statutory rules make require recording in order to protect against future claims to the land. Must be Lawfully Executed and Delivered:

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o Lawfully Executed: must be in writing, signed by the grantor, and comporting with all statutory prerequisites.

o Lawfully Delivered: Could be satisfied when grantor physically or manually transfers deed to grantee. But does not require actual physical transfer of the instrument. Standard of delivery is a legal standard: Did the grantor have the present intent to be immediately bound, irrespective of whether or not the deed itself has been literally handed overhas present intent to part with legal control. o Delivery of the Deed: Intent to convey: physical delivery creates a rebuttable presumption that there was intent to convey. Acceptance (implied) Ritual transfer of something Doesnt have to be consideration if its a gift. Conditional Delivery: Condition doesnt destroy delivery of land. But unless you preserve the conditions by giving the deed to an escrow, preserving the conditions in a habendum clause, or creating a trust, the conditions evaporate upon delivery of the deed. Conditions end if only the grantor and grantee are involved in the exchange. Considerations: Not necessary, but a donee is not protected against a subsequent BFP Habendum Clause: Signifies to the estate that the grantor is granting to the purchaser. o Can include a condition of racism, or other conditions, etc. Six General Warranties of Title: o Covenant of Seisin: Grantor is lawfully seized of the premises in fee simple,

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o Covenant of Right to Convey: Grantor has good right to convey the fee simple, o Covenant of Encumbrances: Premises are free from all encumbrances, o Covenant of General Warranty: Grantor (and heirs) will protect grantee (and heirs) from subsequent claims to title, o Covenant of Quiet Enjoyment: Grantor (and heirs) guarantee quiet enjoyment (against title) and possession by assertion of superior title. o Covenant of Further Assurances: Grantor (and heirs) will sign any instrument necessary for further assurance of title to the grantee (and heirs). Types of Deeds: o General Warranty Deed: Normally contains the usual covenants. It warrants title against defects arising before as well as during the time the grantor had it. o Special Warranty Deed: Normally contains the usual covenants listed below; however, the warranties cover only defects arising during the grantors tenure, and not defects arising prior to that time. Hence, the grantor guarantees only he has done nothing to make the title defective. o Quitclaim Deed: Warrants nothing. The grantor merely transfers whatever right, title, or interest he has, if any. A quitclaim deed is useful in clearing an apparent defect in title, where the grantor is not pursuing the claim. o Statutory Warranty Deeds: Statutes in a number of states provide for shorten forms of deeds, and in many cases, specific words of conveyance are deemed to include certain enumerated covenants. Ex: the words grant, bargain, convey, or sell often, by statute, presumptively connote general warranties of title. Estoppel By Deed: When a grantor purports to convey land he does not currently own, and subsequently acquires title, title passes to the grantee under the earlier deed. o Grantor is estopped from claiming that the earlier deed is null and void. Void Deeds: And deed that is forged, fraudulent, or otherwise does not comport with the requirements of a deed (i.e., not conveyed properly).

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o If there is a void deed in the title: Subsequent BFPs that rely on it are not protected as BFPs, even if they had no notice. But they could argue in equity that a subsequent BFP should be allowed to cutoff title if the actual owner was aware of the void deed and did nothing to give notice to subsequent grantees. o If deed appears valid: Grantee will likely be able to get a mortgage or sell the property. Thus, the original grantor fighting this deed should attach something to the deed at the registry to indicate a declaratory judgment action is pending. The longer the grantor waits and knows that the grantee has an indicia of title, the less likely hell be able to get it back and prevent clouds on the title. Constructive Trusts: If someone commits fraud in order to have a deed conveyed to him, it creates a constructive trust. o Original owner retains equitable title. o The fraudor is constructively the trustee, and has to return the property to the owner immediately

Mortgages:
o Definition: Buyer conveys a mortgage deed to the lender, which grants the property to the lender if any of the state condition are violated: o Conditions include making payments on time, as well as certain upkeep of the property (as the bank has an interest in the value of the house). o Technically, any violation of the mortgage would grant the lender ownership in the property, but equity requires the lender to go through a foreclosure process. o Mortgage Deed: o Buyer is the mortgagor/grantor, lender is the mortgagee/grantee. o Recorded the instant B records her title to the property, so it will appear on a title search. Mortgage deed shadows the main deed.

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o Incorporates all provisions of a mortgage K. o Bank has priority over everyone who may be trying to collect from B. The interest springs into the present so that the bank gets a fee simple absolute when the buyer defaults. (Springing Executory Interest) o Equity in House: Money youve put in + principle paid + increase in property value o Statutory Period of Redemption: In many states, by statute, borrowers have a period of time after judicial foreclosure during which they can redeem from the purchaser at foreclosure sale. o A two year-period is typical. o Policy: These statutes were enacted to protect debtors by giving them more time to come up with the money and save their property. o Equity of Redemption: Allows the borrow to avoid foreclosure by paying off the amount due on the loan, plus interest and other expenses. o Originally, if B didnt make a payment on the agreed date, the land reverted to the lender. Equity intervened, so borrowers have a right of redemption. Foreclosures: o Bars the equity of redemption and pay off the remaining debt, then receives any remaining equity. o Four Types of Foreclosures: o Foreclosure by deed without court: Owner automatically ejected. Requires showing the deed to the police, and evicting the current owner. Lender owns the land, and all debt is wiped away. Typically not done if land is worth a lot more than the debt. Bank must demonstrate to the court that it has been equitablegiven notice, time, etc. Foreclosures end the equity of redemption so that the borrower can no longer redeem the property.

o Foreclosure by deed in court:

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Court issues a declaratory judgment saying that the mortgage deed id a valid deed for the property. Bank takes the deed and forgives the debt. Does not go to court, but have to follow certain statutory procedures designed to give an equitable proceeding. Thus, is subject to equity as if it were in court.

o Foreclosure by sale by statute:

If lender sells the property for less than the remainder of the debt, it can seek a deficiency judgment, which requires a separate judgment. If lender sells the property for more than the debt owed, the excess reverts to the mortgagorminus the cost of the sale.

o Foreclosure by sale by court: Same as sale by statute, except the court orders the sale. o Bank must do equity to receive it: o Must act in good faith: Bank must get a fair pricedoesnt mean market value. If the sale price shocks the conscience of the court, the court can intervene. o Must do Due Diligence: There must be sufficient legal notice of the sale, as to attract possible buyers. o Bank cant just try to sell for the amount of remaining debt, unless this is the fair price. o Bank needs to work with the B and try to compromise before foreclosing. o Second Mortgage: o Lender receives a mortgage deed on property that is already mortgaged. o If borrower defaults on the loan, lender only gets money from house after the primary lender is paid. Thus, second mortgages generally come at higher interest rates because the lender is taking more of a risk. o Defaulting on Second Mortgages: o Marshaling: An equitable doctrine used when a borrower defaults on a mortgage loan, which requires selling the property that will have the least impact first. 52

o Rule: In equity of marshaling, land has to be sold in order to that minimizes impact. o Typical Situation: A subdivider obtains a mortgage for an entire subdivision. Purchasers of each parcel obtain mortgages for the property, but such mortgages are considered second mortgages since the land is already subject to the subdividers original mortgage. Subdivider defaults, so the primary lender begins to foreclose: Unsold parcels first Then parcels sold last, in reverse chronological order o Protects the first people to buy Also, if lender has mortgage on two pieces of property, and one of them has a second mortgage, equity requires the lender to first foreclose on the property without the second mortgage, so as to minimize the impact on the owner of the second mortgage.

Title Assurance:
o Duly Recorded: Will appear in a title search. o Requires: the grantee record his deed, and does a full title search to ensure that there is a complete record of conveyances, and that all previous owners duly recorded. o Deed must be liked to the chain of title: The sequences of recording instruments capable of giving record notice to subsequent takers. o Wild Deed: If a deed entered onto the record has a grantor unconnected to the chain of title, the deed is wild deed. Thus it is incapable of giving record notice of its existenceits a nullity that the court will refuse to honor. o Common Scenario: o O conveys Blackacre to A, who does not record. Then O later conveys to B, who does not record. O then leaves and cant be found. 53

o In battle between A, who got there first, and B, who was second, who wins? If B is a BFP in a Notice Jurisdiction: B wins regardless of whether or not she records first. If B is a BFP in a Race-Notice Jurisdiction: B wins, if she records properly before A. If B is in a Race Jurisdiction (BFP or not): Whoever records first wins. o Common Law: o First in time, first in right. o Whoever receives a valid deed for the property first is the owner, regardless of whether the deed was recorded. But, a grantee only receives what a grantor had to grant. If grantor had previously granted to someone else, any subsequent grantee will receive nothing, even if the prior deed was never recorded. o Policy: Common law rule leaves a subsequent BFP with nothing, unless there is a statutory remedy. o Deed in/Deed out: Buyers responsibility to look up and down the chain of title: generally 50 years, but Plater says to go back as far as possible. o Common Law: First in time rules. o First grantee in time prevailed over subsequent grantees. o Race and Notice Statutes: Meant to encourage people to record. o Remember statutes are an overlay to common law for subsequent BFP: A donee always loses against a BFP. o Race Statute: First claimant to record wins o Rule: Record first and you win. o No Bona Fide requirement. Actual notice of prior claims is irrelevant, and who knew what is irrelevant. o Policy: Efficiency. However, this encourages shifty behavior at times. o North Carolina and Louisiana.

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o Notice Statute: A subsequent BFP is protected even if not recorded, as long as he didnt have notice (actual or constructive). o Bona Fide: Had no actual, inquiry, or constructive notice. Two requirements for BFP to retain title: Purchase for Consideration o No Protection for Bona Fide Donee: If BFD records, she is protected against subsequent BFPs because they would be on notice. o If BFD is challenged by a BFPs unrecorded deed, she is not protected. No actual or constructive notice of any prior conveyances. o Constructive Notice: What the purchaser would have found had she done a careful title search in the registry deed. o Policy: Less efficient, but protects rightful future purchasers. o Race Notice Statute: Same as Notice Statute, but second purchaser has to duly record in order to have valid title o A subsequent BFP is protected against prior unrecorded instrument only if he records before the prior instrument is recorded. Until the subsequent purchaser record, the common law prevails, and the property belongs to the first purchaser, even if he has not recorded his deed. o If there are two purchasers and second purchaser had no notice at time of sale, then first purchaser records first, second purchasers claim is cutoff. o Three Requirements for Second Grantee to Retain Title: Purchase for consideration No actual or constructive notice Duly records title before any previous grantees record.

o Lis Pendens: Notice of pending action on title recorded in registry of deeds. o Reserves a Ps right in property and puts others on notice.

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Private Land Use Controls

Title Conditions:
o Attached to title, in habendum clause o I convey to you and your successors, so long as o Defeasible fees o Private land controls that, if violated, title evaporates.

Easements
o Definition: The grant of interest in land, less than fee simple, which entitles a person to use of the land owned by another. o Dominant Tenement: The land benefitted o Servient Tenement: The land burdened (usually adjacent to the dominant tenement) o Affirmative vs. Negative: o Affirmative: Most common easements. They grant a right to go onto another persons land (servient land) for a use. o Negative: Owner of a negative easement can prevent a servient landowner from doing some act on the servient land (4 classic easements recognized in Eng.: blocking light, air, removing support, water in an artificial stream). Note: Negative easements can only be created expressly in a writing signed by the grantor. No such thing as a prescriptive negative easement. o Appurtenant vs. In Gross: o Easement Appurtenant: The easement benefits its owner in the use of another tract of land Runs with the land. Attached to the dominant tenement and generally passes to any subsequent purchaser. Exception: If the grant of an easement appropriating limiting terms, however, it will not pass to subsequent owners of the dominant tenement. Common Law Assumption that the easement is appurtenant, unless it is clear otherwise. 56

Ex: Whiteacre is located between Blackacre and a public road. O, owner of W, conveys to A, owner of B, a right to cross W to reach the public toad.

o Easement in Gross: An easement that does not benefit its owner in the use and enjoyment of his land, but merely gives him the right to use the servient land for personal or commercial use and gain. Personal easement. Presumed to not be transferable, though the law is in flux on this point. Exception: Transferrable if it is for commercial purposes. Ex: O, owner of G, grants to H Billboard Co. the right to erect a sign on G. H owns no land. The easement is in gross and can be assigned by H if the parties so intend. If O sells G to A, the burden of the easement passes with the ownership to A. Profits: implied easement over a servient land for the express purpose of removing natural resources (wood, hunting). Usually an express grant, and is generally not assignable. Generally assumed to be transferrable. Commercial Easement: (Ex. To use a billboard)

o Conservation Easement: An easement to preserve open space. o Riparian Easement: Water easement. Right to reasonable use of the water and water free of pollutants. o Creation of Easements: (see chart) o Prescription: Just like Adverse Possession Requires: o Implication: Easements implied out of private intent of parties with a prior use: Open and notorious use Continuous use for a statutory period Actual use Adverse/hostile, without servient owners permission

Can Talk: just like AP

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Occurs at the moment of subdivision, but dominant tenement owner must get court declaratory judgment to secure title. When a previous use of that land implied that the easement would be granted or reserved o Ex: A owns lots 1 and 2, and uses lot 1 to get to 2. A sells lot 2 to B.

Two elements: o Previous use had been apparent o The parties expected that the use would survive division, because it is reasonably necessary to the dominant lands use and enjoyment. Do not have to pay for it if it was found to be implied.

Easements implied out of private intent without a prior use: Occurs at the moment of subdivision, but dominant tenement owner must get court declaratory judgment to secure title. Occurs in a land-locked setting. Easement of a right of way will be implied by necessity if the grantor conveys a portion of his land with no way out. o Implied by reservation when grantor forgets to leave himself a way out when he gets rid of his land.

o Easements implied out public policy: Necessity Strict landlocked necessity: Usually because of an act of God or human error (self-created hardship): owner of Land B no longer has means of getting there. Strictest Necessity: No other possible way of getting there. o Thus, it terminates when the necessity ends. Policy: Public policy against landlocked land grants B an implied easement over Land A. Not based on the intention of the parties.

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Must pay the servient tenement Matthews v. Bay Head Improvement Assn.: Public right to beaches require easement from public on the associations land. Did not have to pay.

o Conveyance of an Easement by Grant: Must be in writing: For this easement to endure for more than one year, it must be in a writing that complies with the formal elements of a deed. o Easement by Reservation: A conveys lot 1 to B, but reserves an easement for him or someone else on lot 1. o Easement by Dedication to the Public: Express easement for the public to have a use of your property. Formally accepted by a representative of the public. o Estoppel: If you relied on the owners permission, to your detriment, they can be estopped from denying that you had an easement. Ex: Holbrook v. Taylor: used license to access road to build house, landowners allowed the building of the house then revoked license to access house. Landowners were estopped from blocking access. o Divisibility: Generally do not have the right to subdivide an easement beyond its original terms, except through natural evolution (see extension/scope). o May be able to divide an easement appurtenant if you stop short of overburdening, as they generally run with the land. o Funnel developments buy an easement across one lakeside property to funnel thousands of people that live in an adjacent development to the lake. Dividing the easement too much invites environment lawsuits concerning the health of the law. Burden on easement is too much. o Extension/Scope: Generally there is a rule that an easement can evolve reasonably over time. o Ex: easement for a horse and buggy now applies to cars. o Also true for an increase in population: keeping in mind the balancing of rights, thought.

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o Termination of Easements: o Express Termination: by a written release of dominant owner. o Violation of a Condition on a defeasible easement. o Oral release: Not valid unless estoppel applies or abandonment (act+intent) o Abandonment by dominant tenement. o Destruction of servient tenement o Taking of servient estate or easement by the government (eminent domain) o By the terms of the Easement itself o Unity of Title: an easement extinguished between two parcels if they come under common ownership. It is not automatically revived by a subsequent division. o Misuse: Brown v. Ross: a dominant tenement owner cannot extend an easement for Land B to another parcel, Land C, that he also owns. Misuse of easement is a trespass Overburden: Specific type of misuse. Ex: funnel development

o Statute: some states require re-recording. If the easement is not re-recorded in interval stated under the statute, it is automatically extinguished. o Necessity is Gone: Ex: flood waters recede, or need for an easement by estoppel ends (no longer need to enforce license for equitable reasons) o Adverse Possession: cuts off title of previous dominant tenement. o Liability: The individual who maintains use of the easement is liable.

License: Permission to use land that is fully revocable at anytime.

o License is a K masquerading as an easement. o Licenses becoming easements: o If a licensee in exercising his license, and in reasonable reliance upon representations made by the licensor as to the duration of the license, has made expenditures of capital or land so that it would be inequitable for

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the license to be discontinued, the license becomes an irrevocable easement. Based on estoppel May terminate when it is no longer relied upon, or the owner has realized his expenditures. o If violated, you get K damages.

Covenants:
o Definition: a promise to do or not do something related to land. More modest than an easement, and begins as a contractual limitation regarding land. o All covenants, except the covenant of quiet enjoyment, runs from K law, and not estate law. o Affirmative or Restrictive: o Restrictive/Negative: A promise to refrain from doing something related to land. Ex: I promise to not build for commercial purposes on our land. Ex: I promise to maintain our fence, water our common garden, or pay an association fee. o Creation: Typically created expressly in writing. o Cannot be implied, cannot arise from prescription. Exception: Negative Reciprocal EasementCreated from subdividers implied promise to burden all lots in a subdivision with a common uniform requirement. If covenant was accidently left out of some deeds, they can be implied later. o Flex Provision: Allows you to change the covenant. Otherwise it cannot be change. Woman moves into the condo with her dog. Later, a no-pets covenant is addedthe dog must go because she was on constructive notice that the covenant to could be changed to include a no-pets exclusion. o Affirmative Covenant: a promise to do something related to land

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o Types of Covenants: o Express: Covenants run with the title if achieves the five requirements (see below). o Implied Negative Reciprocal Covenants: Burdens all lots in a subdivision with the same requirement, which achieves uniformity. Two Requirements: When the sales began, subdivider had a general scheme of residential development, which included the D lot now in question The owner of the lot in question had notice of the promise contained in the prior deed (inquiry, constructive, or actual). Ex: Residential covenants are uniformly applied even if it doesnt make it on some of the deeds. Inquiry Notice: Knowledge of covenant if you look around the neighborhood. o Sanborn v. McClaine: actual notice doesnt matter. Should look at neighboring deeds. Only enforceable by equitable remedies/injunction, and not money damages. o Covenant by Estoppel: If you enforce a covenant against another property, they can enforce it against you. Seen with AP. o Flex Covenant: Has to exist at the time of subdivision, or can be passed later by 100% vote to pass a flex covenant. Generally requires 66% or greater approval. Generally a good idea, otherwise see: Rick v. West: Hospital holdout.

o Running with the Land: The point of covenant is to shape the use of the land forever. Between the original covenanting parties, contract law rules. Between subsequent owners, however, property law rules: think, privity of estate. o Liability: Successors to the Original Promisor can be sued only for equitable remedies and not money damages, unless there was both Horizontal Privity of K and Privity of Estate at the time of covenanting.

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Horizontal privity: At the time the original parties enter into agreement, those parties share some interest in the subject land independent of the covenant (landlord-tenant, mortgagor-mortgagee, holders of mutual easements, etc.) If there is no horizontal privity, the only person who can be sued for money is the original possessor. Absence of horizontal privity is why many burdens will not run with the land.

Vertical Privity of Estate: Characterizes the relationship between the original party to the covenant and the subsequent owner. To be bound by the covenant, the successor must hold the estate through non-hostile nexus with the original promisor. Strict vertical privity of estate: Requires that the successor hold the estate in fee simple absolute in order to be subject to the covenant. If there was no privity of estate at the time of covenant, cannot be sued for money. Exception: Third party beneficiaries (i.e., homeowners association). o Rule: If a covenant is made and intended to benefit a thirdparty, that party can sue to enforce the covenant (but they cannot be sued).

ExampleHorizontal and Vertical Privity: A, B, and C are neighbors. They make a covenant holding that no one will make fences in their front yard. They come together and make a covenant, then record that covenant on their titles. Two years later, A, B, and C deed to D, E, and F. There is vertical privity between all grantors and all grantees. Horizontal privity: o If A, B, and C have a common interest in land independent of the covenant (like common ownership in a private park),

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they have horizontal privity and subsequent purchasers can sue one another for money damages and injunctive relief if the covenant is breached. o If A, B, and C have no common interest in land apart from the covenant, they have no horizontal privity of estate and subsequent purchasers can sue for only injunction. o Benefit: Runs even without privity of estate. So anyone with standing can get specific performance. o Note: If covenant runs with the land at law, it runs with the titlean alien chain of title (AP) is not likely to be bound by a covenant. Although, id the AAP had enforced the covenant against someone else, they would be equitably estopped from denying its existence, and There is a stronger argument for neighbors that they were not on notice that AP was cutting off their covenant rights. o Government + Eminent Domain: Government must pay people who have rights based on covenant, easement, etc. o Covenant Burden Running to Successor: 5 Requirements (WITHN) o Consideration (promises exchanged) o W: Writingoriginal promise between A and B must have been in writing. o I: Intentoriginal parties, A and B, must have intended that the covenant would run. Me, my successors, and assignees. Courts have been rather liberal in finding intent. o T: Touch and Concernpromise must affect the parties legal relations as land owners, and simply as members of the community at large. Cant be purely personal. Plater Test: Affects the value of the land of the promisee. Sufficient: Paying a homeowners fee Insufficient: Color restrictions

o H: Horizontal and vertical privityboth needed for the burden to run.

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Vertical Privity: If you have it, any successor can sue any other successor who is violating the covenant for injunctive relief. Horizontal Privity: If you have it, any successor can sue any successor who is violating the covenant for money damages and injunctive relief.

o N: NoticeSuccessors must have some notice of the promise when the took the land. Burden always requires notice: At least inquiry notice, even in implied equitable covenants. o Covenant Benefit Running to Successors: Four requirements (WITV) o W: Writing o I: Intent o T: Touch and concern land o V: Vertical privity Horizontal privity is not required in order for benefit of covenant to run with land. o Modification of Covenants: o By 100% vote o By a flex covenant o Courts o the basis of changing conditions: has to be extreme, because courts are fairly unwilling to overturn covenants o Compensation for resulting harm may be awarded as a result of modifying or terminating servitude. Equity can come into play. o Subdivision of parcel with a covenant: covenant applies to both parcels. o Covenants vs. Government: Covenants can do what the government cannote.g., be racists. o Limits: Shelley v. Kraemer: Private parties may voluntarily abide by terms of a racially restrictive covenant but may not seek judicial enforcement, as such would constitute a state action, and thus a violation of the Fourteenth Amendment. o Covenants should be clear: If unclear or ambiguous, court will find for free enjoyment. o Court will not read restrictions in a covenant by implication. 65

Damian of Molokai Case: If there is a disproportionate effect/unreasonable burden then there is a public law burden on private law for reasonable accommodation.

o Termination of Covenants: o Express Terms: This covenant is valid for 50 years. o Adverse Possession: Covenants do not run into alien title. Issue of notice to neighbors of the termination of their covenant rights. Also, remember Covenants by Estoppel. Intent + Action + written notice of abandonment recorded in the registry signifies abandonment. o Unreasonableness o Functional Obsolescence: Radical change in the nature of the neighborhood so as to nullify the covenant. Has been shown to be very difficult to prove. o Unconstitutionality of Enforcement: See Shelley v. Kraemer o Illegality: Molokai o Zoning Ordinance: Statutory authority is stronger. o Prescriptive Easement: Requires greater action/notice, and is thus stronger. o Mutual Recession: Must be recorded o Novation: Subsumed by a new K that is duly recorded. o Latches: Equity will estop you from specific performance enforcement of a covenant if you have unfairly waited too long to attempt enforcement. May still allow for money damages if you have horizontal privity. o Flex Covenant: Vote to change or terminate. o Statutes: Re-recordation requirements. Statute that makes that covenant illegal

o Abandonment: Abandonment does not abolish the convent.

o Eminent Domain Condemnation: Must compensate land owners for the value of the covenant. 66

o Merger: Does not terminate a covenant, as is the case with easements.

Equitable Servitude: Definition: A promise that equity will enforce against successors (accompanied by
injunctive relief).

According to Plater, same as covenant, its just a matter of remedies.

Four Requirements: WITN (WITHN with Horizontal Privity Requirement) o W: WritingGenerally, but not always, the original promise was in writing. o I: IntentThe original Parties intended that the promise would be enforceable by and against assignees. o T: Touch and ConcernThe promise affects the parties as landowners. o N: Noticethe assignees of the burdened land had notice of the promise.

Public Land Controls

Nuisance:
Definition: An unprivileged interference with a persons use and enjoyment of their land. This is torts for property law. o Policy: Internalizes costs of industry into the industry. Could be enforced by government by that would interfere with free market. o P bringing an action must have a property interested affected by nuisance. Remedies: o Injunctions are most common, but must show that money damages will be inadequate. Money damages: Reduction in property value. No award of punitive damages unless willful, wanton, malicious. Other damages available are: pain and suffering, mental anguish, loss of quality of life. Permanent Injunction: Can include reduction of what youre doing, or not doing, as to cause the harm, in certain conditions,

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Can sell the injunction back to the tortfeasor.

Mix of damages and injunction

Three ground for nuisance liability: o Abnormally dangerous activities (strict liability) o Negligence For liability, P must show: Harm or serious risk of harm o Private: to Ps use of land o Public: to public health safety, morals, and rights of passage. o Intentional Causation The Ds actions were unreasonable (balance of utilities/equities)

Unintentional Private Nuisance: Protects the rights of use and enjoyment of the land. o Are the Ds actions unreasonable? o Requires substantial interference with the use and enjoyment of your land: would bother a reasonable sensitivity. o Must show actors fault. Unintentional result of negligence, reckless or abnormally dangerous action: Harm or risk of harm Causation Breach of duty of reasonable care Proximate Causebreach caused harm

o Estancias Dallas Corp. v. Shultz: Air-conditioning case. The equities of the case should be balanced against one another in order to determine whether an injunction should be granted. Found for P. o Defenses: Assumption of the risk State of the Art: All alternatives used. If youre using the best tech. available.

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State of the Industry: Custom and usage was followed. Balance of Utilities: Compares the gravity of the harm (includes: extent and character of harm, social value of Ps use, suitability of Ps use) vs. utility of actors harm and impracticality of not doing harm. Not a calculation of damagesusing in assessing a finding of fault.

Coming to Nuisance: The D was there first, then you came.

Intentional Private Nuisance: o Ask if Ps harm is unreasonable o Must prove: Harmunreasonable harm Causation Intentioncivil intention Purpose of causing the harm? Unreasonable Harm and Intent (not actual malice): Substantial certainty of harm is enough. o Harder to prove intentburden on P. o Requires substantial interference with the use and enjoyment of your land: would bother reasonable sensitivity. o Balance of Utilities: Only factored in after liability is found, and is thus used in assessing remedies/whether or not to grant injunction.

Public Nuisance: An unreasonable interference with a right common to the general public. o Applies to any action taken by a party that disrupts the public morals, health, safety, welfare, freedom of travel, or free access to water. o Suit as a Private Individual: Must show special injury Is not estopped by coming to the nuisance. If the nuisance existed before, then: Special Injury: Must show some special harm, different from other members of the public. Balance of private/public needs.

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Boomer: Cement dust vs. something caving in your room. Cement dust is a uniform injury, caving in a room is very specific. Spur v Webb: The smell and presence of flies was a special harm. However, because Spur came to the special harm, equity will not enforce an injunction, unless Spur pays the money to move the company.

Lateral and subjacent support: Neighbors have the duty to maintain lateral support to neighboring lots to the extent of natural support. Means no duty to protect structures on the land from subsidence.

Notes on Nuisance: o Halfway houses: not usually considered nuisances. o Doesnt protect abnormally sensitive uses, just ordinary ones o Spite fences are usually nuisances o Ugliness is not normally a nuisance o Blocking sunlight or air? Maybe. o Do they need it for special use? Solar panels? Trespassif intent, you will Pollution can be a trespass (physical particles)but it must be intentional. Nuisanceif intent, balancing process: but balancing only comes after finding of liability in intentional nuisance. Trespass v. Nuisance:

Public Law, Five Questions for Government Action:

o Authority: What the action by statute? Does the taking fulfill the prescribed criteria in the statute. o Proper Public Purpose: o Health, safety, welfare: must show specifically o Not a poison purpose: ex. Drive down values for eminent domain taking. o Balance of Public Harms: Public has right to clean water, etc.

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o Rationally Related: Rational nexus between means and ends o The specific condemnation must be reasonably related to accomplishing the proper public purpose. If party alleges irrationality, burden of proof is on government to allege rational relation. o Test: Whether a rational official could have thought that this action served the purpose. o Public Harms: environmentalism, tort claims. o Usually the argument against ED takings: To Dispute This: Must allege that the decision was arbitrary, capricious (impulsive), an abusive of discretion, or otherwise contrary to law. o Private Burden: No oppressive burden on individual private property rights. o As long as the govt pays, this shouldnt be an issue. o Also must look at public burden: interstate commerce, environmentalism. o These first four are substantive due process issues o Procedural Due Process: o Matthews v Eldridge Balancing Test: Private interests, public interests, risk of error. Bowles v Willingham: A good attorney would have argued that the risk of error by using less process is huge. The people have no way of knowing how $90 figure was chosen. o Sufficient advance notice o Opportunity to be heard o Given time to challenge the decision on authority, purpose, etc. o Given access to the information and process that was used in the decision. o Agency followed its own administrative procedures.

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Eminent Domain:
o Police Power: o The power of every sovereign state to regulate private property, persons, and rights for: Health, Safety, and Welfare

o Every state government has this power, but the federal government does not. o Definition: The power to take away private property for public use. o Compensation: As long as the govt compensates for the taking, this is an accepted right. o Fair Market Value: If all of your property is in the takings line, you get fair market value for it. If some of your property is in the takings line, you get fair market value for it, plus the decrease in the value of the whole land. If you are outside of the takings line altogether, you get nothing, even if there is a decrease in the market value. Exception: If you can prove nuisance, that is a taking and file claim of inverse condemnation (see below). o In the past: ED cases were decided with an overwhelming presumption of validity as long as the govt was willing to compensate, but this is changing. o Plater n TNTaking from a private entity to sell at a profit to other private entities is legal on its face. Farmers have no defense, except that the same agency has condemned 250 acres of land previously for similar purposes and only developed 14 of themrebuts the presumption of validity. o Taking from one private party for another: Heightened scrutiny o ED of private land for another private party must be necessary to the purpose of the project as it was designed.

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o Private entity must remain accountable to the public (restrictive covenant that they must stick to the plan). o Kelo v. New London: NL proves its case, even under heightened scrutiny. o Effects of Condemnation: o Government takes title o Removes all covenants and easements on the land (will need to be compensated for this)

Inverse Condemnation:
o Definition: An action of the govt results in a taking, even though the govt didnt institute the procedures and declare it as such or compensate for the taking, which prompts a private citizen to bring an action against the government to force government to condemn and oay. o Can be either a physical taking or a regulatory taking. o If use would ripen into a prescriptive easement, the govt must pay. o If planes are coming into your private airspace, even conservative judges will make them pay: the true cost of the easement is the harm it inflicts on the land. Thus, you will get the value of the easement + consequential damages to servient estate. o Or if it could ripen into adverse possession, the government must pay. o Remedy: Only allows for recovery of money damages (cannot enjoin the government). o Paying for land, and, if not the entire parcel, the consequential damages to the rest of the parcel. o Process: o Property owner alleges that government could have taken the land through eminent domain. Must establish first three elements: Authority, PPP, reasonable relation. (Although theyve already taken it, so this isnt really disputable). Government doesnt have the choice of avoiding the regulation.

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o Because the government could have taken the land and didnt, but is still affecting and/or using the land as if it did, property owner alleges that he needs just compensation and procedural due process. o P sues the government to force the government to compensate him for eminent domain. o Cause for Inverse Condemnation: o Government is actually trespassing on/using your land, but you cannot sue the state because of sovereign immunity. o State action is causing a considerable and unreasonable nuisance (which would ripen into PE).

Regulatory Taking:
o Definition: Regulatory taking that is not a physical taking, yet it restricts the use of land so much that it amounts to a taking. o Often changes to zoning give rise to regulatory takings claims. o Presumption of Validity and Constitutionality: It is the burden of the P to show that a rational agency could not have come to that decision, not that it was the wrong decision. o Five Questions of Government Action: o Authority: Against State, which delegated to local government. (Bowles v. Willingham). o PPP: Health, safety, welfare. Look for a poison purpose, Plater loves it. o Rationally Related: Dooley Casehigh ground within 100-year flood plan is not rationally related to preventing death by drowning. o Private Burden: Causal nexus. Also, look to reasonable remaining use. (This is the main battleground on this issue) Time Baseline: Investment backed expectations (self-made hardships are not well received). Property Baseline: Regulated portion of the parcel vs. the entire parcel (What size of scope are we looking through, the whole parcel or only the

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piece that is being restricted by the regulation? Think of the columns in the Penn Coal Case.) Majority View: Look at the long-term view and parcel as a whole. Lucas Test: Really isolated. Lucas isolated to only cases when there is no reasonable remaining use. (Minority test) o Due Process: Notice, opportunity for hearing, Mathews v. Eldridge Balance. o Remedies: o Generally, a regulatory action is constitutional or not. So it is rescinded or it is not, either as applied to the parcel or generally. o But, according to Plater, the government can either rescind the regulation as applied to the parcel or pay the eminent domain value (fair market value). o Exceptions: Require no compensation o Conflagration (dynamite the house before it catches fire) o Diseased Cattle (take and kill) o Oil (Japanese are coming to Manila, government blows up oil tanks in advance) o Threshold: Before a P can challenge an administrative decision in court, must review: o Standing o Reviewability: Decision was arbitrary, capricious, or abusive. o Exhausted agency remedies o Ripeness o Evolution of Case Law: o PA Coal: First case where private party successfully overthrew a regulation o Court looked just at the regulated portion of the parcel (the easement for subjacent support) and found that there was no reasonable remaining use, and thus a taking. o Dissent: J. Brandeis, you have to look at the whole parcel.

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o Penn Central: Developers wanted to make a skyscraper over Grand Central Station, but couldnt because of historical landmark regulation. o Court: Balance Three Factors: Diminution in property value Investment-backed expectations Character of governments action

o Lucas: Scalias Categorical Rule: If it can be shown that because of regulation, the property has not remaining economic use, its a regulatory taking. o Exception: If the govt can show that the property never had the right anyway (i.e., the regulation is merely duplicating established property or tort law) or that the state is protecting what would otherwise be a common law nuisance (cyanide dumping). o Palazzolo: o Court: Conceptual severance is wrong (aka, its wrong to just look at the small picture). o A owner can attack a regulation he know about when he purchased the land but in weighing the degree of harm, thats going to weigh against his investmentbacked expectations. o J. OConner: Apply Lucas when property value is $0, otherwise Penn. Central is controlling.

Overall Test for Unconstitutional Taking (#4, after 1-3 have been checked): o What diminution of the property has occurred as a result of the regulation? o Analysis: Looking at remaining economic value, even though there may not be any
remaining use of the property, it might still be worth something.

Regulation is valid if there is a reasonable remaining economic

use.

The constitution does not protect your wishes (a close

convenience store), but does protect your rights, as long as land still has value.

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 Baseline: Look at the whole property, not just the regulated property. Plater: Look at the property involved in the investment-backed
expectations, i.e., all property purchased at the same time. Time Baseline: Consider the whole stretch of time the person has gotten use out of it. (most of the coal gone, millions of profits made) o If no substantial diminution in property, the inquiry is over: no taking. o If total loss in value, apply Lucas: Automatic taking. o If there is something between no total wipeout (no automatic taking) and no substantial diminution (no taking), Penn Central Triad analysis applies: o Extent of diminution o Investment backed expectations o Character of government regulation Balancing public purpose and private harm o If court determines that it is a regulatory taking (balance in favor of private harm), the government can: o Lift the regulation, or o Pay compensation for the taking. o Tests: o If physical appropriation of the land: Almost always deserves compensation (see exceptions above) Reasonable remaining use/value Weighing public purpose and private harms. o If its not a physical appropriation:

Fault: Easter Enterprise: o Can argue that a regulation that takes from an innocent party is unconstitutional. o Argue that no reasonable agency would require payment from someone when they are not at fault. o Possibly a constitutional requirement for fault? Probably not.

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Exactions:
o Definition: Conditions a developer must meet before he will be granted a building permit by the government. o Valid Exaction requires a five point test: o Authority: Does the city have the right? If they deny the permit, would it constitute a taking? If yes, the exaction is invalid

o PPP: Could you deny this permit without the 5 point test? o Rationally related: Roughly proportionalrational nexus between regulation and exaction. Dolan: Switch burden to government to show rough proportionality. o Private Burden: Exaction or extortion? Covers the increased public burden from this private action. o Due Process: Notice, hearing, Mathews v. Eldridge. o Nolan: Beachfront property, California Coastal Commission. Nolan fails on rationally related because without walking on the land, government could not prove that extension of the house would block publics knowledge of their easement. o Dolan: Rough Proportionality: Amount of exaction roughly proportional to need created by the permit. o If adjudicative exaction: Switches the burden to the government to show rough proportionality. o Flex Exaction: If the property causes harm in the future, we will sit down and negotiate. o Severability: If a court strikes down the exaction, does the permit still go through? o Safer for the city to say in regard to the permit, no, unless you make exaction X, as opposed to, yes, and make exaction X. Look to the intent of the government.

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Zoning
o Definition: Public law that controls the use and development of private land. o Need Ordinance and a plan: o SSCPA: Gives the state the ability to create a plan o SSZEA (Standard State Zoning Enabling Act): Gives the town the ability to create a zoning board o Plan then gets approved by the zoning board (an administrative body with adjudicated power), which creates the ordinances that are authority/law regulating zoning restrictions. o Five Questions for Zoning: o Authority: SSCPA and SSEZA delegate power. Must unsure that the person doing the zoning has the power to create the zoning ordinance. o Proper Public Purpose: by Euclid, zoning has a PPP. However, be on the look out for poison purposes within zoning (possible poisoned spot zoning). o Rationally Related: Zoning ordinances are rationally related because there is a plan. o Undue Burden: You could possibly make an argument if there is evidence and the court wants to hear it. If theres a reasonable remaining use of the land, the zoning regulation has not gone too far. o Due Process: Mathews v. Eldridge. Euclidean Zoning: Theory of governance of the land where every community is its own fortress, established as within power of state. o A method of zoning where a city assigns every part of the city as a particular zone, allowing a certain type of use. o Court determined that the zoning had a reasonable relation to PPP as long as there was a comprehensive plan for zoning the community. o If no plan, may run into a problem when attempting to re-zone: vulnerable to attack that re-zoning is arbitrary and capricious.

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o Smaller communities can consider the zoning map to be the comprehensive plan itself: but can be vulnerable to arguments against spot zoning. o Now communities have extensive, comprehensive plans that include much (if not all) text to allow more flexibility in zoning. o Ways to Skirt Zoning: o Special Exception: Usually requires public hearing. Administrative agency makes a decision Usually requires the type of use be delegated eligible for a special exception in the zone. o Variances: Allows property owners not to adhere to certain zoning requirements where doing so would create an unconstitutional hardship. Usually granted by a clerk, even though it involves a very complicated constitutional analysiseasier to get than a special exception. Lawyers often threaten zoning board with personal liability, thus allowing variances to be pushed through. o Amendment/Rezoning: Legislative method. Danger of Spot Zoning: Cant just create zones around a few pieces of property; spot zoning usually not rationally related to the comprehensive plan. Danger of poison purpose. o PENCU: Pre-existing Nonconforming Usegrandfathered through zoning. o Runs with the title. o If property is destroyed, cant rebuild, and no super-maintenance. o Can grow and expand with natural flow of business. o Amortization: Allows nonconforming use for a certain amount of time before enforcing conformity (a planned PENCU death). Must be a reasonable timeframe.

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Non-Euclidian Zoning: o PUD (Planned United Development): An overlay or a section within Euclidean zoning that allows mixed-use development. Like a flex covenant for zoning. o Floating PUDs: In the text of zoning ordinance, but not put on the mapsuper flexible. o Fixed PUDs: An actual zone on the map that is not zoned for any particular use. o Acquiring a PUD: Much like obtaining a special exception. Property owner negotiates and enters into a K obligation with the city that he will build on the land in a certain way, and may supply exactions. o Mt Laurel Decision: o Regional Assessment: The localities derive their power from the states, thus these issue must be looked at from the state level. A city cant zone out undesirable sections of the population via a lack of low-income housing if there is a state-level need for low-income housing. Runs with the land.

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