Property Bryant FA 2003 2

7/23/2019 Property Bryant FA 2003 2

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PROPERTY OUTLINE--BRYANT, FALL 2003

I. Acquisition of Proprt!

-What are the different ways of getting a property interest? Can be through discovery, capture,creation, adverse possession, etc. Courts may decide to give person a property interest in

something that is not land, such as an expression of an idea. Concerns: fairness (how muchwor!creativity was put into it"# incentives for certain behaviors# whether resource is limited(maybe public should share"# changes in technology (do we need new rules, or can we apply oldones"# whether legislature should create the right, or court# other types of remedies that areavailable to fix the situation.-When there is a property right, what should court do to protect it? What rights involved?Concerns: the type of property interest (may be different for land vs. computer system"# whoshould bear costs!burdens# whether there is in$ury (right to exclude all others regardless ofin$ury?"# right not to be excluded

A. Discovery

". #o$nson %. &'Intos$

a) Facts

% appealing decision in favor of &. % claimed ownership of land based on two grants from the'ndians. he & claimed a later grant by the )nited *tates govt to same land.

b) Rules and Reasoning

&iscovery gave the )nited *tates an exclusive right to appropriate (through purchase or con+uest"and use land occupied by the 'ndians. 'ndian inhabitants have right to occupancy only# have norights of absolute title. &iscovery was relation between different uropean nations to deal w! property rights.

c) Issues

-rights of discovery v. rights of con+uest-mixed here-right of occupancy-does this mean anything for the 'ndians-first in time claims-ohnson actually had best first in time claims-pre$udicial treatment of'ndians, their use of land-labor theory-'ndians had different way of using land, uro view that cultivating!changing landgives ownership-possession and ownership not same// ust an aspect-cannot transfer a right you do not have (chain of title"# but see recording section

B. Capture

". Pirson %. Post

a) Facts

%ost was pursuing wild fox on uninhabited, un-owned land. %ierson illed the fox. %ost sued,won, %ierson appeals.




%ursuit alone does not give the pursuer right to possession of a wild beast. 0 person must deprivethe beast of its natural liberty by trapping, mortally wounding, or illing and capturing theanimal. his shows the labor that went into the capture and gives he that succeeds most in thatlabor the right to possession. 1ule preserves peace, clarity.

c) Dissent

*hould have ased sportsmen what the answer should be (custom". &ecision should encourage asmany as possible to hunt and ill foxes not deter them. hins if hunter is within reach or hasreasonable prospect of capture gives right to animal.

d) Issues

-labor theory-how much labor is enough to get property interest?-first in time-but what is more relevant, seeing, illing!wounding? 2ere it is wounding.-bright line-establish a clear rule for such disputes-would incentive really wor here? 3ot clear

2. Popo% %. ()!)s$i

a) Facts

he baseball landed in the webbing of %opov4s glove, but was not clear if it was secure. Crowddescended on him (caught on camera", engaging in illegal conduct. %opov lost ball at some point,we cannot now if he would have retained it. 2ayashi (who committed no wrong in mob" saw the ball and put it in his pocet. %opov looed for ball when he got up and wanted it bac. %opovfiled a suit.


2ayashi had possession, %opov had pre-possessory right. 5oth had an e+ually valid right to the ball, can4t now if %opov would have held on if crowd did not interfere. *ell the ball and split the

price.

c) Issues

-e+uity outcome, vs legal outcome-possession must be ambiguous to apply to many different situations, no clear definition-incentive for order-would it wor?

3. *$)r+ Rsourcs

6imited resources can be captured because we want them to be used. 2owever you must usereasonably to protect the resource. 7r instead of capture to get ownership, you could decide thatall applicable land owners own the resource, or that it is owned by gov4t. &ifference btwownership of land and ownership of what is above and below it.



C. Creation

". Int' Ns *r%ic %. Associ)t+ Prss

a) Facts

'3* and 0%, are competitors in gathering and distributing news for profit to newspapers in )*.

'3* admits to using 0% news from bulletins and early edition newspapers for the purpose ofselling it to '3* clients, either bodily (same writing" or rewriting. '3* appealing losses.


'3* cannot sell the 0% news because among these competitors, news is a +uasi-property, andrelease to the public does not allow use for any purpose. 3ews is common property to the publicafter its release by a news gathering organi8ation. his appropriation and sale is an 9unauthori8edinterference with 0% and diverts profits from those who earned it to those who have not.

c) Issues

-why protect, and how long?

-not $ust saying 0%4s expression of the news should be protected# they have some ind of property right in how the actual facts are used (for a certain time"-how creative? his isn4t necessarily creative, but it is the product of hard wor the others didn4tdo-policy: incentives to have reporters, do good research

2. $n! Bros %. /oris *i

a) Facts

% maes sils with different patterns every season. hey mae many each season, not nowingwhich will be popular. & copied %4s popular sil pattern and charged a lower price. % broughtcomplaint with this as in$ury. & appealed.


3o can4t copyright pattern, because property is limited to 9chattels which embody one4sinvention. 'mitation drives competition. 't would be a monopoly if the govt granted exclusiveownership of the structure or plan for something, it would give that person too much power overothers.

c) Issues

-&ifferent from '3* case? 7r should this have come out differently?-rule different now: C03 copyright patterns

3. Rur) Tp$on %. Fist

a) Facts

1ural is a monopoly for one area, gives phone service and must mae a phone boo. ;eist maes phone boos and wants to use 1ural4s listing. 7ffers to pay, 1ural refuses, ;eist uses anyway andadds to the most of list through own research. 5oth boos free, compete for yellow pg ads.

b) Possible outcomes

(1) Rural has property interest



-compensatory relief (;eist can4t use unless researches each listing"-punitive relief (;eist punished for using when 1ural refused"-in$unctive relief (;eist cannot use in future"

(2) Rural has no property interest: Feist can use w/o pay

(3) Rural must sell listing to Feist: property right w/o totalright to exclude

c) Rules and Reasoning

3o property right, 1ural4s boo not creative enough to be protected by copyright

d) Issues

-unfair business practice vs. property interest violation: when do we pic what it is? *imilar to'3* case

1. Intctu) Proprt! Protctions

a) Copyright

-protects creative expressions of ideas

b) Patent

-a novel, nonobvious, useful product, original and independently created

c) Trademark

-words, symbols indicating source of product or service

d) Results of increased protection?

-increase in litigation-must protect right

-fewer developments made from existing products trying to improve things that might becopyrighted-satisfaction of consumer interests has gone down

. irtu) 4ors %. os)5on

a) Facts

<irtual Wors bought the domain name vw.net, new that the domain name might be mistaenlyidentified as <olswagon and that <olswagon might want to pay to buy it in the future. When<olswagon expressed interest in buying it, <irtual Wors contacted <ols with info that they had=> hrs to mae an offer# otherwise vw.net would go to highest bidder

b) Rules and Reasoning<irtual Wors did act in bad faith because they new the name was similar to <olswagon4sfamous <W mar and intended to profit from its sale. Court decided domain names are notexactly applicable to trademar protection, but there is still some protection if the use is with badfaith.



c) Issues

-purpose of act was to protect consumers from confusion. &o they need this protection? 2owcostly is it?-cybers+uatting (register domain name based on famous trademar with intent to profit or dilutename", parasitism (register similar names and use them in ways that tarnish mar4s reputation#intend to benefit from fame of the mar, right?", poaching (register similar names to spreadunfavorable information about a group"-common problem of extending property law into a new area. 's it $ust lie before, or a brand newterritory where first in time gets benefits?

6. Proprt! in On's Prson)

-b> @ABs celebrities could not assign use of their lieness or name. he idea is they should beable to benefit from their own fame, assignable during life and descendible at death til AB yrsafter (then public domain".-why the change? echnology, can get so close that consumer can4t tell the difference, getsconfused, and has greater commercial utility. <alue of their persona is diluted when others areable to use it. 1ight to use and right to exclude others.-right to say no# right to transact with persona, license it etc# transfer in death to others-policy +uestions-worth it to have extra litigations to protect those who are already famous andrich? What about people having to now protect image to prove that they didn4t intend forsomeone to use it?-C0 Civil Code @@B-lays out re+uirements for retaining rights to persona, transferring it

7. &oor %. R5nts of U of A

a) Facts

oore had spleen removed as treatment for leuemia. &octors did not tell oore that the cellsthey were removing were uni+ue and of commercial value. &octors received patent for cell linemade from oore4s cells and maret for this research could go into billions. oore sued for

conversion, failure to disclose, etc.


oore did not and should not retain an ownership interest in the removed cells because precedentand statute do not support such a property interest, and the informed consent re+uirement protectsthe patient ade+uately. he allowance of such a possessory interest for a patient would deterresearchers and create too many tort liabilities. ;urther, the 6egislature is best suited to maesuch changes, not the court. 0nd the disclosure obligations protect patients4 rights withouthindering research or harming innocent parties. *lippery slope policy argument.

c) Dissent

-oore had a right to do with his own tissue whatever the researchers did with it. *cientists

cannot have a right to exploit a patient4s tissue for their sole economic benefit. 7rgans and tissuecan already be sold for research (according to statute". he liability for nondisclosure is notenough because of the very high standard to prove it. %lus, patient has only right to refuseconsent, not to grant it for payment. 0lso does not hold liable those who may exploit tissueswithout direct relationship to patient and need for disclosure. 3o need to allow slippery slope.

d) Issues

Dcomparison to right to persona (a property right in one4s identity", right to privacy (often used to protect one4s body without a property right"



-statutes can be interpreted very differently-how many property-lie rights mae something protectable by property law?-what about limiting property rights (ex: to sell" while still acnowledging property interest-conversion: civil side to crime of theft# trespass to chattels: interfere w! private property w!otaing# misappropriation: either one, usually conversion-re+uires property right

D. Right to Include/Exclude

". #)cqu %. *tn8ur5 (o9s

a) Facts

& moved mobile home over %s property after they refused. 0warded punitive damages (nominaldamages E"


-right to exclude is one of essential rights of property. 'f the state did not protect this, even whenthere are no nominal damages, it has less value and meaning.

c) Issues

-protection by state prevents people from using vengeance to resolve problems-right to exclude even if the trespass doesn4t hurt you at all-bright line rule (don4t have to findhow much inconvenience, etc"

2. *t)t %. *$)c

a) Facts

;armer claimed that govt aid worers were trespassing when they wanted to tal to migrant farmworers in their living +uarters, not with farmer present or in place he allowed.


-court found there was no trespass at all b!c worers were giving aid per statute helping migrantfarm worers. Cannot violate another4s rights in protecting your own property. ;arm worers areuni+ue population, under unusual circumstances-living at $ob.

c) Issues

-law prevents occupants from contracting out of certain rights-limitations on right to exclude (civil rights, rent controls!eviction rules, adverse possession"-necessity can $ustify entry onto private land-right to exclude from public land? (cra8y!homeless people"-right not to be excluded

3. Int %. ()9i+i

a) Facts

;ormer 'ntel employee sends anti-'ntel emails to current worers through 'ntel intranet emailsystem. Would delete from list if person ased. Caused no physical!functional damage. 'ntelclaimed trespass to chattel.




C0 supreme court found no trespass to chattel for electronic comm system if no damage (difffrom trespass on land".

c) Dissent

5urden should fall on 2amidi to deal with costs of his activities, not 'ntel. mail system isintranet, should be able to control own system that they pay to maintain.

d) Issues

-right to exclude different for different types of property-who should bear burden of costs (externalities"-policy implications for usefulness of internet, email communication-do we need a property solution, or are other remedies available? 6egal remedy needed at all?

E. Adverse Possession

-1everse side to right to exclude# you must exercise that right to avoid adverse possession-you must be a trespasser to get adverse possession

-owner must use action of e$ectment to get 0% off land-+uiet title- using same statute to ac+uire property as a person would use to e$ect trespasser,officially changing the title (not necessary to +uiet title to be owner"-%olicy behind it? Food to put land to use, improve it# moral connection to property (true ownerdoes not have it, 0% does"# simplify disputes-0% against govt not allowed

". Rquir+ E9nts

a) Actual ntry

-starts the statute of limitations running-disability of 7 an issue

b) !pen and "otorious

-would have put owner on notice-use as the true owner would

c) Ad#erse and claim of right

-deed!written instrument (color of title" helps, will allow constructive 0% (0%ing more than youused if deed included it"

d) Continuous for statutory period

-tacing successive owners, re+uires privity

-if abandoned!interrupted, the statute of limits begins again

e) $Combination)%&ostile

-it is exclusive, 0% acts lie legal owner -mindset: ob$ective, good faith, or bad faith



2. )n )n8ur5$ %. Lut:

a) Facts

'n the course of using his property, 6ut8 used part of another lot that he did not own, for thirtyyears. 2e planted a garden on it, built a shed!house, and created a pathway to his land (beg @=G".When the lot was sold and claimed by %s (@>H", 6ut8 admitted their ownership but claimed

prescriptive right to use path and won. 6ater %s sued for removal, and 6ut8 counterclaimed fortitle to the whole lot by adverse possession.


3I *tatute re+uires that 0% enclose the land and improve!use it all. ust show claim of right(hostile". ;ound that 6ut8 did not intend to claim lot as his own, did not use whole thing.

c) Dissent

nough of lot was occupied!used as a true owner would. 2is length of occupation shows claim of title (intent irrelevant".

d) Issues-role of intent, 0%s mindset as opposed to length of occupation alone proving claim of right-more to prove if there is no color of title-problem of notoriety-how much notice re+uired? arengo Cave v. 1oss case-when should 7reali8e this property is being used, and when is it understandable not to notice?

3. &)nio %. ;orsi

a) Facts

Forsi added onto their house, encroaching on the land of anillo. Forsi did not reali8e thisand thought house was within own boundaries. anillo sued# Forsi claimed adverse possession#anillo claimed that possession was not of hostile nature b!c it was by mistae.


he mistaen possession does establish a claim of title because the material elements are there, noneed to examine intent. he court will not assume the true owner new of the small encroachmentof a common boundary# the owner must have actual nowledge for possession to be open andnotorious

c) Issues

-re$ected aine doctrine (must nowingly tae another4s land" in favor on Connecticut doctrine(intent irrelevant"-e+uity solution-if not open and notorious, 7 could be forced to sell land to 0% for fair price-oral agreement btw neighbors can hold if ept for long time

-what we expect of owners: either actual nowledge (positive, can include in+uiry notice" orconstructive nowledge (reasonable person should have nown"

1. (o)r+ %. <unto

a) Facts

Junto lives on a property west of the 2owards with one lot in between (oyer". *everal peoplehad lived on Junto4s land before and had passed down the title since @K=. 0 previous survey had



confirmed the boundaries of the deed. 2owever, the deed was actually for the land to the west.oyer held the deed to Junto4s land, and 2oward to oyer4s. 2oward and oyer sold eachother the deeds, and 2oward claimed ownership of the land the Juntos lived on. Junto had livedthere less than one year at time of action (@LB"# the home was used for summer occupancy by alloccupants.


*ummer occupancy does not defeat the continuity b!c it is in accordance with ordinary use of theland. Junto can use the time the land was possessed by all successive owners b!c this would acntheir valid claims of right under privity.

c) Issues

-tacing-two types. ;irst is tacing on a portion of land (0%" if you have color of title. *econd istacing on occupation time of successive 0%s if there is privity.-privity-a close connection between successive 0%s suggesting they were acting as true owners,maes it easier for present 0% to get over statute of limits-continuous re+uirement-the 7 must be able to tell at any time that there is an 0% there, must beable to identify who it is so they can file motion for e$ectment

. (!pot$tic)s )8out st)tut of i9it)tions c$)n5s

a) Tacking

(1) Tacking !s

-'f 5 taes land wrongfully from 0%, 0% has a claim against 5 (even though still a trespasser".When 0% gets 5 off land, that amount of time that 0% was gone is taced onto the statute oflimits. Why? 3ot open and notorious for that time (a compromise."-when is statute of limits interrupted? Whenever 7 gets 0% off land and documents it.-'f 0% abandons and 5 comes in at same time, can 5 tac 0%4s time? 37-no privity-an 0% can sell their accumulated time, the buyer can tac it on (this is a very risy buy, buthighly discounted from actual price"

(2) Tacking "wners

-changes in owner do not matter. 7nly thing that matters is when 0% had actual entry-if 0% enters when 7 is owner, 7 dies and 5 becomes present owner with future interests for C-doesn4t matter. *tat of limits same. 5) C can sue 5 for wasting the land.-if 0% enters when 5 has life estate, future interests in C, 0% can only get the life estate. 0fter 5dies, stat of limits begins again, now against C

b) Disability

-must exist at time of actual entry. *ubse+uent disabilities are irrelevant. 3o tacing of

disabilities/-we usually interpret statutes on this to mean that the 0% must last through the full stat of limits,or a certain time after disability ends, whichever is longer -if 7 dies, disability ends, and 0% has to last B years (or whatever statute says" before owning it.&isability of heirs is irrelevant/

6. (!pos )8out onstructi% A+%rs Possssion

-Constructive adverse possession uses color of title to adversely possess land, only part of whichwas occupied



-7 lives on the front LBM of his land. 0% moves into the bac >BM with color of title. 0fter thestat of limits, 0% tries to +uiet title. *ince both 0% and 7 did not throw each other off, they get toeep the land they were occupying. he color of title is irrelevant and does not hurt 0%4s showingof exclusivity.-N and I own two contiguous lots, and =, and O sells a deed for and = to 0%. 0% moves intolot , and later tries to get =. Constructive ap does not wor b!c I had no notice/

II. Est)ts-Prsnt Intrsts

A. Introduction

;our +uestions to consider for each type:-what does it mean, what words trigger it?=-2ow do you create one? What words to you use in drafting# how to create them when words areambiguous?K-6egal implications, conse+uences?>-2ow do you undo it and free the subse+uent owners from limitations?

B. Termsscheat-person who owned it did not provide for it, ran out of heirs, then it goes to the govtIntestate-no will, people who inherit by state law (not until person died". 0 default statute if nowill.Testate-having will, people who inherit based on willInter #i#os-conveyance during lifeTestator-person who wrote will&eirs-undefined, do not become heirs until the person dies (0 and his heirs meanstestate!intestates after 0 dies" 6iving person has no heirs.Pur autre #ie-measured by someone else4s lifeForfeiture restraint-9if anyone tries to sell, land will revertDisabling restraint-9if anyone tries to sell, sale will be void

'ested remainder-we both now who remainder will go to, and that no other conditions exist for them to get itContingent remainder-something must happen or be done before vesting

C. ee simple a!solute

". 4$)t is it=

-9to 0 and her heirs 9to 0 forever 9to 0-oday we see 9to 0 to mean 04s heirs as well# previously meant only a life estate. 7ur presumption is different now, presume that you meant to give everything you have and not hold bac any rights. 5ut best to use cleanest language.-no separate future interest# later on you can change it to another type of estate

-does not mean you have every single right-you must prevent adverse possession, and can4t hurtanother4s rights, etc-utility-we believe grantors should be able to control land, but not when you use land to harmothers or control them too much through defeasible estates

2. (o +o !ou cr)t on=

-must give all the rights to someone# none can be leftover. 'f an illegal restraint is attached, the;*0 will stand and restraint is void



3. L5) i9pic)tions=

-has all legal rights, so holder can do anything legal with it-restraints on alienation cannot coexist w! it

1. (o +o !ou un+o it=

-;.*.0. holder can create any other type of estate

D. "i#e estate

". 4$)t is it=

-triggered by 9to 0 for life-future interest that you eep is a reversion-what sort of estate will it become? 0 fee simpleabsolute. Iou can deploy it again, so whatever you want with it.-1eversion-if not every right has been given, all interests must go to someone, so you still havethat interest (use word reversion, not reverter/"-1emainder-future interest in a third party, they get it instead of you-that interest is really gone, different from landlord!tenant (maybe could get it if they were

wasting it though" this is 37 a contractual right to use the land.-you can sell it, but only lasts as long as the person for life-only can sell the rights you have-if there is a gap btw life tenant and remaindermen taing interest (funeral hypo" reversion tograntor for that time


-usually want to now who remainder will go to, will say 9to 0 for life, and then to 5-language lie 9for use and benefit can be a life estate but we tend to presume the largest grant possible when language is ambiguous, so this would be ;*0 or a defeasible estate if there iscondition

3. L5) i9pic)tions=

-both forfeiture and disabling restraints are illegal for defeasible estates, but forfeiture is o for alife estate. Why? Five life tenant incentive to mae good business deals, protect creditors.-when can life tenant use the land as collateral? 0nytime, but creditors might not want it if tenantis very old (will die soon"-valuation of life estate and remainder-must consider present value of money discounts. heyounger the life tenant, the greater share of the total asset value they get at present if estate issold.-insurance for damage goes to life tenant, not to remaindermen-waste-to determine if future interest holders can do something, must compare the interests ofeach (contingent has less power than vested". 1emainder will argue: %ermanent harm, taing oflimited resources (that were not being mined before, or taing too much", possible 0%s. 6ifetenant will argue: positive improvement or no permanent harm.

-reversion interests are transferable


-can get together all the interest holders and have an ;.*.0., but remainder must be vested first-if either party is wasting, can get court to tae their interest-when life tenant dies, remaindermen have ;.*.0.



. 4$it %. Bron

a) Facts

rs. 6ide left ambiguous will, giving house to her sister in law 9to live in and not to be sold.Was this a life estate w! remainder to other heirs or a fee simple absolute with an illegal restrainton alienation?


Court presumes against partial intestacy (person got rid of all rights", and against a life estate infavor of f.s.a.

c) Dissent

't is a life estate# the restraint is the ey element of will.

d) Issues

-policy-mae people clear when writing wills. 5ut holographic will writers might not read thisopinion.

6. B)r %. 4+on

a) Facts

Will left all property to 0nna, then to her children# if none, to his grandchildren at her death.Created a life estate for 0nna, conflicting interests btw her and remaindermen. 6and value rising,she wanted to force sale b!c of waste.


ust consider waste and necessity# most of all the best interests of all parties involved.

c) Issues

-conflicting interests btw life tenant and remaindermen. 6ife tenant wants to maximi8e currentvalue and use it, remaindermen want to reali8e maximum long term potential.-affirmative waste (voluntary acts that may reduce value" vs. permissive waste (failure to act,negligence". 5ut economic waste isn4t necessarily legal waste.-would have been better to mae a trust for 0nna. rustee would hold f.s.a.

E. ee simple determina!le

". 4$)t is it=

-possibility of reverter in a fee simple absolute-future interest is separate if the restraint is violated-property will revert automatically to grantor if violated, says it will revert to grantor

-given to grantee 9so long as condition remains unbroen


-language should create a time limitation# the moment the condition is broen, the land revertsif ambiguous, depends on what you are more concerned about# the present use and time limits, orthe future conse+uences



3. L5) i9pic)tions=

-you can adversely possess against the right, the moment you start violating you are adverse-other person might not now, but court could still thin it4s open and notorious. &angerous for thegrantor, could lose the right.-but where is line to be drawn-how do you now exactly when they violate it, even languagecould be interpreted differently (smoing". We can try to loo at grantor4s intent (very difficult"#the future holders4 interests, and the present holders4 right to use the property.-future interest cannot be transferred by common law# but many states changing. 5ut futureinterest is not as strong as a life estate remainder# the reverter is only a possibility (lie acontingent remainder"-as future interests becomes more lie property, it can be taxed, estimated, compensated for


-get the future interests from the grantor to mae an ;*0-0% against that future holder4s right by breaing condition

. ee simple $ith conditional su!se%uent

". 4$)t is it=

-right to re enter the property if condition is violated-gives all property rights to the grantee, with a right to do something if a forbidden right is used


-not limited in time# given 9forever. 'f condition broen, the grantor 0I decide to dosomething about it-if ambiguous, depends on what you are more concerned about# the present use and time limits, or the future conse+uences

3. L5) i9pic)tions=

-adverse possession-cloc begins ticing after grantor uses right of entry (but if taes too long,0% could argue for e+uity# some states of stat of limits on using the right of entry, ie C0"-can sometimes be a stronger limit on the grantee4s conduct than ;* determinable (can4t 0% aseasily"-as future interests becomes more lie property, it can be taxed, estimated, compensated for


-get the future interests from the grantor (transfer to Krd party if allowed, or give rights to thegrantee"-adversely possess future right-but very hard to do, future holder must use right of entry

&. ee simple $ith executory interest

". 4$)t is it=

-Won4t be around to monitor, the third party has power to tae the land-similar to the determinable form, even if language is lie condition subse+uent-9to 0, but if a does notP., to C-grantor may decide to give interest to a third party if they will be more diligent about thecondition being met




-give the future interest to a third party who divests someone else-comes after vested remainder (legal or possessory"

3. L5) i9pic)tions=

-similar to ;*&


-rule against perpetuities

'. Cases on De#easi!le Estates

". &)$rn$o: %. *c$oo Trusts

a) Facts

2uttons conveyed land to school district 9for school purposes only, otherwise revert to grantors.2uttons tried to sell their future interest to a third party. 5ut did their heir still have the right? 2e

first gave his rights to %s, then &s. Who has the future interest? *chool stopped holding classesand changed land to storage# did they violate condition?


-;uture interests in defeasible fees cannot be sold or transferred but can be inherited. 2eir hadfuture rights.-&epends on whether it is ;* determinable or ;* cond subs whether or not heir could haveconveyed the land to %s. 'f it was ;* cond subs, he only had the future interest, and could onlygive that to the &s.-the words 9only and 9revert together suggest ;* determinable-a violation triggers a mandatoryreturn

c) Issues

-what does each party want to happen# this will determine the way they characteri8e the events-not always clear if condition was violated-in many states, future interests are treated lie a thing, can be transferred.

2. &ount)in Bro Lo+5 %. Tosc)no

a) Facts

oscano gave land to lodge for lodge use only, with a restraint on sale. %s claim these are bothillegal restraints on alienation.


-restraint on sale is void, but what about the restraint on use? a$ority upholds this restraint, butdissent says it is no different from the restraint on alienation.

c) Issues

-incentives to give land to charities# person wants to mae sure donation is used for that charity-restraint on use does not always mae land unmaretable, but can have a strong effect



3. In %. )nton

a) Facts

'ns gave ;* determinable to city of Canton for 'n par. 6ater state too most of land forhighways and compensated the city. %s want some of that money.


3ot fair to give all money to either party. Frantor retained some rights# grantee did not breacondition on purpose. &ecided that city must use money for par purposes# grantor retains poss of reverter in the money. 5ut what if E is not enough for a new par?

c) Issues

-ma$ority rule is that grantee gets full compensation. Why? he point of the grant was to compelthe grantee to meet the condition. 'f they are forced to violate it, there is no need to compel themor punish them.-compare to %alm springs case-they started the eminent domain proceedings, so they violated thecondition themselves. hey lose it all.

III. Est)ts-Futur Intrsts

A. Interests in the &rantor

". R%rsion

-when there is a contingent remainder, there is a reversion (life estate can end before death"# afterreversion, 7 has ;* sub$ect to ', the former contingent remaindermen have an '-a vested remainder wipes out any reversion

2. Possi8iit! of R%rtr

3. Ri5$t of Entr!

'f these two are transferred, they retain their names. 7 transfers right of entry to N-still calledright of entry. 5ut if N has executory interest and coveys to 7, still called executory interest.

B. Interests in Third Party

-10& 2 W71&* C73*C)'<6I, 37 0* 0 W276-when stating the title before 10%, apply the given facts first

". ontin5nt r9)in+r

-there are precedent conditions to vesting, and!or the remaindermen cannot be identified# oncethese are fulfilled, the remainder becomes vested-9to 0 and heirs-heirs have no future interest

-9to 0 for life, then 04s heirs-heirs have a contingent remainder -9to 0 for life, then to 5 if 5 doesP-5 has contingent remainder -there can be two contingent remainders 9to 0 if a doesP, but if not, to 5

2. st+ r9)in+r

-happens after life estate-vesting legally is 37 same as vesting in possession



-can only be followed by executory interest unless the vested remainder is in a life estate (aremainder in ;*0 can follow"-9to 0 for life, then to 5 or 9to 0 for life, then to 5, but if 5P

a) Absolutely #ested

-not sub$ect to open, no precedent or subse+uent conditions to be met

-distinguish legal vesting from vesting in possession

b) 'ested sub(ect to open

-future interest in a class, at least one member of which exists# if more enter the class, they willhave a vested remainder sub$ect to open also and remainder will be diluted

c) 'ested sub(ect to di#estment

-there are subse+uent conditions that must be met-means it is sub$ect to an executory interest-9to 0 for life, then to 5, but if 5 doesP

3. E>cutor! intrst-9to 0 for life, then to 5, but if 5 does notP.then to C. C has executory interest following 54svested remainder.-must divest a vested or possessory interest-wors lie ;*&-vests only in possession-problems arise when interest is in a class of people (04s children". 't is sub$ect to dilution or partial divestment as more enter the class.-if conveyed bac to 7, its still called executory interest, not reversion!possibility of reverter.

1. *)nson %. *)nson

a) Facts-life estate in trust was made, with remainders to the children. wo conditions-life tenant had power of appointment, and if child died, their living children would tae their interest. 5ut whendoes the child have to die for the interest to be vested? Confusing survival language.


-the court assumes in favor of condition subse+uents, so remainder is vested. Child who dies before life tenant (and = conditions not met" still retains interest for heirs.

c) Issues

-important to be clear about survival language-must survive whom?-adults may adopt 9children at any age (could be other adults"

-if 5 has vested remainder and is never divested, then 54s heirs get it even if he dies-pay attentionto when it vests/ What are conditions, are they precedent or subse+uent?

C. Doctrine o# Destructi!ility

-raditional rule governing contingent remainders-helps us get an ;*0 as soon as possible.-066 contingent remainders disappear as soon as life estate ends (death of original life estateholder, even if life estate was conveyed to others" and land reverts to 7



-but this is troublesome b!c the conditions you want to encourage may not be affected by death oflife tenant. ore time may be needed.

D. Rule against Perpetuities

93o interest is good unless it must vest, if at all, not later than = years after some life in being atthe creation of the interest

". ?No intrst is 5oo+ unss it 9ust %st@

-applies 736I to contingent remainders, vested remainder sub$ect to open, and executoryinterests, not interests vested in grantor -5) if holders are non-profits, don4t apply 10%-interest needs to vest legally, not in possession-executory interest vests legally at same time that it vests in possession-9good means it will stay in the title# if not, strie that future interest and supporting language(whole clause"-apply rule to each interest, in se+uence

2. ?if )t )@

-not necessary that we now for sure that it will vest# we only need to now we will now withinthe time limit if it did vest or not

3. ?Not )tr t$)n 2" !)rs )ftr@

-= years after the death of some life in being

1. ?so9 if in 8in5 )t t$ cr)tion of t$ intrst@

-must have a validating life to use as proof -the validating life must affect the vesting (can be any named person, even grantee, but need not be stated in grant"-cannot be a member of an open class# open class may have afterborns. 5ut if class is closed, we

can use any of them. 3eed not specify a specific person.-the interest is created when the first estate begins (0 taes life estate"

. (ints to r998r

-loo for the invalidating situation-is there a way that remainder will 37 vest w!in = years ofone of the eligible people?-restate the title after striing the invalid clause# may be left with interests in 7, or even get rid ofconditions and leave ;*0-5) 151-apply the given facts before stating the title before 10%-important whether grant is inter vivos conveyance or will-if grantor says 9my children in will,we now who they are at creation of interest b!c grantor has died-be careful of survival language 9then living-must be living at the time of the life estate. aes

problems for validating life, also delays vesting if it is condition precedent.-if you say 9heirs in the future interest, remember we don4t now who they are until person dies.ay be invalid. 151-for executory interest, it must vest in possession, so its liely thatwe won4t now in time which heirs will tae (and they often can4t be the validating lives, b!cmore heirs could be born even after person dies, unlie children"-if it says 90 and her heirs this means ;*0. &on4t worry about the heirs. 5) if it says 9to 0, but if 0 is not alive to 04s heirs, we &7 have to loo at the heirs. 0 has ;* sub$ect to execinterest in 04s heirs.



-10% nocs out most executory interests b!c they must vest in possession, and this is often couldtae too long-loo at 10% problems

6. # )s

a) Facts9o wife for life, then to ary 2all and her issuePin default of issue, to ee daughters thenliving.


Can4t have fee tail in personal property. 0ctually gives fee simple defeasible to ary andchildren, ending when last of issue dies (but could be seen as a life estate, if court wanted to". 0tthat time, living ee daughters vest and tae (then living is condition precedent". ee daughterscan4t be validating life-they are open class. 0lso can4t now who will be living when ary4schildren die. hat is why we can4t use ee parents as validating lives. Fift to ee daughters isinvalid. 5ut, if we new which ee daughters exactly, it would be good. hey could be validatinglives.

c) Issues

-must assume people can have children until they die-don4t care about grantor4s intent (can be harsh"-contrast approach to 9wait and see test or construction test (rewrite the grant so it followsgrantor4s intent"

I. o-Onrs$ip

A. orms o# Co()$nership

". Tn)nc! in o99on

-fewest rights and protections for each cotenant-each has e+ual possessory right to the whole-can be held in une+ual shares-common law presumes for tenancy in common

2. #oint Tn)nc!

-some states re+uire explicit statement to create# and possibly survivorship language-must have > unities: time, title, interest, possession-right of survivorship (when one cotenant dies, other has full interest to the whole-nothingtransferred, avoids probate"# but not an absolute right-encumbrances expire with right of survivorship

-can be severed unilaterally, in some areas secretly-traditionally must be held in e+ual shares# courts now more willing to consider contribution-can be created or severed w! or w!o strawman

3. o99unit! Proprt!

-only married people-restricts ability of one co-owner to use w!o other -tax benefits



1. Tn)nc! 8! Entirt!

-married people only except 2awaii-must have both tenants4 permission to convey-one tenant can4t do anything w!o other# creditors for one tenant can4t reach the property (butdepends on state"

. (!pot$tic)s

-0, 5, and C have a $oint tenancy. 0 conveys his interest to &. 'f this breas the unities, & has atenancy in common with 5 and C. 5ut 5 and C still have a $oint tenancy as to each other. 5 dies#his heirs get nothing. C is now cotenant with & in tenancy in common.-0 and 5 are tenants in common. 0 conveys her interest to 0 and 5 as $oint tenants. 5ut 5 doesn4twant to be a $oint tenant. We can have both. 'f 0 dies, 5 will get right of survivorship to 04s portion, and since 5 has the rest as a tenant in common, 5 holds BBM. 5ut if 5 dies, 5 canconvey interest to heirs. 0 only has her interest.

B. *oint Tenancy

". 4)!s to *%r #oint Tn)nc! o coopr)tion of )C

a) Con#eyance to Third Party

-either real conveyance, or using a strawman to convey it bac to self

b) Creditors reach $limits of this? Rules?)

c) Partition action

d) Con#eyance to elf

-not allowed by common law, some $urisdictions (no notice to other tenants"-but intent of tenant trying to sever is the same as one using strawmen-some $urisdictions focus

more on intent

2. Ri++ )s

a) Facts

r. and rs. 1iddle held land in $oint tenancy. rs. 1iddle conveyed interest to herself to severthe $oint tenancy and mae a tenancy in common (get rid of right of survivorship". 's thisallowed?


Common law did not allow this, but modern law considers this effectively same as w! astrawman. 3o need for strawman for creation or severance. oint tenancy does not have absoluteright of survivorship (other legal means to achieve this, lie conveyance of future interest"

c) Issues

-notice-When you tae out strawman, you tae away notice to other tenants. What if one $ointtenant severs in secret? 'n many states this is allowed, no notice necessary. 5ut in C0 must givenotice by recording.-if we can4t tell which tenant died first, we split property e+ually-if one tenant murders other, this severs the $oint tenancy



3. ()r9s )s

a) Facts

and % had $oint tenancy. used his interest as collateral for mortgage. died, loan not paid off.&oes % hold right of survivorship# does the mortgage survive?

b) Title Theory

'f mortgage is seen as transfer of title to creditors, this severs the $oint tenancy b!c it breas unity.6and now held in tenancy in common# creditors still have access after 4s death. 5) in some $urisdictions, if pays off the mortgage the $oint tenancy will resume (brea in unities onlytemporary".

c) *ien Theory

5ut if mortgage is a lien, does not sever unities. made a promise in himself# creditors can reachland only while he lives. his court uses lien theory, so % has right of survivorship. ost stateshave this view.

d) Third possibilityortgage is a lien, doesn4t sever $oint tenancy, but statute maes mortgage survive the right ofsurvivorship. his protects creditors.

e) Issues

-what if one tenant4s share is not enough to cover the debt? Can creditors reach the whole property?

1. Unitis &o+

;ollows the common law rules of unities. 'f unity is broen, $oint tenancy is severed. 5ut if nounity is severed, the right of survivorship continues. )nder the unity model, we may argue thatunity was or was not broen (lie 2arms case". 5ut unities are the ey. *ome states follow this

rule still. 5ut they may have rules to mae rule less harsh. &ivorce hypo: 2 and W haveagreement to split assets at divorce, W dies, though unities not broen yet, husband must honorcontract under contracts principles.

. ;r)ntor's Intnt &o+

'nstead of looing $ust at unities, loo at the person4s intent. &id he mean to sever the unities anddestroy right of survivorship when he too out loan or lease? Conveyance to self allowed underthis model. Feneral rule for leases: if lessee didn4t get both $oint tenants4 signatures, the right ofsurvivorship destroys the lease at lessor4s death. oint tenant didn4t intend to brea unities.

6. #oint B)n Accounts

-0 and 5 have $oint ban account. What can 04s creditor4s reach? )nder true $oint tenancy,creditors can reach all of debtors interest. 5ut should we go by 04s contribution? &epends onstate4s position on protecting creditors or innocent $oint tenants# who must bear the burden? 0lso,what was intent of account? 5ans give little choice about getting $oint ban accounts. 'f it seemslie a convenience account only, may not be able to reach the whole b!c the $oint tenant couldn4treach the whole.-safe deposit boxes-$oint tenant in the box does 37 have $oint tenancy in all property in the box,under general rule in most $urisdictions.



C. Partition

". /fino %. )ncis

a) Facts

% and & are tenants in common. & wants to partition in ind. %s want to partition by sale# say &4s

presence would be a nuisance (trash hauling bus".


Court presumes for partition in ind unless: separation would be impractical or ine+uitable (partsworth less than whole"# or not in best interest of all parties. &4s home is on land.

c) Issues

-courts don4t always tae personal ties to land into account (home on land, home near land".-land usually partitioned by sale in modern practice. Why? Courts usually have economic perspective. aret should determine the correct price of the land.-8oning-partition in ind might mae plots too small for 8oning. his taes land from poorer

people.-owelty-tenant gets their part of land that is worth more than their interest, but must pay othertenants to even out shares-t in com for personal property-courts sometimes order sale to force people to agree on sharing

2. Rstr)ints on P)rtition

What if cotenants sign agreement not to partition? 's this invalid restraint on alienation? %ossiblyyes, under common law. 5ut courts will consider the reasons and conditions of restraint on partition# reasonable, clear reasons are protected.

D. Possessory Rights

". *pir %. &)c)rt$

a) Facts

% and & are tenants in common in building. & has possession. % demands that he vacate or payrent. *hould tenant in possession pay the cotenants rent?


o owe rent (proportional share of maret value" there must be ouster of the other cotenant. 0failure to meet demand to pay rent is not ouster. 7uster is where tenant in possession deniesothers right of entry. 't can trigger adverse possession, or owing of rent. his is ma$ority rule (inminority less is re+uired for ouster".

c) Issues-ability to get rent and ease of adverse possession are tied-if ouster is easier to prove, both ofthese are easier. his can be good or bad for tenants out of possession. 7r, state can maedifferent standards for each. )sually very hard to 0% against cotenants.-minority rule-cotenant in possession owes rent to others. 5ut, if they don4t act on their right,there can be 0%.



2. *)rt:8)u5$ %. *)9pson

a) Facts

r. *w leased part of land to & to build boxing pavilion. 5ut rs. *w didn4t lie that and wantsto end the lease.


7ne cotenant can4t e$ect another cotenant4s lessee b!c the lessee taes the possessory rights of thelessor cotenant. 6essee can4t adversely possess against the disapproving cotenant while payingrent. rs. *w has other remedies: partition, accounting (get half of actual rent from r. *w" orclaim ouster and mae *ampson pay her half of fair rental value rent. 5ut she would give up herright of survivorship. 5ut can4t have both (if she wants accounting from husband, she approvesthe lease, gives up her possessory interest, and can4t get ouster".

c) Issues

-other remedies might not serve the unhappy cotenant4s wishes-good idea to mae agreements w! cotenants and w! lessees as to what is allowed and expected

-rs. *w could only get up to half of the fair rental value total-if *ampson didn4t now about rs. *w4s refusal to allow the lease, he could refuse her right toenter (b!c he thought he leased BBM of possessory rights" and it wouldn4t be ouster.

3. Actions for )ccountin5 )n+ contri8ution

a) Rents and profits

Cotenant who gets rent or profits from land owes portion to other cotenants. 5ased on actualreceipts. (remember, this is different from ouster where non-possessory cotenant gets half of fairmaret value of rent".

b) Carrying costs

ach cotenant responsible for paying their share of mortgage, taxes, insurance. 5) if value ofuse (rental value" to possessing tenant meets or exceeds the carrying costs, possessing tenant paysall. his rule not uniformly applied b!c it resembles paying rent.

c) Repairs

)sually one who maes necessary repairs has no right to contribution from other cotenants. 5utcotenant who pays gets credit for reasonable repairs in partition action.

d) Impro#ements

3o right to contribution for improvements, usually no credit for the cost of improvements inaccounting or partition action. 5ut in partition, the interests of the improver should be protected if possible. aybe give improved land to improver, or pay owelty, or if sold get extra for addedvalue (37 cost".

E. +arital Interests

". o99on L) *!st9

-nglish common law: 2 and W have separate property. 7wnership based on who holds title to property.



-wife had title to real property, but 2 had right of possession. %ossessory rights were alienableand creditors could reach.-arried Women4s %roperty 0ct- protected women from 24s creditors. 3ow creditors couldn4treach anything held in tenancy by entirety.-tenancy by entirety not allowed for personal property in common law

2. *))+) %. En+o

a) Facts

2 and W own land in tenancy by entirety. 2 hits %s with car and they convey land to sons. Can %sget to the land?


'n 2aw, tenancy by entirety is not sub$ect to claims of individual creditors during the $oint livesof the couple. 3either 2 nor W has a divisible interest. Creditors have notice of this.

c) Issues

-what about tort creditors? hey have no choice about dealing w! person in tenancy by entirety-tenancy by entirety can be created only by married couple. Couple could use a strawman to re-convey land they already have so it is held under tenancy by entirety. 'f couple doesn4t re-convey,land can be $oint tenancy or t in c.-tenancy by entirety-each has BBM right of possession and right of survivorship-important W27 the creditors are# states may vary on how to treat different types-t by e in personal property-2 and W have house in t by e. 2ouse burns down, they get insurancemoney. 's money held in t by e? 7ne court will say yes, it is a substitute for the house. 7r, no, andmoney is $oint tenancy (right of survivorship" or t in c (goes to heirs".

3. U* %. "00 Lincon A%

a) Facts

2 sold drugs on property held in t by e. Can gov4t sei8e it# what should the W get to eep?


)sual rule is, creditors can4t reach t by e. 5ut policy governs here. Fov4t gets 24s right ofsurvivorship# wife has possessory interests and right of survivorship.

c) Issues

-state may have one general rule for dealing w! creditors to a t by e, but could differ based on whothe creditor is.&ifferent ways to resolve creditor problem:-creditor gets ;*0 (not divisible so creditor gets it all"

-creditor gets nothing (not divisible so nondebtor gets it all"-creditor gets possessory rights of debtor and right of survivorship-creditor gets right of survivorship only

1. &)rit) intrsts %oc)8

-separate property-owned separately# all $urisdictions allow in some form-marital property-owned $ointly# all $urisdictions recogni8e martial property, differing bydefinition (may include earnings"



-e+uitable division-dividing marital property at divorce. 7ld rule-title holder gets it. 3ow stateshave their definitions of what can be divided.-alimony-associated w! fault based divorce. eant to compensate innocent spouse and supportthe lesser earner.-maintenance-in no fault divorce, given for support-rehabilitative alimony-gives decreasing support to lesser earning spouse, allows time to enter $ob

maret and then stops

. In r &)rri)5 of ;r)$)9

a) Facts

W contributed money and household care to 2 getting 50. Can 50 be marital property,sub$ect to e+uitable division?


50, or earning capacity have no characteristics of property so can4t be divided. W has otherremedies-alimony.

c) Dissent

W can4t get alimony b!c she is self sufficient. 7ther times we give W interest in 24s earnings potential (torts". )nfair not to give W something for her contribution.

d) Issues

-should courts view marriage as an economic partnership, and one spouse4s contribution as aninvestment?-if Frahams had any marital property, we might split that considering W4s contributions and notworry about his 50

6. Eus %. Eus NYC

a) Facts

2 contributed to W4s successful opera career. Wants to treat her career as martial property.


arriage is an economic partnership, so we need to broaden the definition of marital property. 0career can be marital property. &o not consider transferability or if it4s a license or degree# insteadconsider the other spouse4s contribution to the career to determine what is marital property.

c) Issues

-3I rule is a different conception of marital property-courts usually go case by case# very hard to set one definition of marital property

-double counting problems-spouse may have to pay several times to several ex-spouses for thesame career -in 066 states, separate property is eligible for e+uitable division, unless excluded by prenupcontract-a property interest in the career is different from maintenance or alimony# with the propertyinterest, it doesn4t matter if the person4s career changes in the future. 5ut with maintenance, itdoes go up or down depending on the spouses4 standards of living and situation changes.



. L)n+or+-Tn)nt L)

A. Types o# "eases

". Tr9 of Y)rs

-ends in a reversion in ;*0 to owner

-no notice involved b!c both now when it ends-death has no impact, it stays for the whole time-there is an ongoing relationship btw tenant and landlord (different from life estate/"-can be a more general time period w! unusual measure (lie as long as the 6'73 Jing isshowing in 60"

2. Prio+ic Tn)nc!

-the lease is periodic, year-to-year or month-to-month-notice is necessary b!c tenancy will roll-over if notice is not given# both need to now what theother plans to do-common law rule for year-to-year or longerQL months notice-less than year, notice same period of tenancy not to exceed L months. 3otice may 37terminate the lease in the middle of the period. ust give notice before the deadline for start ofnew period. (if one doesn4t give enough notice and leaves, landlord must mitigate damages andlease to a new person# little incentive to have long term lease"-death has no impact on the lease itself

3. Tn)nc! )t 4i

-common law-lasts as long as each desires (both have power to terminate the lease"-statutory notice re+uirements, but sometimes landlord must give more notice than tenant has to-death matters, it terminates the lease

1. Tn)nc! )t *uffr)nc

-tenant whose lease ended stays on at sufferance of the landlord. 66 can evict tenant and sue fordamages, or eep the tenant for a new tenancy-statute may define how much damages the 66 can get

B. Characteristics o# "eases

". L)s %s. Ot$r st)t

-0 court might decide a 9lease is actually a life estate or different conveyance, if the terms donot resemble one of the tenancies-N: 0 says 5 can live in his house as long as he wants to for rent. 7nly the tenant has the right toterminate. here are different conse+uences when 0 dies depending on whether it4s a tenancy atwill (5 must leave when 0 dies" or a life estate determinable (5 can stay after 0 dies"

-leases have incidents (promises btw tenant and 66" that don4t exist under other estates

2. ontr)ct )n+ con%!)nc

-a lease is both a contract and a conveyance-but still considered personal property, lie a contract-leases for R year must be in writing. ost $urisdictions allow oral leases for terms S year.-courts will consider relative bargaining power, economic affects when deciding to upholdcontractual agreements of lease



C. air 'ousing Act

". T$ *t)tut

-does not allow discrimination in housing based on sex, race, religion, familial status, handicap(some states include more, such as marital status or sexual orientation which ;20 doesn4tinclude"-loos only at discriminatory effect, not the intention-courts will consider the legitimate explanations, and if the purported reason is an illegitimate proxy for discrimination against protected class-covers discrimination in leasing or selling after maing genuine offer when place is stillavailable, advertising for housing, and providing services to tenants-66 must mae reasonable accommodations for handicapped tenants-exemptions: does not apply to someone selling single family house who doesn4t own RK singlefamily homes, as long as person doesn4t use real estate broer or discriminatory ads# also indwellings w! > or less families living independently and landlord lives there too (rs. urphyexemption"-alcoholism and previous drug abuse, infectious diseases are disabilities-but current drug use not protected# also can discrim based on immigration status-C0 law prohibits discrim based on any personal characteristics# doesn4t have rs. urphyexemption

2. *ous %. U* /pt of (ousin5

a) Facts

% claims that & discriminated against her for having children. & claims she $ust doesn4t wantnoisy people bothering the elderly tenants, and % was rude. *he was willing to rent to anotherfamily w! children.


% must show she is member of protected class, and she was re$ected for housing though it wasavailable. hen court loos at other explanations for the &4s behavior and whether the claimstands up to these. 0lso, when evaluating statements, the court uses a reasonable listener standard but will consider intent to determine how a reasonable listener would interpret the statement.'ntent is not the issue, but ends up being considered in some ways.

c) Issues

-& can4t use a proxy reason to discriminate against protected class# doesn4t matter if & intendedto discrim, only matters if that was the effect-advertisements-standard may be whether person will feel unwelcome, loos at the pattern ofconduct when less clear (all white models"-+uotas only allowed for limited periods to give greater access to previously excluded groups, or

regain a previous balance that was lost (maybe due to closing and reopening of premises"

3. F(A $!pos

-66 has G homes to rent. 6imits T of occupants. Will not rent a >-person home to a family w! Kchildren. his could be a proxy for discriminating against certain religions, nat4l origins. 2)&will litigate to resolve.=-66 won4t rent -bedroom to adult and child, or =-bedroom to adult and K children, butwill rent bed to = adults. his is not o b!c it differentiates btw adults and children. ('ssue: oftenhard to define what 9family status protects. 0ge?"



K-66 rents to woman and then sexually harasses her-one view is that if the harassment preventsher from getting same services as other tenants, this is violation of ;20. 5ut another view is, it isa violation regardless of whether if affects the services.>-66 refuses to rent to gays for fear of 0'&*-inappropriate use of a proxy# o to discrim againstgays, but not against those 66 thins have 0'&*. *o this is a violation.A-66 wants to evict tenant who has mental disability and scares other tenants-the 664s or other

tenants4 comfort or fear is 37 the issue. Iou need solid evidence of dangerousness.L-White supremacist group wants to use common room for mtg, 66 says no-could be discrim based on religion. *o 66 could either say no religious activity in common room, or say allreligions welcome.

D. Delivery o# Possession

". ()nn)n %. /usc$

a) Facts

When %4s term of years began, the previous tenant was still there. &idn4t sign express agreementfor delivery of possession. &oes 66 have to remove the holdover tenant?


wo possibilities: nglish rule (implied covenant of delivery of possession" or 0merican rule(tenant has burden of removing holdovers". Court chooses 0merican rule. enant could havesigned express agreement# still has remedy against holdover.

c) Issues

nglish rule: 66 has the burden to remove holdover tenants and put tenant into physical possession. 66 was most able to now about holdovers. enant could also contract into 0mericanrule. %ossibilities?-brea the lease-the tenant can find a new lessor =-sue 66 for damages-66 was not the wrongdoer, so don4t punish him so muchK-brea lease and sue for damages

0merican rule: 66 has duty only to deliver legal possession# tenant has burden to removeholdover. he tenant should have been aware of the situation. Can sue holdover for damages.0llows greater privacy and autonomy for tenants if more responsibilities are taen from 66 andgiven to tenant.

-hypothetical of landloced leasehold-might say tenant should have nown what he leased. 7r,might say 66 had more information and should have provided it.

E. ,u!leases and Assignments

". Ernst %. on+itt

a) Facts

6 leased to . transferred to for the rest of the lease, but they called it a sublease. agreedthat he was still liable for original lease. defaults on rent and 6 sues . 's liable?


&epends on if the transfer was a sublease or assignment.



-*ublease-created when retains some interest# can be reversion (in some courts right of re-entry counts when otherwise transferred all interest"# is not liable to 66=-0ssignment-created when transfers all interest for the rest of time of lease# is liable to 66.'n 572 cases is liable for 66 for his or 4s default.his is common law rule# newer rule loos at the intent of parties. &oesn4t matter if they said9sublease when they meant assignment.

c) Issues

-if transfers all interest in a part of the leased premises, courts usually find a partial assignment-privity of contract and privity of estate-under original lease, had both. 2e is bound to 66through contract, also through possession. assigns to : has estate only# retains contract.'f assigns to =, has no liability b!c no privity of estate or contract. )nder sublease, no privity is transferred.-'f subleases to , can be held liable to 66 if:-state allow =6 to sue for rent b!c rent is a serious obligation, can sue person in possession=- could also be held liable under privity of contract if expressly or impliedly (through anagreement w! or a similar lease w! 66 as implied third party beneficiary" agrees to be held tothe terms of the original lease

-if gives up primary lease voluntarily, the sublease!assignment remains intact (see %estana case"-;'1* loo at starting point (common law", then thin of the factors that would move you awayfrom that common law outcome

2. (!pos on *u8)ssAssi5n9nts

" assignment between and . agrees to pay ELBB for rent to , and pays EBBB rent to66. hen stops paying. 2ow much can 66 get from ?-&epends a lot on notice-did have notice of the original lease? ight say that hasresponsibility to chec the title of property and find out about original lease. ither constructive(should go see the recorded title" or in+uiry notice (should as lessor about state of title".-7r, might not expect to find out the lease, tenants usually not sophisticated enough (mightdepend on residential vs. commercial lease"-Was it really a sublease? 3ot by common law (goes by time left on lease", but by intention itmight be.=" 6QR, then assigns to who agrees to assume all covenants of lease. hen assigns to=, = assigns to K, K defaults.- is always liable )36** gets a novation, absolving him from further liability forsubse+uent tenants- may have privity of contract if court thins it is implied, so is probably liable. Would beliable for the rest of the lease, not $ust while is in possession-= has neither privity of contract, nor privity of estate. 3ot liable-K has privity of estate, liable to 66.-giving permission to transfer once sometimes means all further transfers are o too

. Permission to Trans#er "ease

". <n+) %. Ernst Pst)n)

a) Facts

66 leases to 6. 6 subleases to . hen 6 assigns his interest to %estana. he sublease to survives. 6ease re+uires that get permission before transferring lease. wants to assign toJendall, but %estana refuses.




Common law ma$ority rule: where lease contains an approval clause, the lessor can arbitrarilyrefuse to approve an assignee. 6 has no duty to incur costs for to transfer lease.inority rule: lessor must have a reasonable ob$ection to . 'n this court, must be a commercialreason based on 4s financial stability, suitability of proposed use, legality of use. Cannot berefusal based on personal taste, or wanting higher rent.

c) Issues

-both 6 and could have had more explicit clauses in the lease, providing for either reasonable or arbitrary refusals. he law determines the default rule, then 6 or can negotiate and contract for amore favorable clause in lease-courts differ on factors used to determine reasonableness (may differ whether residential orcommercial"-could argue that we should follow common law rule, that is what 6 and both expected whenthey signed the lease-7dd outcome: may be able to discriminate against , but not against for exact same reasons.ust be reasonable about . Why? Courts want to protect , mae his interest alienable.

2. (!pos on R)son)8 onsnt to Tr)nsfr

-Courts decision often has to do w! how it views 66, as a whole person!businessman or $ustnarrowly as a 66 of this particular property" 6QR. wants to transfer to . 6 refuses b!c is tenant in another building of 64s and 6 isnegotiating a new lease, doesn4t want to lose as tenant in that building.-how specific does the economic harm have to be? &epends on court. ay feel more sympathyfor 66 (already negotiating, consider his whole business" or for (66 still has original lease,consider narrow economic factors of $ust this building"=" 6 refuses b!c 4s business will compete w! 64s own business, or other tenants in the property. &oes court view 64s whole economic situation, or $ust narrow economic effects on this property? ay discourage 66s from having other businesses.

-what about if 6 refuses b!c he gets portion of profits from 4s business and charges low rent, and will probably be less profitable? Court may consider incentives for 6 to invest in higher ris businesses. 0lso, depends on if court focuses on rent alone, or on 64s whole business investment.

&. ""-s se o# ,el# 'elp

". Br5 %. 4i!

a) Facts

66 locs out for breaching lease (her restaurant violated health codes" and abandonment (but claims she closed for repairs". Common law-66 can use self help if legally entitled to possession,and uses peaceable means.


he locout was forcible, could lead to violence which courts want to avoid. 5ut court states newrule that all self-help is wrongful, 66 must use legal proceedings.

c) Issues

-bar on self-help is not ma$ority rule, but is a trend. 'n some $urisdictions it applies to residentialleases only



-though ma$ority rule is that peaceable self help is o, $urisdictions differ widely on what is peaceable# may be so narrow that 66 effectively can4t use self help-summary proceedings-help speed up the e$ectment process, but 66 and can4t bring up a lot ofissues so they may need to mae further suits as well, which taes more time U E for both-thus some tenant groups would allow 66 self help if 66 and can agree peacefully, and damagesif 66 is wrong

'. Duty to +itigate Damages

". *o99r %. <ri+

a) Facts

wrote to 66 surrendering lease on apt. 66 did not reply. 66 turned down a prospective tenantwho wanted to rent that apt. claims 66 failed to mitigate damages.


a$ority!common law-66 has no duty to mitigate damages. 66 need loo only to for rent.1ecent trend-there is duty based on contract principles. 66 must mae reasonable efforts to

mitigate. Who has duty to prove reasonable steps? &iffers by $urisdiction.

c) Issues

-surrender and acceptance-abandoning apt is implied surrender by . 'f 66 accepts, no future rentis owed. 'f 66 retaes possession, may be seen as implicit acceptance. 66 must mae intentionvery clear, give notice to and all.-some states apply ma$ority rule (no duty" to all leases, some to commercial, some to residentialonly-what are reasonable steps to mitigate? 66 must treat property as part of his vacant stoc, mayhave to advertise in reasonable way, try to get same rent as paid, can4 give up, can4t re$ectsuitable tenants (664s usual methods, if court thins inade+uate, may not be enough forreasonable mitigation"-conse+uences for failure to mitigate-66 may recover no rent, or may recover the difference btwdue rent and the amount of loss that could have been avoided (;1< by renting to new ". differs by $urisdiction- may also owe the difference btw original rent and the new lower rent that 66 must accept# may also have to pay costs of mitigation (ads, cleaning, repairs"-5) if the new rent is higher than 4s rent, 66 should accept surrender, b!c can claim thatexcess b!c 66 was renting on 4s behalf

2. /iffrnt possi8 rus 8)s+ on co99on ) )n+ n rfor9s

-many possible combinations, starting w! common law where 664s only duty is to deliver legal possession, up to 66 having all of the above duties. may also have certain responsibilities, for

example finding sub tenants if defaults. 0lso may have different rules based on 4s reasons fordefaulting.-66 and groups may be willing to compromise, based on actual costs of the rules. he 66 mayaccept duty to mitigate, but won4t want to have to accept 4s subtenants. groups may also wantto limit 66 duties, b!c costs get passed to all other s. 3otice is also a concern-how sophisticatedare 66 and , does it differ by type of lease (commercial vs. residential".-66 and may also opt in or out of different rules in the lease based on the default. Will courtsaccept? &epends on bargaining power, economic impact, etc.



I. Covenant o# uiet En0oyment

-either express, or implied ($urisdiction decides to imply it in lease"-means that 66 has a duty to maintain premises so can use them as intended, assumes that 66nows 4s purpose for leasing-applies to residential and commercial property

". R9+is

a) Constructi#e #iction

-a common law exception to the independence of obligation for rent and 664s promises to .oday, these obligations are more generally mutually dependent, not as much need for c eviction.-if 66 substantially breaches the covenant, then it is $ust as if has been evicted. must moveout, doesn4t have to pay rent.- must notify 66 of problem, give 66 time to fix it, and then leave in reasonable amount of time-5) if court finds no grounds for constructive eviction, had abandoned, and 66 may have tomitigate damages

b) *esser +reach

- does not have to leave the premises, can pay less rent and!or get damages. ay be used asdefense when 66 sues for bac rent. can sue for damages

2. Rst R)t! %. oopr

a) Facts

leased ground floor for business, ept flooding. 66 would fix problem when needed. hen 66died, new 66 would not fix. moves out, and claims constructive eviction when 66 sues.


did not accept premises in their current condition (as did under common law". 66 promised to

fix the problem. ;urther, problem really resulted from common areas which 66 must fix. 66 alsoclaimed flooding wasn4t permanent, but the breach didn4t have to be constant, $ust had to be aregular problem.

c) Issues

-most $urisdictions do not relieve of liability for rent for constructive partial eviction due to breach of +uiet en$oyment

3. Pro89s

" is tenant at will. 66 interferes w! 4s business of premises. vacates, rents space for higherrent, and sues for damages. *ince this is a t at will, the lease lasts as long as both want it. herecan4t be constructive eviction. 5ut court could find that the tenancy was actually periodic. *o it

depends on what type of tenancy, but not absolute.

=" vacates, stops paying rent, 6 sues. claims that 6 breached covenant of +uiet en$oyment.a-6 fails to control excessive noise caused by other tenants. 's 6 responsible for third parties?Courts may consider 64s relative control over situation, importance of being self-sufficient andresponsible. 1emember-breach might not be bad enough for constructive eviction, but if stayshe could get damages, or sue under contract law



b-third party criminal activity at property, 66 installs deadbolts and hires guards but doesn4t solve problem. Concerns: did 66 do enough already, relative responsibility!control of 66, whether problem existed before moved in.c-anti-abortion protestors causing problems for who runs clinic. 6 does nothing. Court maydecide that 6 new the proposed use of the property, should have made sure that property wasready and appropriate. 7r, might be 4s responsibility (as under common law".

K" many courts say can get declaratory $udgment of constructive eviction before moving out#others may thin should bear the ris of vacating and ceasing rent

*. Illegal "ease

-if premises unsafe!unsanitary, may be an illegal lease-must have defect at time of lease (can4t arise later"-must be substantial (not $ust minor violations", and affect health and safety- can stay but withhold rentis tenant at sufferance, 66 may be entitled to ;< in defective condition

1. 2arranty o# 'a!ita!ility

". (i+r %. *t. Ptr

a) Facts

% suing 66 for damages and paid rent, claims 66 failed to eep property habitable after she asedmany time for repairs and did some herself. % remained in possession.


here is implied warranty of habitability in every lease, can4t be contracted out of. 3o assumptionof ris if nows about defects. Court loos at housing codes, also general impact on health Usafety of . must notify 66, allow reasonable time. 1emedies: stay in possession U sue fordamages or withhold rent, or deduct for cost of repairs# vacate U no rent. 3o need to move out torecover# doesn4t re+uire constructive eviction.

c) Issues

-not all $urisdictions have the warranty, or apply it to all leases (long term leases or single familyresidence"-could also be an express warranty-if warranty is breached, can withhold rent. 'mportant implications for scope-may be easy for to not pay rent-may decide not to have warranty for economic reasons (maret determines price and condition#don4t want to price people out of maret" or to use other methods to increase fit housing

2. *cop of 4)rr)nt!

-usually doesn4t cover luxury items lie gym, elevator. ;or these problems can use breach ofcontract remedies-9fit for human habitation-could mean up to health!safety codes, or could be something beyondthat. )sually $udged by view of reasonable person, but actually very sub$ective.-continuing loud noise or lac of 0C!heat may count-responsibility for third parties, such as 664s staff stries-similar concerns as w! +uiet en$oyment,may consider 664s identity (do we view 66 as an employer, or $ust 66?" ay not $ust considercondition of premises# 66 may need rent to remedy the situation, not good to allow s to withhold



-usually applies $ust to housing# commercial lessees can use +uiet en$oyment (may be able toclaim constructive eviction and vacate, stop rent# or stay and withhold rent and!or sue fordamages"-warranty may increase homelessness, but maybe only temporarily

3. &)surin5 /)9)5s

-agreed rent minus fair maret value as defectiveasier to deal with, good if goal is to prevent price gauging, but could be 8ero damages. 3ot goodincentive to get rid of unfit housing.=-fair maret value as warranted (up to code" minus the agreed rentay also be 8ero, could pay more than worth even up to code. 7ther factors involved in agreedrent than condition, thus difficult to use.K-punitive damages>-;< as warranted minus ;< as defective<ery hard to figure out ;< of either. ay argue that agreed rent is the ;<. Food toincentivi8e fit housing.A-subtract M diminution in usability from the rent being paidCommon solution, but maybe not as good for incentivi8ing habitable housing

". Retaliatory Eviction

-66 can4t evict too soon after maes a legitimate complaint.-there may be a statutory time period where 66 must prove behavior was not retalitatory# aftertime period must prove retaliation-also relates to rules about +uiet en$oyment-if 66 is responsible for third party breaches, then 4scomplaint about third party is protected# but if 66 has no duty, eviction of for complaining isnot retaliatory

I. Rcor+in5 Acts

A. Reasons #or 'aving Them

". Notic

-usually no re+uirement for recordation to validate the conveyance between the partiesthemselves (they have actual notice"-provides notice to the general public and to future buyers, also helps resolve disputes about whohas better claim to same property

2. Rpositor!

-provides for a central, reliable place to store the documents where they won4t get lost ordamaged or changed

3. Forcs ) 4ritin5

-the terms of the conveyance are made clear, courts can go bac and examine it-also clarifies where property is, who was involved, b!c recordation won4t be valid w!o thesespecifics

1. Irr%oc)8

-neither party can change their mind or claim the conveyance never happened



B. 3alidation o# Conveyance

". P)tinc c)s

-b!c of statutory re+uirements, the $oint tenancy was not severed until it was validly recorded.1ecorded for these purposes when deposited.-what does deposit mean? Will vary by $urisdiction# might mean giving it to the cler w!o

intention of giving it bac# or could mean can4t get bac (differing views of when it isirrevocable"-re+uirement for recordation will be different whether the intention is to validate the conveyance by maing irrevocable or to provide notice to the world (where full recording!indexing isnecessary"-recordation may also be necessary to validate conveyance for lenders!creditors who want tomae a claim on another4s property

C. Types o# ,tatutes

". R)c

9every conveyance of real ppty is void against any subse+uent purchaser for a valuableconsideration whose conveyance is first duly recorded-real ppty-statute defines what interests it applies to# could be different types of statutes fordifferent types of interest-subse+uent purchaser-can4t be used by =nd in time person who received as gift. %erson paying byinstallments usually not a purchaser.-valuable consideration- differs what it is# usually must reflect value of the property.-first duly recorded-validly recorded per rules of $urisdiction-notice (actual or otherwise" is irrelevant

2. Notic

9no conveyance shall be good against subse+uent purchasers for a valuable consideration and w!onotice-w!o notice-depends on how extensive search must be, can4t have actual notice even if prior wasnot recorded-$ust loo for last F;%# don4t care about recording-but recording is relevant to determining notice

3. R)c-Notic

9every conveyance of real ppty is void against any subse+uent purchaser in good faith and forvaluable consideration whose conveyance is first duly recorded-F; at time of conveyance, not at recordation-must be the first F;% to record

1. 4$o T$! )pp! To-only apply to subse+uent purchases, not the first grantee-a seeming prior grantee may actually be a subse+uent purchaser, depending on courts definitionof when the conveyance becomes valid (grantee filling in his name on deed"-a subse+uent F;% can get title from a grantor w! no actual interest to convey, even a bad faithgrantor -in race-notice, if subs purchaser gets title from someone who was F;% and recorded, the subsclaim is valid even if subs purchaser was bad faith



D. Constructive/Actual 4otice

-if the conveyance is validly recorded there is constructive notice-if person loos up record, or nows from other sources, there is actual-if there are circumstances where reasonable person would as, there is in+uiry

". T!p of In+> A%)i)8

-most $urisdictions have grantor!grantee indexes, a few have tract indexes. any of the problemsresult from F!F indexes

2. E>tnt of *)rc$

-the extent of the search differs by $urisdiction. What search is necessary determines whether person had constructive notice or not.-courts concerned about the burden placed on searchers, what is reasonable to loo for and whatis too costly

a) Prior or ubse,uent Con#eyances

-if 0 to 5 records, then 7 to 0 records, may not be re+uired to search before 0 got the property

from 0# if not re+uired, there was no notice of conveyance to 5-if 7 to 0, then 7 to 5, 5 records, 0 records, may not be re+uired to search after 54s record forother conveyances. hus no notice of 04s prior claim, if $uris has minimal search

b) Different "ames

-may be misspelled name, or listed under a different name (maiden!married name"-some $uris re+uire you to search for other names w! same starting letter and similar sound-others thin this is too burdensome on searcher

c) -other &ubbard Clauses

-conveys 9all my interest in something# usually valid btw the parties, but may not be enoughnotice for subs purchasers

-may need to be more specific about the land involved-some $uris don4t allow these clauses at all-if this clause isn4t enough to give notice, then it4s lie no recordation at all

3. Du)it! of Prior /+s

a) Recordation of Prior Deeds

-often re+uired to record all prior deeds in your chain of title to have a valid recordation. ustclose the gaps in the chain.-statute determines how far bac you must record

b) Defecti#e Prior Deeds

-even if subs person gets title in F;, if the prior deed was defective then subs deed is no good (ifrace!race-notice"-does defective deed give notice? may differ whether the person searched record or not# whetherdefect was obvious on face of document or not

1. Notic of Rstrictions

-a development plan may have restrictions written into it. if so, it is easy to trace, that would probably give notice



-also, if other tracts before you in that plan have restrictions and say these apply to all lots, thatmight give notice (even if deeds before that didn4t mention restrictions"-if plan doesn4t list restrictions, and some lots have them!some don4t, may have notice, shouldloo at the general pattern of restrictions

E. Pro!lems

". O to A, O to B, A rcor+s, B rcor+s

-notice-5 wins even though he had constructive notice when he recorded. 0ll that matters is goodfaith at time of conveyance.

2. O to A, O to B, A rcor+s, A to , B rcor+s, rcor+s

-notice-C wins b!c C is last F;% of value-in race-notice, C wins b!c 0 recorded first and C got valid title from 0. &oesn4t matter if C evenhad notice of 5 at time of conveyance (shelter rule"

3. A to B, no rcor+ O to A, no rcor+ B to , rcor+s A to /,rcor+s O to E, rcor+s

-in notice-C and & should close their chain of title. 7therwise, there is no notice to subs purchasers. 'f they didn4t do that, is last F;%.-race-notice-if C and & did not close their chains of title, then is the first F;% to recordcorrectly

1. O to A, no rcor+ O to B, nos of A's intrst, no rcor+ O to, no rcor+ B to /, no rcor+ A rcor+s, B rcor+s, / rcor+s

-notice-& was last F;%. 7ther version of shelter rule applies here, doesn4t matter that 5 was badfaith. 6oo for last F;%, and whoever gets interest from them wins.-race-notice-0 was F;% who first recorded. 0 wins.

. *)9 )s 1, 8ut t$n A to E, rcor+s-notice- is last purchaser. 5ut F;? &epends on how extensive a search the $urisdiction re+uires.'f extensive, would have seen the conveyances to C and &. hen & wins. 'f minimal search, would have no notice, and would win.-race-notice-0 was first F;% to record. got his interest from 0, so doesn4t matter if was F;(shelter rule". ust loo for first F;% to record, anyone who gets interest from them wins.

II.*r%itu+s

A. Easements

-easements are real interests in land. Contract issues not important, except for statute of fraudsre+uirements. Iou can always do a lot more w! a written , maing own terms that differ from

default rules.

". oc)8u)r!

-*ervient tenement-property that has the servitude on it, bears the burdens-&ominant tenement!estate-the servient estate serves its needs, getting the benefits-0ppurtenant to land-the easement will remain regardless of who owns either property, tied toland itself, has to do w! state of owning land# easier to figure out how to terminate it, b!c tied towhoever owns the land associated



-'n gross-the rights to come onto property are irrespective of ownership of land, you can use theeasement independent of your ownership of land in the area. We need different ways ofterminating, b!c not easy to identify who is benefited.-types of easements-indefinite, license, profit (right to tae something"

2. r)tin5 )n E)s9nt

)sually re+uires writing according to statute of frauds. xceptions:

a) stoppel

-either maing license irrevocable, or finding easement-re+uires permission and representations from *, reasonable reliance on that permission, changein position based on reliance, thus unfair to re+uire written grant

b) Implied from prior use

-for implied easements, & and * must have been under same owner -implied from prior use is forever -if & and * come together under same owner again, then easement disappears.

-must also be necessary, and apparent to buyer of *

c) Implied from necessity

-must be common owner# will disappear when under C7 again-focuses on necessity at time of severance of & and *-usually implied by 3 is based on intention of parties, but can be implied based on public policy (don4t want landloced land"-may re+uire strict necessity (37 other way off land"# or could allow when other ways off are toocostly, difficult-implied easement by necessity will disappear when no longer necessary-some statutes have provided a process to condemn an by 3, no common owner re+uired, & pays * damages

d) Prescription

-exclusivity, continuity, adversity rules could be different from 0% rules# encroachment is another possibility (anillo"-there must be a trespass (golf ball hypo-not a trespass b!c not intentional"-some courts re+uire ac+uiescence of owner (7 can4t say get off my land, or give explicit consent"to 0% an (holdover of lost grant idea that easement was actually granted in the past"-5) some courts say any implicit permission invalidates claim# or 7 must effectively interruptor stop the adverse use to stop the *76 cloc -for exclusivity, some courts don4t re+uire that &4s use be exclusive of *4s use. * can useeasement as well.

-for public proscriptive easements, 67 must be put on notice that general public is claiming right,not individuals-but some courts use old legal fiction of implied for lost dedication of the land to public use-could change!extend the use and start the cloc running too

3. *cop of E)s9nt

-default rule: scope includes uses that are reasonably foreseeable-o for manner, fre+uency, intensity of use to change to accommodate normal development of &



-surcharging an is different from increasing the scope. his is when & increases the burden,maybe driving trucs instead of sedans down the right of way.-private easement of right of way usually does not allow & to install utilities above or below theright of way-established rule-location of the cannot be changed by * w!o permission of &. 5ut newer possibility-* can change location at his expense if change doesn4t significantly lessen utility of

-proscriptive easement is usually not as broad as other easements-uses made of proscriptiveeasement must be consistent w! the general ind of use by which easement was created-if the scope of a written is narrower than proscriptive, then there is less incentive to get inwriting

1. Tr9in)tin5 )n E)s9nt

-by abandonment# must be clear intention by & to abandon-easement can be terminated by prescription, if * wrongfully and physically prevents use of for *76# can also narrow the scope by preventing some uses by proscription-merging the & and * under one common owner -* can buy the from & and then terminate it

-put shut-off terms into the written agreement (as long asP"-estoppel, owner of & maes representations that * reasonably relies on and changes position

. (o8roo

a) Facts

&s gave permission to use road for %s to build house. 0fter %s built home, repaired road, &sobstructed road.


)sually licenses are revocable, but can become irrevocable through estoppel. stoppel applies if&s made representations that %s reasonably relied upon to change their position (spend E buildinghome".

c) Issues

-irrevocable license can be different from finding easement. 6icense will last only as long asnecessary. *o if %4s new house burns down, license is gone. 5ut easement lasts forever. *omecourts don4t have this distinction# both last forever.-what is considered 9reasonable reliance can differ# court may thin relying permanently on the promise is not reasonable-&efault rule: * has duty not to interfere w! easement, & must maintain and repair theeasement-damages to *? court may decide to give them if it wants to acnowledge that some people are

good neighbors, and didn4t mean to put the other in a bad position, but didn4t intent

6. )n *)n+t

a) Facts

7wner of K lots used part of land to run a sewer line for benefit of rest of land. hen sold burdened land to %, benefited land to &s.




7wner cannot have an easement on own land. 5ut can have a +uasi-easement. asement can bean implied from the parties4 intent based on prior use if it is apparent, continuous, and necessary.% had in+uiry notice of the sewer.

c) Issues

-usually harder to imply a reserved easement in favor of grantor b!c grantor could have put it inwriting, but not always-if court doesn4t lie fact that implied from prior use lasts forever, may mae it harder toestablish at beginning, or increase ways to terminate it-court may also loo at what grantee paid, if it reflects a lower price for the # or may thin thatgrantee is getting some benefits too (lie here, getting to use the sewer line himself"

7. Ot$n

a) Facts

% and & got their land from same owner. % wants to use &4s land as easement to get off his

landloced land. *ays he has easement by necessity or prescription.


ust have been necessary at time of separation of * and &. 3ot the case here. 0lso no proscription b!c original owner can4t 0% against himself, and the use by % was w! permission.

c) Issues

-courts often consider the public policy of not allowing landloced land. Could mae it easier tofind an easement if sympathetic (lie if person got the land in a will, couldn4t negotiate thewritten deed"

. Bron %. oss

a) Facts

% had an through &4s land to get to lot 5. hen % bought lot C and began using the to get tolot C too, though w!o increasing burden on *. Can &s stop this use as extending the scope?


he easement cannot be used to reach any land that was not part of the original &. his ismisuse of easement. 5) &s get no in$unction b!c the misuse didn4t increase the burden, and forin$unction there must be substantial in$ury. &issent-should grant in$unction for the trespass(misuse of is trespass". %s should use statutory process to condemn an by 3.

c) Issues

-many possible e+uitable remedies, lie in$unction, sometimes can award damages, or force atransaction (sell the "



G. Prs)ut %. U*

a) Facts

%s own land that has railroad right of way running across it. he state changes the 11 path into a public trail. 'ssues? Who owns the strip of land w! path, does scope of include using it for public trail, had terminated prior to maing a public trail?


ven though grant said it gave path to 11 in ;*0, court decides the custom of eminent domainwas really to tae an only, and didn4t pay enough for ;*0. Can change the use, but only asreasonably foreseeable to the original scope. %ublic trail was not (but could have gone other way".Court decides taing up the 11 ties is abandonment, but could have found no such intent. heremust be clear intent by & to abandon.

c) Issues

-usually saying 9right of way will create easement# but some courts allow ;*0 when deed showsthat intention (lie here"

"0. N5)ti% E)s9nt

-the * cannot do something on own land for the benefit of &-very limited, must fit one of below categories. 'f not, it is a covenant. asements are better, itgoes on forever and you can enforce it better.

a) !ld Types

-blocing your windows=-interfering w! air flowing to your land in a defined channelK-removing the support of your building>-interfereing w! the flow of water in an artificial stream (all landowners have duty not tointerfere w! natural streams"

b) "e. Types

-express easement of unobstructed view-solar easement-won4t bloc solar panels-conservation-won4t develop your land, will conserve it

B. Real Covenants

-0 promise between two landowners for one to do something!not do something in relation to hisland for the benefit of the other. 1eal covenants run with estates in land. 1emedy: damages-creation-can arise from estoppel, implication, prescription-correct? 7r can4t?

". o99on L)

a) &ori/ontal Pri#ity

-must have hori8ontal privity btw the original covenantors for burden to run-means that the promise is in a written conveyance of an interest in land-conveyances that can +ualify-66!, grantor!grantee, easement, straw



b) 'ertical Pri#ity

-must have vertical privity btw original covenantor and successor in interest for benefit and burden to run-runs w! estate# so successor must have the same interest-covenant does not run to adverse possessors-the prior owner is still liable if no <% to successor (so if 0 has ;*0, conveys ;*& to 5, 0 is stillliable for covenant"-prior owner not liable if <% with successor# 5) contrast 66! law, needs a novation to getout of privity of contract liability

c) !ther Re,uirements

-notice, intent to run with the land, touch and concern

2. &o+rn L) Rst)t9nt T$ir+C

a) &ori/ontal Pri#ity

-no longer re+uired

b) 'ertical Pri#ity

-for affirmative covenants-benefit and burden run to estates of same duration, burden runs toadverse possessors, life tenants, lessees-negative covenants run to all subs owners and possessors

c) !ther.ise same

C. E%uita!le ,ervitudes

-remedies: e+uitable such as in$unction, specific performance-creation-by implication in limited circumstances, not by prescription-re+uirements: no 2%, <% for benefit to run (C6 no benefits in gross", notice, touch and concern

(but contrast restatement", intent to run with the land# 5) notice only for subs purchasers, if noconsideration no need to have notice. (these are elements# if you don4t satisfy one, doesn4t+ualify"-remember, a covenant could actually be a negative easement if it fits in the categories, then don4tneed to worry about re+uirements (x: promise not to build or change historical site could Qconservation easement"-defeasible fees-similar b!c they control land, but remedy limited to forfeiture, harder to enforce

". &o+rn Trn+s

-no difference btw real covenants and *-restatement view of U C-almost all covenants valid at the start (freedom of contract". %utsfocus on termination doctrines instead.

-'nvalid to subs purchasers if they violate public policy (freedom of contract very important"includes: arbitrary!spiteful# burdens constitutional right# imposes unreasonable restraint onalienation# imposes unreasonable restraint on trade or competition# unconscionable-for affirm covenants-<% for benefit, reasonable rules for burden-negative cov-no <% re+uired (applies to anyone who possesses!owns"



2. Tu %. &o>$)!

a) Facts

& purchased land w! notice of covenant, but doesn4t meet re+uirements for real covenant inngland.


Court can enforce covenant in e+uity.

c) Issues

-* can be affirmative or negative-* are interests in land, run w! land and not estate-% can sell the in$unction to &, lie getting damages

3. *)n8orn %. &cL)n

a) Facts

& built gas station on property. &eed did not list any restrictions. 7ther lots from same grantoraround it were restricted to residential use.


Court implies reciprocal negative restriction. & had notice from the other restricted lots fromcommon owner# also had in+uiry notice from other lots not having commercial uses.

c) Issues

-three possibilities: imply covenant from a recorded plan (C0 rule"# imply from reciprocalcovenants written in prior deeds (saying that common owner4s remaining land is also restricted"#or imply from a pattern in deeds and in+uiry notice. 1elevant to how broad a search in records isnecessary# when there is notice.

-problems w! this case-if plan had not emerged when prior owner of &4s land bought it, wasn4t hea F;%? Why shouldn4t & get shelter rule? his case means & can4t get it. (this case is minorityrule"# this rule also maes buying land more expensive and risy-what is fair!reasonable? *hould we be more concerned w! the prior landbuyers who didn4t getthe reciprocal covenant in writing, or the new buyer who may have had notice but thought therewere no restrictions (and both paid accordingly"?

1. Nponsit

a) Facts

% is association created to collect E that &s must pay as a covenant for maintenance of commonroads!areas.


hough not real <%, which is necessary since benefit can4t be in gross, it is there in substance.0lso touches and concerns b!c &s get benefit to their land value from it.

c) Issues

<ertical privity of estate



-should we view a neighborhood association as representatives!agents of the whole, or as property owners themselves? hen could any homeowner sue another? *ome $urisdictions stillre+uire strict <% for benefit to run-common law-covenant can4t be created for third party benefit

ouch and concern

-traditionally affirmative burdens, esp paying E did not touch and concern land. ain modernexception-common interest communities.-restatement view of U C-generally all covenants are valid at the start, policy concerns mayinvalidate them from running w!land. 6oos at effect on maretability, unconscionable.-modern view- U C if the benefit to land outweighs burden overall-also thin about who is bringing lawsuit, and what you would say if it was the other guy (might be different answer-should it?"

. )utt

a) Facts

% bought land w! covenant that & would get to build any structures on it. & says price reflects

covenant.


&oesn4t run w! land b!c it doesn4t touch and concern land. 5enefit can4t be in gross# it must benefit land (unless community interest, part of neighborhood plan"

c) Issues

-some $urisdictions allow benefit to be in gross, creating special termination if beneficiary becomes too hard to locate-but o for easement benefit to be in gross

6. *cop of o%n)nts

-for definitions of the terms of covenant, could loo at contract itself, municipal housing codes,common understandings-courts may decide to narrow the scope of the easement, rather than terminating it# or creating anexception for the ;20 but otherwise eep the covenant (to eep out students for example"-waiver can terminate a covenant if beneficiary doesn4t enforce it

Property Bryant FA 2003 2

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Transcript of Property Bryant FA 2003 2