Property Outline Fall Final

8/8/2019 Property Outline Fall Final

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3 types (traditional)Bailment for hire: voluntary and compensation; great careGratuitous bailment: voluntary w/o compensation: reasonable careInvoluntary bailment: non intentional; lost/mislaid property: slight care

Bailee Duty of Care

Duty to return or else conversion occursMost courts require Reasonable care required for all levels of bailment

What Must be RedeliveredExamplesGrain Silos: similar quality grain and same quantityCattle: same number; herd is subject to bailment not indv.If bailor expects basic change in nature of chattel, no bailment

Examples:

Good Faith Purchasers (BFP)BFP obtains title against true ownerOnce BFP enters chain of title all subsequent holders of title are BFP.Person cannot transfer better title than he has.Void: no titleVoidable: title until true owner takes action

Statutory BFPTrue owner entrusts property to merchant of that typePurchaser paid valuePurchaser within ordinary course of business

Purchaser good faithPurchaser had no knowledge of true owner's title

Equitable BFP

True owner cloaked vendor with indicia of title (Title document, bill of sale)Purchaser paid value for goodPurchaser was acting in good faith. (investigate title with due diligence)

ExamplesOlive removes brooch during dinner. Rolfe steals brooch and sells to Benny a good faith purchaser.

Same facts as above except Rolfe sells brooch to Benny, who sells to brooch in Rolfe's jewelry store.

Olive wins in both circumstances since Rolfe had no original title and cannot transfer void title.

Gifts

Donative transfer: transfer without valuea.Cannot be subject to condition subsequent (act or even must occur before gift is made or effective)Gift is irrevocable once transferred.Elements of Donative Transfer

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Intent: clear convincing evidence1.Law assumes no one would give away property for freeDelivery2.Actual, constructive: complete legal control of thing transferredSymbolic delivery: thing delivered to represent another.If fundamentally impossible to delivery then no delivery is needed.Acceptance (or no rejection)3.

Inter vivos gift: gift between living personsRemain revokable until possession is transferred to donee.Promises to make gift in future unenforceable!

Gift Causa Mortis : gift of personal property made by party in expectation of death, then imminent, and uponthe essential condition that the property shall belong to the donee in case the donor dies as anticipated,leaving the donee surviving him, and the gift is not in the meantime revoked."concrete, unequivocal, and undisputed"Express revocation within reasonable time of recovery revokes the gift.Not favored in most jurisdictions and courts will construe strictly.

Odysseus writes and signs a check to Don, drawn on Odysseus' checking account, but dies before Doncashes it. Does Don have a right to cash the check?

1.

No donor could have stopped payment on check at any time before it was cashed, and donor's deathrevoked authority of bank to cash, gift was incomplete because donor's retention of power to revokegift. Check is not a deed of gift and power to ash is not the same as a gift.

In Sept Lee hands Peter a signed paper promising that Lee will give Peter 10,000 shares of Profit asxmas present. Lee dies in November devising all his stock and bonds to Carol. Who gets the stock?

2.

Carol wins. Lee's promise is unenforceable because Peter gave no consideration. When Lee died, he waslegal owner and stock passed according to his will.In September Lee transfers 10,000 shares to Peter with qualification that Lee will receive all paid on or

before Xmas. Lee dies in November and leaves all stock and bonds with Carol. Who gets the stock?

3.

Peter keeps stock. Gift in Sept was present gift with present intent to make gift, delivery, and acceptance. Lee's retaining the income for 4 months does not make the gift incomplete.

Problems

Adverse Possession of Personal PropertyFour Theories of APStatutes generally punish true owners who sit on rights for too long.Adverse possession statutes may reward person who uses, improves property.Used as tools to prove lost grants or correct conveying oversightsEfficient transfer of property

Person uses property statutorily amount of time and becomes owner of property even against true ownerthrough adverse possession.

Statute of Limitations governs number of years needed for adverse possession in each state.

If possessor merely has color of title (faulty deed) statute shorterAdverse possessor only gains ownership of land he actually occupies, unless color of title

Hostile- without owners permission1.Actual possession- not constructive (i.g. building house, farm, fence, paying taxes, mortgaging land or2.

Elements

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selling.)Visible- possession can be perceived- not secret and must represent to the world he/she is owner of property. Indicate to reasonable person someone is claiming property

3.

Exclusive- owner never in possession (sole physical occupancy)4.If owner is still occupying land, then adverse possession does not existContinuous- possession is not surrendered without interruption (possessor merely use property as trueowner would)

5.

Period of statute of limitations6.

discovery rule: cause of action not acrue until injured party discovers/should have discovered facts of action.In order to be eligible: 1. Must use Due diligence

Tacking: adding of time of first possessor used property to the time 2nd possessor used property through giftor selling interest. Privity must occur for tacking to occcur.

General: an adverse possessor who acts with respect to property as would an owner of similar property inthe community for the period of limitations usually satisfies each element.

Problems:

In 1995, Adam enters and begins adversely possessing blackacre, located in state with 20 year statute. In2005, Adam deeds blackacre to Xeno a bona fide purchaser. What estate does Xeno obtain?

Xeno acquires all right, title, estate, that Adam had plus Xeno can tack Adam's ten years.

In 1985 , Odie true owner ousted from Blackacre by Arthur who in 1990 is ousted by Betty, who in 1995is ousted by Cory, who in 2000 is ousted by Dan. Who has title in 2011?

a.

None were in privity. Odie still owns Blackacre.If, in 2002 Cury had sued Dan in ejectment to regain possession, what result?b.Cory, Prior possessor has right to possession superior to later adverse possessor.Ossie is disseised by Addy in 1980. Addy is in possession until 2005. In that year, Ossie sells to Ben andBen then used Addy in ejectment. In this suit, what result and why?

c.

Judgment for Addy by Adverse Possession. Ossie had no rights to transfer to Ben. Ben cannot acquiremore than his vendor had to give.Same facts as in d except Ossie sells to Ben in 1995, and Ben sues in 1995. What result?d.Ben prevails, He acquired all of Ossie's right as legal owner.Same facts, as in e except Ben waits until 2005 to bring his ejectment action. What result?e.

Addy wins, Ben waited too long to sue.

Assume 20 years statutes

EstatesEscheat: if property owner dies without will and no heirs it escheats to the state.People's interest in land is based estate to which they hold title

Freehold estatesHave seisinCan be inheritedConsidered real property

Words of Purchase/LimitationTo Jane and her heirs"To Jane" Purchase"and her heirs" identifies estate being conveyed

Fee Simple Absolute "whole bundle of sticks"

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InheritableTransferableNot subject to conditions

Life EstateDuration limited to someone's lifetimeFewest rights

Rules:States remove requirement of "and his heirs"All grantors interests conveyed unless deed specifies otherwise

Heirs at LawPerson who takes property under relevant intestate statuteCannot change and have no choice of heirsHeirs determined at death

Parties in willDevisee- real property legatee- personal propertyIntestate- dying without will, testate- dying with valid willIf will makes no provision who gets property after plaintiff dies, reversion in grantor.

Modern IntestateIntestate, incomplete will, or reference to one's heirsReal property within state

Per Stirpes- to representative (per branch)Per capita- counting total #

Problems Intestate

Freehold Estates

Life Estate "To Jane for life" "To Jane for her lifetime" "To Jane while she lives"Jane life estate, Grantor reversion in fee simple absolute

To John for George's LifeJohn has life estate Pur autre vieGrantor has reversion in fee simple absolute

If George dies before John, grantor's reversion becomes possessory.

Estate treated as John's personal property-If John dies before George

Life Tenant DutyLife tenant owes quasi-fiduciary duty - obligation to put other parties interest above life tenants.Quasi - tenant can still use land and profit from it.

WasteVoluntary- commissive (intentional)Involuntary- permissive (fails to exercise reasonable care)

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Meliorating- waste in attempting to improve property

TermsProbate- process which property distributedTestator/Testatrix- executor of will

Fee EstateCan last forever potentially

Defeasible Estates - that which can be undone or made voidConcept of waste does not apply with defeasible estates

Fee Simple Determinable - estate for limited purposes automatically terminateJane and her heirs so long as but upon breach automatically reverting back to grantorUntil, during, while, unless

Grantor owns possibility reverter

Fee Simple Subject to Condition Subsequent

Estate with limited purpose that can be terminated by the grantor if purpose is violated

John and his heirs upon the condition that but upon breach grantor may reenter estate.Provided that, but if, on condition that, provided, however.

Grantor has power of termination.Expires when statute of limitations is upReasonable period of time after condition breachedCumulative requirements

Legal Differences

Adverse possession determinable begins when condition happensFor a condition subsequent does not begin until power of termination exercised

Determining what Grantor WantedIntent of grantor as expressed in deedIf deed is unclear court will choose estate least likely to lead to forfeitureDeterminable less likelySubject condition subsequentRestrictive covenant- most likely

Precatory Language: statement of request that lacks legal effect

"To John and his heirs so long as land is used as school, but if not to Jane and her heirs

John holds- fee simple subject to executory interestJane holds- executory interest

Fee Tail

To Jane and Heirs of Her Body

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Executory limitations interests created by deedExecutory divises created by will

Future interest in 3rd party that divests or cuts short a prior estateFollows defeasible feesFee simple that may divest in favor of 3rd party is called fee simple subject to an executory limitation

Same language as determinable except divests to 3rd party, not grantor

Vested RemaindersOwned by ascertained persons and is not subject to condition precedentAll present interests are vested

Contingent RemaindersOne or more persons in unascertained or possession of property is subject to condition precedent(contingency)Cannot be seized to pay debtQuitclaim deed cannot convey contingent remainderSpecial rules apply

Ascertained PersonsName of person

UnascertainedUnborn personsHeirsA's widow

No condition PrecedentEven that must occur before an interest becomes vested.

Example: O conveys to Blackacre to A for life, then, if B survives A, to B and her heirs.

Condition subsequentDeterminable, condition subsequent, executory limitationThe holder can be divested if a condition develops.Example: O conveys to Blackacre to A for life, then to B and his heirs, but if B does not survive A, then to Cand his heirs.

Interpreting GrantsRead in order writtenComma and semi colonsOrder in which grant is written can change type of interest created

Alternative Contingent RemaindersIf grantor makes no provision, grantor retains reversionGrantor may provide that another take if contingency fails creating an alternative contingent remainder

Executory InterestsSpringing: divests or cuts short grantors fee simpleO transfers Blackacre to B to take effect if and when B agrees to farm Blackacre.

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Shifting : fee simple determinable/ condition subsequent called fee simple subject to executory limitationwhen 3rd party takes the interest.

O transfers to Blackacre to A as long as Blackacre is used for farming, then reverts to O.

Vested RemaindersNo condition precedentHolders are ascertained

Indefeasibly vested remainder: A for life, remainder to be and her heirsCertain to become possessoryInterest cant be divestedNot worry about class giftsO conveys to A for life , then to B and her heirs

Vested Remainder subject to DivestmentDeterminative condition is condition precedent or condition subsequentO conveys to blackacre to A for life , then to B and her heirs, but if B does not attain age 21, to C and hisheirs. Divesting occurs after clause granting B her interests.

Vested Remainder subject to Open"my son Albert, for life, then to Albert's children." Remainder to Albert's children is a class gift since it is agroup of persons identified by description rather names.

Class ClosingClass closes naturally when no one else can be born into that classClass Closing Rule of Convenience: class closes whenever any member of class can demand possession ordistribution. Class does not necessarily close when person

Doctrine of Destructibility : Contingent remainder destroyed if it has not vested at or before termination of

all preceding life estates and term of years.

Only to contingent remainders1.Does not apply to equitable interests (trusts)2.Does not destroy executory interests3.

Rule can be avoided by structuring as grant of a term of years rather than life estate.Rule not factor in majority of states.

Example: To john for Life, then to jane and her heirs if Jane passes the barApplies: if john dies before Jane passes bar contingent remainder destroyedNot Apply: If Jane ever passes the bar remainder becomes possessory.If Jane dies then condition failed absolutely.

Merger RuleVested life estate and next succeeding vested estate owned by same person the two estates are merged intoone.Used anytime someone has reversionary interest and a possessory estate.Two vested estates must be acquired at different times.Reversion becomes possessory because contingent not satisfiedConveys reversion to party with possessory estate

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Doctrine minority Rule

Examples: O conveys Redacre to A for life, then to B for life, then to C. A obtains C's vested interest.No merger because B's future interest is vested not contingent.

O conveys Greenacre to A for life, then to B for life if she attains age 21, then to A.No merge because 3 estates created in same document

Rule in Shelly's Case

Freehold estate given to first transferee1.Remainder limited to heirs of first transferee in same instrument2.Freehold and remainder of same quality (both legal and equitable)3.Intervening estates are disregarded

A for life, remainder to A's heirs.Rule abolished in majority of states

ExamplesTo Jane for life, then to John for life, then to the heirs of John and their heirs.InvokesFuture interest in freehold is freehold estate

Doctrine of Worthier TitleTo grantee for life, then to Grantor's heirs and their heirs.

InterpretingRule of Law: cannot transfer remainder interest to his or her heirsRule of Construction: can do so if provided intent

IntervivosRule of Construction: intervivos conveyance to person with remainder or executory interest to grantor's ownheirs or kin no future interest is created in grantor's heirs, rather grantor retains reversion.

To avoid specifically name person.

Testamentary BranchNo longer applies to wills and most jurisdictions have abolished

Rule Against Perpetuities: No interest is good unless it must vest, if at all, not later than twenty one yearsafter some life in being at the creation of interest.

Concurrent Ownership

Tenants in common - created by defaultShare in rents and sales proceeds according to respective property interestInterest in common is assignable (transferable), devisable, and inheritable. Transferees become tenants incommon with remaining tenants in common.Co-Tenant can mortgage interest in property

Joint Tenancy with Right of SurvivorshipLast surviving joint tenant owns the property outright and may sell or devise the property

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Four Fold Unities: if broken joint tenancy severed becomes tenancy in commonUnity of Interest- tenant must own an equal shareUnity of Title- Each tenant must have received an interest in same conveyanceUnity of Time- each tenants interest must have vested at same timeUnity of Possession- each tenant must be seized of the entire estate

Absolute Rule no longer the law either for creating or destroying joint tenancies in many states.

Unity of Title still required in some statesTwo or more persons inheriting same property become tenants in common.

Creation: Joint tenants- created by clear expression of intent to create a survivorship right. "A and B as jointtenants, with right of survivorship in a grant."

Right to survivorshipCotenant automatically vested in share of cotenant who diesBoth joint tenancies and entirety have survivorship rights

Severance: severance turns a joint tenancy into a tenancy in common between severed interest andremaining joint tenants.

ExamplesO, the holder of fee simple absolute in Blackacre, conveys "to A,B, and C, as joint tenants with right of survivorship." Five years later C conveys to D. The deed to D is a severance of D's interest in joint tenancy.A and B continue in joint tenancy with each other, but are tenancy in common with D.

Severance important in joint tenancy with right of survivorship; keeps one joint tenant from passing interestto someone younger.

Most common voluntary severance occurs when one joint tenant unilaterally transfers her interest toanother person.

MortgagesVast majority are lien theory states. Title remains with debtorLesson: lenders should have all joint tenants sign mortgage.

MortgagesMajority-Title TheoryMortgage is a lien (security device; not conveyance of land)Foreclosure legal title conveyed at that timeMortgage is paid off then lien is extinguished

Minority RuleMortgage is Conveyance of an EstateFee holder maintains equity of redemption.Foreclosure then equity of redemption extinguishedWhen mortgage is reconveyed from bank to fee holder

Severance of TenancyConveyanceKilling or attempting to kill cotenant

Joint Tenant unilaterally can sever joint tenancy by transferring her interest to third party

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Tenancy by the EntiretyLimited to husband and wife who own property as unit, not by equal sharesDivorce terminates tenancy.Neither spouse can seek judicial partitionCreation: Grant to husband and wife is presumed to create a tenancy by the entirety"H and W, husband and wife, as tenants by the entirety."

Majority of states creditor can foreclose on tenancy by entirety only if both spouses liable for debt.

Tenants by the entirety- conveyance to husband and wife identified as suchTenancy by Entirety- also be married

Tenants by entirety can be joint tenantsJoint Tenants can be joint tenantsTenants in common cannot be joint tenants

Characteristics of Tenancy by entiretyCreditors of one spouse can only attach survivorship right. Only value if debtor survives his spouseIf one spouse destroys property without permission courts regard as severing tenancyHistorically real property but some jurisdictions allow personal

Relationship of CotenantsIf Cotenant pays more than proportional share of debt then he or she is entitled to contribution from othercotenants.Rule used for any expense that is common to entire estateFiduciary Duty does not apply to charges against cotenants share rather than entire estate

ExamplesHouse is held by two tenants in common, John and Jane, but is occupied by a renter, SusanSusan pays rent money to John; is John free to keep the money? No, Jane is entitled to 1/2 net rent after

expenses are deducted.

A house is held by two tenants in common, John and JaneJohn occupies the house. What is Jane entitled to?Nothing, cotenant not obligated to pay other cotenants rent for occupying the premises as all cotenants haveco-equal right to possession.

Relationship Between Co TenantsIf co tenant pays more than proportionate amount he or she is entitled to contribution by other co tenantsAny expense common to entire estateFiduciary duty

LimitsDoes not apply to charges against co tenants share rather than against entire estate(tenants in common: Jane mortgages 1/2 interest, defaults on mortgage, buys 1/2 undivided interest atforeclosure sale)

If tenants in common rent out 1/2 net rent after all expenses

But not obligated to pay each other rent

Accounting

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If cotenants owe each other obligations action of accounting broughtAccounting action often coupled with partition action

Surrendering Right of PartitionIntent to surrender right must be clearly stated in writingRight of partition can only be surrendered for a reasonable period of time

Adverse Possession of Co tenants Share

Must ouster cotenant and prevent from entering possession of estateMany jurisdictions require notification of cotenant of ouster

Marital PropertyMostly abolishedDower 1/3 or 1/2 of life estate in all spouses real property.Spouse cannot defeat by selling or mortgaging property

Needs:Valid MarriageDecree in divorce distinguishes dower claimSole and beneficial seisin in deceased spouseApplies to (determinable, subject condition subsequent, or executory limitation, legal estates)

CondominiumsReal estateSole interest in unit and tenancy in common in common elementsBoard of directors only control purchasers by exercising right of first refusal, and only mod to commonelements.

CooperativeIntangible property cannot mortgageShares of stock in corporation

Proprietary lease to occupy unitBoard of directors holds most power (who buys, all mods, terminate cooperative)Time SharesEither condo or cooperativeOwners rights limited to specific period of timeVacation propertyFinancial disaster for unit owners

Common ElementsAnything in master deedTypical common elements: parking lots, side walks, roof, foundations, swimming pools

Absolute restraints on alienation are void but reasonable are enforced (limited period time, justified reason)

Landlord Tenant LawNon Free Hold Estate

Set period of timeChattel real (personal property)Created by property/contract law

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Modern law seeks to protect tenants

Leasehold estate if legal interest that entitles tenant to immediate possession for fixed period or for so longas tenant and landlord desireRight to exclusive possession

Categories

Terms of YearsDefinite term of durationDefinite ending date even if starting date is uncertainTenancy expires automatically without any notice of termination

Periodic TenancySuccessive units of time until either party terminates. Month to month leaseTerminate tenancy by giving advance notice

Tenancy at WillNo fixed duration and only as long as landlord and tenant desire. Arise from implication if tenancy is notyears or periodic.

Tenancy at SufferanceWrongfully continues possession after right to possession endsOnly right is to await sheriff's eviction and access to critical services

Holdover tenantLandlord either makes tenant in suffernace or periodic tenancy extension not to be over one year or overoriginal contract.

Creation of Tenancy

The LeaseStatute of Frauds: anything more than one year requires writing agreeing on definite space, time, and agreedrental amount

Selection of TenantsFair Housing Act 1968: no discrimination against people on race, color, religion, sex, family status, nationalorigin, handicap.Must be protected class and discriminated because of the above

Tenants Duty to Pay RentSome states enact rent control ordinances: limit amount of rent landlord may chargeDefined by leaseRent obligation in commercial is complex

Landlord's Duty to Deliver PossessionEnglish (Residential Majority) : actual possession (tenant can actually possess) of leased premisesAmerican (Commercial Majority): legal possession (right to sue holdover) of leased premises

Covenant of Quiet EnjoymentFree from adverse conduct by landlord and claims of title.Adverse conduct of third parties not covered

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Only applies to initial possession

Duty of Continued OperationFactorsImplied in commercial sector if % of sales and no substantial min rent is dueNon Compete Clauses

Limitations on Use of Premise

Language must be mandatory and exclusive"used for purposes of bookstore" is only permissive

If tenant misrepresents intentions and purpose then landlord can void lease

Conditions of Leased Premises

Constructive Eviction: wrongful conduct of landlord substantially interferes with use and enjoyment of lease.If repairs landlord must repair in reasonable time after notice.Tenant cannot repair premises and must move out to complete constructive eviction"most courts now allow partial constructive eviction: moving out of part of lease.

Independence of Covenant DoctrineTenant responsible for all repairs; buyer beware majority rule for commercial leases.Obligation to repair is separate from contract of lease therefore tenant cannot withhold rent.Trend is towards abolishing rule but still minority

After Independence of Covenants AbolishedSome states allow commercial tenant to apportion rent but only significant breachOther states allow apportion rent for any breach of covenant in leaseOthers allow commercial tenant for any breach of covenant or implied warranty of suitability.

Implied Warranty of Habitability

Landlord to maintain residential premises to at least level specified in the local building, safety and healthcodesMost jurisdictions recognize implied warrantyApplies to commercial tenancies

RemediesTenant entitled to damages equal to amount needed to fix the defective condition and that amount.

Implied Warranty of SuitabilityCommercial tenanciesGrowing majority of jurisdictions acceptCan be waived by tenant unlike habitability

Landlord Liability Personal InjuriesRequire residential landlord to exercise reasonable care to prevent injuries

Fixtures : personal property affixed to realty; attached physically and permanently if objects removal wouldsubstantially damage. "Screw in test"

Trade Fixture: tenant can remove if for purpose of trade and would not materially damageTraditionally if lease renewed and specific reservation of tenants rights not made, title of trade fixturestransfers to landlord.

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Slight majority of states have abolished rule.

Warranty of SuitabilityCommercial and can be waived

Transfers of Leases

Privity of Contract and Estate

Privity of Contract: legal relationship existing between both parties.Privity Estate: mutual immediate interest in leased premise. Permits landlord to collect rent.

Assignment and Sublease

Assignment is the transfer of entire remaining termSublease is transfer of only part of remaining term

Traditional Rule : transferring lease for even one day less than remaining time of lease results in subleaserather than assignment. Irrespective to intent.New York Rule : sublease if grantors leaves any reversionary interest (i.g. right to terminate)Contractual Rule : Intent of Parties

AssignmentCreates triangle relationship. Privity of contract with original lessee but privity of estate with both lessee andassignee.

Rights and DutiesAssignor liable for original lessor for all covenants in original lease.

Sublease

New landlord tenant relationship created.

Rights and DutiesNo obligation of lessee to original lessor.Lessor still in Privity of contract and estate with original lessee, not new lessor and therefore cannot collectrent.

Original Tenant liable for all payments to landlord under term of contract.

Tenants Right to Assign or sublease

Dumpors RuleIf landlord has right to approve assignment or sublease once landlord does so all future assignments andsubleases can be done without consent.Only overcome if lease is clear that right to approval applies to first lease and all thereafter.

Reasonable ConsentMajority: Landlord does not have to be reasonable in granting consentMinority Rule: States trending towards reasonableness

Transfer by the Landlord

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If landlord conveys interest all they is conveyed is only reversion. Vested future interest

Termination of Tenancy

Eviction Actions

Landlord cannot engage in self help and must use court processNotice of eviction and if tenant does not leave by date or conditions formal suit.

Expedited and limited Summary Actions

ResultJudgment of possession followed by an execution involving sheriff.

Tenant must have made prior complaint regarding housing code violation1.At least partial result of complaint landlord seeks eviction2.Defense is never barred

Retaliatory Eviction Defense

Conduct that Triggers DefenseRestrictive states limit defense to tenants who complain to government agency onlyIntermediate states allow defense because of any housing related action takenLiberal states allow assertion of any statutory or constitutional right

Abandonment of LeaseholdTraditional RuleLandlord can leave premises vacant and hold tenant responsible for all rentIf landlord goes back into possession reversionary interest and possessory estate merge and nonfreehold isextinguished.Landlord can take lease as agent of tenant but owe fiduciary duty.

Modern RuleLandlord must mitigate damages

Landlord must go back into possession of premises when tenant abandonsMust attempt to relet premises to lessen the defaulting tenants damagesLandlord entitled to stipulated rent less the rent landlord received or should have received in mitigation

Security DepositsStates penalize landlord for failure to return security depositsDeposit to be held in escrow so landlord cannot touchLaws clarify whether deposit can be used to pay last months rent

Easements, Restrictive Covenants, and Equitable Servitudes

Easement : interest in land possessed by another allowing limited use or enjoyment of landEasement is a property rightRights

Protected from interference by others1.Not subject to will of title holder2.Interest not right extended to all non-possessors3.Not riparian rights, or rights regulated ad hoc.Interest can be created by conveyance4.

Easement Vocab

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Affirmative easement: allows holder to do things on others landNegative easement: allows holder to prevent land possessor from doing certain thingsAppurtenant: benefits and burdens neighboring estates.Rule of construction favors appurtenant.Easement in gross: does not benefit neighboring estate; instead individual benefitsNot favored by courtsSome states only allow utility companies, railroads to hold in gross.

Dominant Estate : one that benefits from appurtenant easementServient Estate : estate burdenedProfit: right of non-title holder to enter land and remove certain items

Courts will favor appurtenant easements over easements in grossSpecific language will be given more importance than general language

LicenseContract right now property interestSubject to will of the land title holderUsually not enforced in equity

Irrevocable LicenseMost jurisdictions do not recognize irrevocable license since falls too close to easementIf plaintiff knew of money or investment and was benefitting from, estopped from exercising terminationrights.

Creation of EasementsExpressly in a deed- Primary Rule grantor's intentBy necessity for accessBy implication through land usePrescriptively through adverse Use

Some states also recognize customary rights- easement like rights to public.

Easements by Necessity

Original Unity of ownership between to parcels1.Strict Necessity; No other means exist for access to public road except over other parcel2.

UN(ie)

Will exist for reasonable necessity or convenience.

Exist by necessity inchoate (unexercised until needed)

Easement by ImplicationUVPN (acronym: unity, prior use, visible apparent, reasonably necessary)(i.g. reference to map, how land used before created)

Common ownership of dominant and servient followed by conveyance of one or other.1.Before severance use of dominant estate of land inside servient estate2.Use was Apparent obvious, continuous, and permanent3.Claimed easement necessary and beneficial to dominant estate4.

Preventing: prevent easement by including language in deed to that effect

Easements by Prescription

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Use of claimed easement, openly, adversely, continuously, uninterrupted, and under claim of right for period of more than given in statute of limitations.ElementsOpenly- use must be apparent and visible; not secretive (landowner notice/ should notice use)-Adversely- use must be against title of fee holder- also beyond scope of useContinuously- use must be constant- as to a reasonable easement holder's use.Uninterruptedly- use must be continuous and regularUnder claim of right- intentional trespassers may be excluded

Not necessary for exclusive possession

Lack of Consent Critical: someone using another's land permissively then license existsCannot develop under license unless:License revoked by licensorLicense repudiated by licensee

Minority of states require Acquiescence or passive assent or submission. Consent by silence.Servient estate holder must actually constructively know of adverse use and not object.

Customary RightsElementsLong and general use of servient estateNo interruptionWithout disputeReasonable use of landLimited to particular area of landConsent of title holder was never requiredNo other laws violated by use

Minority view of courts.

Littoral Rights (Ocean front estates)Majority Rule: owner has estate title up to mean high tide lineMinority Rule (MA): owner to mean low tide line.

Limitations on Use of EasementEasement only be used by appurtenant dominant estateCannot benefit non dominant estate even if owned by same person.Character of use of easement cannot change from what was grantedIf use creates unreasonable burden on servient estate

Divisibility of EasementAllows transfer from current dominant owner(s) to greater number of dominant ownersUnreasonable increase in use of easement is surcharge .Courts require new owners to use easement collectively rather than individuallyDivisibility Summary: 1. dominant owner 2. same use. 3. reasonable divisibility.

Implementing wording that created easement 2. If there are gaps use Rule of Reasonableness todetermine balance between dominant and servient estates. Both interests are viewed for Rule

1.Interpreting an Easement

Moving an EasementTraditional Rule: cannot be moved

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Trend Rule (MA rule): allows servient to move if not going to harm dominant estate

Use of easement evaluated contemporary standards

Termination of EasementExpress: dominant estate holder conveys a release to servient estate holderMerger: dominant estate holder acquires both titlesAbandonment: dominant estate stops using easement with objective intent to abandon

Prescription

Real Covenants and Equitable Servitudes

Touch and concern the land1.Be entered with the intent that the promise will run with the land2.Be entered and enforced by parties with the appropriate privity.3.

Real Covenant must run with the land

Traditional ViewIf covenantors estate is rendered less valuable because of promise burden runs with the land

If covenantees estate is rendered more valuable because of the promise, benefit runs with the land.

RestatementRequires promise be of benefit to use or enjoyment of land

Intent to RunParties must have intended promise to run with the land(Express Intent: run with land)

PrivityMutual Privity (English Rule)Original parties had continuing interest in same land

Horizontal Privity (Minority American)Original parties were grantor and grantee on a deed contained promise

Vertical Privity (Majority American)Enforcement parties are successors in interest to original contracting parties- no specific relationship neededbetween original contracting parties.

Majority of jurisdictions discharge grantor from benefit or burden of real covenant upon conveyance.

Equitable Servitude

Broadly fills in gaps of covenantsWhen promise cannot be enforced as real covenant because of insufficient privity it will be enforced asequitable servitude

Equitable Servitude in GrossMany jurisdictions will not enforce an equitable servitude unless it has both the promisor's burden and thepromisee's benefit run with the land.

Other jurisdictions do not enforce.

Implied Reciprocal Negative Easement

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Allow enforcement of restrictive covenant that is not included in deed

Invoke theory: common owner of restricted and unrestricted lotPurchased with actual or constructive knowledge of restriction

Effects of Common SchemeIf lots are developed in a common development each lot considered dominant and servient on any restrictivecovenants or equitable servitudes established.

Constitutional and Public Policy Limitations

Cannot violate constitution, statutory law, and some states extend to public policy.

Construction of Real Covenants

Some states view as contract and thus interpret intent.Others disfavor and narrowly construe

Amendment Rights

Reasonably and in good faith and does not act arbitrarily or capriciouslya.If Developer keeps rights to amend covenant will not run with the land

Real covenants that can be amended will run provided there is a mechanism for exercise of rights

Termination of Restrictive CovenantsExpress termination - some designed to expire or covevantees can release voluntarilyWaiver - fails to enforce covenant. (narrow waiver application)

Abandonment - not enforced with objective intent to never enforce again.Changing Use - use changed to such extent that enforcement no longer justified.Must be inside of development not outside.Limits on Changing UseDoes not termination just unenforceable in equity

Does not allow rewrite of restrictive covenant by courtsOnly applies to real covenants, equitable servitudes, but not easements.

Fee Title Land

Support of Land

Lateral Support : adjacent land that is separated by a vertical plane.Subjacent Support : support of land separated by horizontal plane. (i.g. removing coal from below)

Liability for Removing Support : owner liable for collapse if land would have collapsed in its natural state.Strictly liableMajority Rule: strictly liable for all damagesMinority Rule: only strictly liable for damages to the landDoes not apply to significantly changed land, landslides, pumping water.

Negligent LiabilityIf no strict liability then negligence can be foundIf land would not have collapsed in its natural state negligence must be shown.

Two TestsUnnecessary excavation : balance between value excavation v steps taken to protect supported land.

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Risk of Harm : balance between risk of collapse v cost of prevention

Water RightsLaw of water rights depends where water located(Drainage; precipitation, watercourse; fresh water, aquifer; groundwater, littoral; ocean)

Water in streams, rivers, and lakesBalances: 1. rights or earlier and later users 2. actual use 3. upstream/downstream rights

Eastern US: riparian rights. Presumes abundance of water and regulates reasonable use.Western US: priority of appropriation. Presumes shortage of water and regulates on when use began.

Riparian TheoriesNatural flow- entitled to water provided natural flow of watercourse. (places with abundance water source)

Reasonable Use- each owner right from others unreasonable use of water which would cause harm to ownreasonable use of water. (majority view)

Riparian Rights (Restatement 2nd): Factors; waters use, effects, economic and social value, etc)Weakness of Riparian Rights System: hindsight and difficulty of allowance of water use.

Must be contiguous to water1.Must be in watershed (area of land drains into particular body of water)2.

Riparian Requisites

DiversionReasonable use test: diversion of water improper unless there is not present or future injury to downstreamriparian holder.Natural watercourse test: any diversion is improper

Aquifers and Groundwater Use

Common Law- make use regardless of consequencesRestatement- extract for reasonable and beneficial useReasonable Use Test- not balancing and as long as water being used for something reasonable.

Trends and CritiqueInterrelationship between various locations where water can be found.

Air Rights "Space above surface of the land"

General Rule: free to use airspace however titleholder sees fit.Anyone else has use must avoid titleholders use

Airspace RightsLandowner owns at least as much of space above ground as he can occupy or use in connection with land.Airplane privileged to fly above min altitude of flight (1,000 above ground or any fixture)

Property Outline Fall Final

Documents

Transcript of Property Outline Fall Final