Property - Outline Manual

8/8/2019 Property - Outline Manual

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PROPERTY Outline Manual 3.0 OSTROW 2010

I. Possession

A. Acquisition by Capture

1. Rule of Capturea. Majority Certain Control

i. Physical control by capturer, not pursuitii. Includes wild animals and fugitive resources (no diagonal drilling b/c trespass)iii. Pierson v. Post (majority opinion)

b. Minority Reasonable Prospecti. Harder to administer, but more fairii. Pierson v. Post (dissent)

N.B. Beware of the Trick: All may be correct at one time,don't just pick the ultimate possessor!

2 .Exceptions to Rule of Capturea. Custom

i. Killer of Whale Ghen v. Rich

b. Malicious Interferencei. Of businesses is actionable Keeble v. Hickeringillc. Constructive Possession (Ratione Soli)

i. Owner of soil constructively possesses things on itii. Landowners are regarded as prior possessors of animalsferae naturae until they run away

d. Habit of Return (Animus Revertendi)i. Run-away animals are still the landownersii. A wild-animal like a chinchilla that wont return, you are on notice because it is non-nativeiii. Must have evidence of domestication to a point of natural return

e. Occupancyi. (1) Demonstrates an intent to appropriate animal for individual use (2) deprive animal of liberty (3)certain control

3. Alternative Modes of Acquisitiona. Labor

i. Locke Law of Accession p.14a. How to divide up value of 2+ contributors of labor and resources

ii. Demsetz Private property increases overall wealth more than the communal systema. Communal systems have externalities; costs that affect more than accountable for such asoverworking the land which is borne to the entire community

b. Transaction costs would be high to negotiate how to police the agreementc. Private systems internalize all the externalities as a private property owner

B. Acquisition by Creation

1. Property in Ideasa. Value of Labor

i. INS v. AP News is quasi-property: no one owns the news but copying is unfair businesscompetition between competitors. Court is concerned with incentivizing news collection.

a. Baird on INS v. AP Everyone can use information without damaging the use of another. APwould still make money even if INS copied it

ii. Cheney Bros. v. Doris Silk Patterns are not property. Court is concerned with allowing innovationand imitation to improve old designs at better prices.

a. Versus INS Cheney limits INS holding to News. If INS was a general rule, it would applyhere.

iii. Smith v. Chanel Imitation breeds competition and lowered prices for society


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iv. Nichols v. Universal Movie is copyrightable but not the plotline.v. Diamond v. Chakrabarty Bacteria patentable because it is a product of human ingenuity andmanufacture even though it is organic.vi. White v. Samsung Parodies and appropriations of Whites identity are patentablevii. MGM v. Grokster Inducement Rule: one who distributes a device with the object of promoting itsuse to infringe copyright, as shown by clear affirmative steps, is liable for resulting acts of infringementby 3d Parties

2. Property in Ones Person1. Moore v. Regents of UC Moore does not have a property interest in his cells and cannot sue for conversion(wrongful exercise of ownership rights over the personal property of another). Majority is afraid a property rightwill allow sale of organs and tissue

a.Dissent Property right can be given to owners of cells but limit the bundle of rights (alienability)

3. Right to Exclude1. Jacque v. Steenberg Homes Permissible to limit people off your land. $1 nominal, $100k punitive2. State v. Shack Landowners do not have the right to bar government services. Right of access for governmentworkers to visit migrant workers.

a. Versus Jacque Relative rights different: private company vs. govt service

II. Subsequent Possession

A. Acquisition by Find

1. Types1. Lost Property

i. Finder has better rights than anyone but the true owner or a prior possessor, even on private propertyArmory v. Delamirie

x. Hypo Sweep finds ring. Sweep drops ring that Bob finds. Sweep Sues Bob. Sweep wins: firstin time

2. Mislaid Propertyi. Put it somewhere but intend to go back and get it. Property owner, not finder, has right if original owner

intentionally placed it there3. Abandoned Property Lose and no intent to go back for it. Finder has more rights than subsequent finder

2. Statute of Limitationsi. Begins to run when true owners or reasonably should know possessors identity

B. Acquisition by Adverse Possession

1. Adverse Possession1. Elements of AP

1. Actual

i. Ordinary use of similar property (Howard Summer use)

ii. Possession does not require the occupier be physically present on the property2. Exclusive

i. Not concurrent usage with true owner or publicii. Co-Tenants

a. Look for actions indicating ouster. If theres no ouster or other affirmative action, Acant take Bs share by AP (Ouster Evidence that A told B to stay off).

3. Continuous

i. Statutory period. Interruptions ok if consistent with the appropriate use of the property4. Open & Notorious

i. Average use. If the owner checked, he would see ita. Not O & N Entrance underground (Marengo), Minor Encroachments (Manillo)


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C. Acquisition by Gift

A. Elements1. Delivery

A. Physical Delivery

i. Required wherever possible; required for gifts donatio causa mortisa. In causa mortis gifts revocable if you recover

ii. Constructive delivery of furniture valid but the insurance policy could have been handed over

physically Newman v. BostB. Constructive Deliveryi. Sufficient for Inter Vivos gift even if donor retains possession until he dies. The Father can keepa life estate, and the Son can get a Remainder. The nature of the painting does not requirephysical delivery (taking it off, putting it back on) Gruen v. Gruen

a. In Gruen, father held a life estate, and there was evidence of symbolic deliveryc. Symbolic Delivery

2. Intent

3. Acceptance

B. Engagement Rings

i. NY Rule Look at faultii. Majority Rings are a conditional gift

III. Possessory Estates

Possessory Estates

1. Fee Simple Absolute

i. Creation to A, to A and his heirs

2. Life Estate

i. Creation to A for life, to A for the life of B (pur autre vie)ii. Future Interest

a. Reversion Future Interest in Grantor O to A for lifeb. Remainder Future Interest in Transferee O to A for life, then to B

Defeasible Estates

1. Fee Simple Determinable (FSD)

i. Creation Durational words so long as, while, during, untilii. Condition Always subject to conditioniii. Future Interest

a. PoR Possibility of Reverter in Grantor O to A so long as A is married to B

2. Fee Simple Subject o Condition Subsequent (FSSCS)

i. Creation Conditional words but if, provided thatii. Condition Always subject to conditioniii. Future Interest

a. RoR Right of Re-entry in Grantor O to A, but if A uses land for tavern, then to O

3. Fee Simple Subject to Executory Limitation (FSSEL)

i. Creation Conditional or Durational words but if, so long asii. Condition Always subject to conditioniii. Future Interest

a. EI Executory Interest in Ascertained Transferee (cuts off) O to Hof, but if land not used forlibrary during next 10 years, to NYU

b. O to A if A passes the bar. A has not taken the bar. O has a FSSEL.


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IV. Future Interests

Future Interest in Transferror

1. Reversioni. General Lesser interest that may or may not become possessory

a. Certain O to A for lifeb. Not Certain O to A for life, then to B if B survives A

2. Possibility of Reverteri. Follows FSD

3. Right of Re-Entryi. Follows FSSCS

Future Interest in Transferree

1. Remainder Capable of becoming possessory at the natural termination of a prior possessory estate. This is a patientfuture interest. If it cuts off, it is an Executory interest.

a. Vested Remainder (a) Ascertained Person & (b) No Conditioni. Indefeasibly Vested Remainder

i. Certain To Be Possessory - Cant be divested O to A for life, then to Bii. Vested Remainder Subject to Open or Partial Divestment

i. Certain To Be Possessory in 1 class member; may be dilutedii. All or Nothing Rule If condition is not satisfied for one class member, entire class gift is void

iii. Vested Remainder Subject to Total Divestmenti. Certain To Be Possessory Unless Condition Occurs that Divests

b. Contingent Remainder (a) Unascertained Person OR (b) Made Contingent through a Conditioni. Condition Met Vests

a. All other interests evaporateii. ConditionNeverMet If no Alternative

Contingent Remainder, Reversion to OIf. A dies before chance to meet thecondition

a. Modern Rule O holdsRemainder in trust untilCondition Met; Springs if Metb. Common Law Reversion

x. Hypo (CR can overrride VRSTO if no kids alive + condition) O to M for life, then to M's childrenand their heirs, but if M dies without children surviving her, then to S and her heirs. At the time of theconveyance, Mary has no children. What FI are created by this grant?

i. M's children have CR. Susan has CR. O has reversion

ii. NOT M's children have VRSTO and subject to complete divestment; Susan has an executoryinterest

c. Alternative Contingent Remainder

2. Executory Interesta. Shifting

i. Divests 3d Party O to A, but if A doesnt graduate, to Bb. Springing

i. Divests Grantor O to A when she marries


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Rule Against Perpituities

1. Common Law Rulei. No interest is good unless it must vest, if at all, not later than 21 years after some life in being at the creation ofthe interest.

i. Paraphrased An interest is invalid unless it can be said, with absolute certainty, that it will either vestor fail to vest before the end of a period equal to (1) a life in existence (and specified in the documentcreating the interest) at the time the interest is created plus (2) an additional 21 years.

ii. Lives In Beingi. Measuring life are persons actually mentioned in the conveyanceiii. Class Gift

i. Entire gift fails unless each member must have his interest vest or fail within lives in being plus 21iv. Modern Rule

i. Wait & See If the interest actually vests within lives in being at the time of creation plus 21 years, theinterest is valid.

2. RAP Steps O to A until New York falls into the sea, then to B1. Identify Interest

- PE: A has FSSEL, FI: B has ShEI2. Identify Condition

-NY must fall into the sea3. Identify Lives in Being- A / B

4. Whether this condition will certainly be satisfied within 21 years of the death of the life in being?-No. We do not know if NY will fall into the sea.

5. Strike Offending Clause- O to A until New York falls into the sea, then to B

6. Identify Interest- PE: A has FSD, FI: O has Possibility of Reverter

x. Hypo O to Hofstra, but if it ever ceases to be used for law school purposes, then to Ostrow.What does Hofstra have?

i. Hofstra has Fee Simple Absolute. Last part is striked.

3. Applicabilitya. Appliesi. Contingent Remainders, Executory Interests, Vested Remainder Subject to Open

b. Does Not Apply

i. Indefeasibly Vested Remainder, Vested Remainder Subject to Divestment, Any Future Interest inGrantor (reversion, right to re-entry, possibility of reverter)

V. Co-Ownership & Marital Interests

A. Concurrent Ownership

1. Tenancy in Commoni. Creation to A and Bii. Possession Both have equal right to possess the wholeiii. Ownership Percentage need not be equaliv. Transferability Alienable, devisable, descendible

a. Can freely alienate inter vivosv. Creditors Reachable by creditors alive and deadvi. Future Interest Modern Rule TiC presumed


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2. Joint Tenancyi. Creation to A and B as joint tenants with rights of survivorshipii. 4 Unities

1. Time Same Time2. Title Same Title/Deed3. Interest Equal Shares in Type and Duration4. Possession Both have equal right to possess the whole

iii. Transferability Alienable (but not devisable or descendible)iv. Creditors Reachable by creditors when alive (but not dead)v. Severance Joint Tenancy may be unilaterally terminated without straw-man Riddle v. Harmonvi. Ending a Joint Tenancy Lease, divorce, murder, contract

a. Joint Tenancy Conveyances

i. Joint Tenancy Life Estate Contingent Remainders until the survivor is ascertainedii. Joint tenant can unilaterally sever his or her share inter vivos.iii. When A conveys, As 1/3 is severed from JT, but 4 unities still exist with B and C.iv. Sale Can sell interest to 3d Party without consent. His share becomes a tenancy in common. If 3parties, 2 joint tenants, 1 common

x. Hypo A, B, C are joint tenants. A conveys his interest to B. Is the JT destroyed?i. Yes, but only as to the one-third interest A conveyed to B. Thus, B owns an undivided1/3 interest in Blackacre as a Tenant in Common with B and C as a unit. The other 2/3 isowned as a Joint Tenancy between B and C in which each has an undivided interest.

a. N.B. When something happens to destroy either a joint tenancy or a tenancy bythe entirety, the tenancy remaining is the default tenancy: a tenancy in commonb. Had A conveyed his interest to an outsider, Z, Z would hold As 1/3 interest as atenant in common with B and C as one unit, who would be joint tenants as to eachother

x. Hypo W and H want to convey Blackacre to their children, S and D. Their objectiveis to ensure that whichever child lives longer gets the land in fee simple absolute to theextent that the law allows. Which property should they use?

i. Concurrent Life estate with a remainder in the survivor; not a Joint Tenancyx. Hypo Ray, Randall and Rob as Joint Tenants. Ray conveyed his interest to Cyrus. Asa result?

i. Time and Title (not Interest or Possession) are destroyedx. Hypo A, B, and C are joint tenants. B sells to Z

i. A and C hold equal shares of a 2/3 rd interest in the land as joint tenants with each other,and Z holds a 1/3rd interest in the land as a TiC vis--vis the other two

x. Hypo A, B and C are joint tenants. A conveys her interest to D. B dies, with a will leaving allof Bs real estate to S.

i. When A conveyed her interest to D, D became a TiC. B and C continued to be jointtenants. Bs attempt to devise is ineffective and C receives Bs interest, leaving C with anundivided 2/3rd interest and D with an undivided 1/3rd interest as a TiC

3. Tenancy by the Entiretyi. Creation Rebuttable presumption that conveyance to husband & wife created TE

a. Minority Expressly state TEb. Common Law Any conveyance with to married parties is a TE b/c it viewed the couple as one person

ii. Possession 4 Unities and Marriageiii. Transferability Unservable right of survivorship, cannot sever it by sale, no legal partitions [?]iv. Creditors

a. Common Law reachable by creditors of Husband during lifeb. Modern Rule not subject to the claims of creditors of one of the spouses during their joint lives(Sawada v. Endo)


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B. Partitiona.In Sale

i.Forced sale of the land, followed by division of profitsii. Requirements (1) physical attributes make PiK impracticable and inequitable (2) interests of ownersbetter promoted by PiS

b. In Kindi. Dividing the property itself among co-owners

a. Courts favor PiK over PiS. Party requesting PiS has the burden of demonstrating PiS better

promotes interests (Delfino v. Valencis)

C. Marital Interests

1. Division upon Divorcea. Common Law

i. Property belongs to spouse with title since the couple is considered one person. The wife moved underthe mans cover (jure uxoris).

b. Modern Rule

i. Equitable distribution under Married Womens Property Actsc. Community Property

i. Includes earnings during marriage and fruits of earnings

a. Policy Assumption that both husband & wife contribute equally to material success ofmarriageb. Excludes Separate property: (1) Acquired before marriage (2) Acquired by gift or inheritance

ii. Characteristics

i. No right of survivorshipii. Neither can transfer without consentiii. Spouse with title manages as fiduciaryiv. Creditors as managing spouse can reach whatever spouse may manage

d. Domestic Partners

i. ALI adopts Common Law marriage approach. Domestic partners must share a primary residence and alife together as a couple [?]

i. Divorce Divided like marital property

ii. Death Distributed according to intestate statute

2. Benefits and Burdens of Co-ownershipi. Swatrzbaugh v. Sampson -

a. Facts P and her husband own land as joint tenants. Husband leases part of land to D for a boxing ringdespite Ps opposition. P never joined the lease. P sues to cancel lease.

ii. 1966 Defensive Marriage Act Full faith and credit: wherever you get married, other states must recognizebenefits (not for same-sex)

- Remedies

3. Termination of Marriage by Divorce

- In re Marriage of Graham- Elkus v. Elkus

2. Rights of Domestic Partners

- Goodridge v. Dept. of Public Health


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VI. Landlord & Tenant

A. Leasehold Estates

0. General

i. An exclusive right of possession for a specified period of time granted in exchange for payment of rent, subjectto the terms and conditions of the lease.ii. Lease for less than a year can be oral

iii. Abandonment vs. Surrendera. Abandonment Leaving without LL consentb. Surrender Leaving with LL consent

iv. States may create more liberties, but cannot create less than the Constitution allows. Goodridge v. Dept of Pub.0. Characterizing Leaseholds

a. Why does it matter if an agreement is called a lease?i. Termination Rightsii. Assignabilityiii. Mitigation of Damagesiv. Statute of Fraudsv. Contract/Conveyance

- Crechale & Polles v. Smith

Types of Leasehold Estates

1. Term of Yearsi. Duration Known fixed period to T for two years beginning Jan. 1, 2009ii. Termination No additional notice

x. Hypo A lease to B until C comes home from the war. Term of years; even though no fixed end date, Aor B cannot determine when to end it because it is conditioned on the happening of an event.

2. Periodic Tenancyi. Duration Continues for successive periods of fixed duration year-to-year, month-to-month

a. Created by implication a lease with no stated duration creates a periodic tenancyb. Holdovers If the landlord accepts rent, a new periodic tenancy is created

ii. Termination Automatically renwed unless notice given. Lease terminates on last day of perioda. Year-to-year Common Law: 6 months; Modern Rule: Shorterb. Less than year-to-year Equal to period, not to exceed 6 months

i. Defective termination if not on the last day of the periodx. Hypo - Test When L + T first entered, it was a term of years. No notice was necessaryto terminate. Before this ended, they agreed. This is not a holdover: it was an expresscondition. So long as pay rent = Express agreement that gives rise to inference ofperiodic tenancy.

3. Tenancy at Willi. Duration No stated duration as long as both LL and T desireii. Termination Common Law Terminable by either party without notice; Modern Rule Some period ofnotice required; Death Terminates upon death of either party

a. Right of Election Either (1) evict (2) hold him to another termiii. Intent Based Approachiv. Formalistic Approach

- Garner v. Gerrish

4. Tenancy at Sufferance: Holdoversi. When T remains in possession after termination of the leaseii. LL Rights (1) Evict (2) Consent to holdover


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B. Unlawful Discrimination

1. Civil Rights Act of 1866 1982i. All citizens shall have the same right as enjoyed by white citizens to inherit, purchase, lease, sell, hold, andconvey real and personal property

2. Fair Housing Act of 1968 3604i. Refusing to rent or sell due to race, color, religion, sex, familial status, or national origin

ii. Ads that show discriminatory preference 3604(c)a. Come live off campus, close to Churchiii. Unlawful to discriminate because of handicap 3604(f)(1)

a. Mrs. Murphy Exception If you will live with them, you may choose to ask for Only German speakb. Marital status and sexual orientation not protected

3. FHA Exemptions 3603(b)i. A single family dwelling sold or rented by owner, provided owner does not (a) own more than 3 such dwellings(b) use a broker or (c) advertise discriminatory preferenceii. Units within a 4 family home, if the owner actually maintains and occupies one of the unitsiii. Housing for seniors may discriminate against families with children 3607

Single Family Dwelling Blood related, tenants do not engage in activities reminiscent of family life4. Otheri. What are some other examples of permissible and impermissible discrimination based on Family Status andSex?ii. How is handicap defined by FHA? What constitutes discrimination with regard to handicapped persons?

C. Subleases and Assignments

0. Ts Right to Sublet or Assigni. T can transfer interest if (1) explicitly permits (2) permit with consent (3) prohibit (4) is silent

a. Common Law Landlord can withhold consent for any reasonb. Modern Trend Reasonableness, especially commercial ventures (commercially rble) Pestana

ii. LL has a reversion at the end of the lease1. Privity

i. Landlord ----- Tenanta. Privity of K ___ Parties to the leaseb. Privity of Estate ----- Shared interest in land

2. Assignmenti. Must be entire interestii. Partial Assignment Entire interest in a portion of landii. Landlord ___ Tenant 1

. |Assignment. . Tenant 2

a. L + T1 Privity of K

b. T1 + T2 Privity of Kc. L + T2 Privity of Estate

3. Subleasei. Less than remaining interestii. Landlord ----- Tenant 1 ----- Tenant 2

a. L + T1 Privity of K & Privity of Estateb. T1 + T2 Privity of K & Privity of Estatec. L + T2 - Nothing

- Ernst v. Conditti. What is the difference between and assignment and a subleaseii. What two rules of construction can be used to differentiate between the two?


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iii. Traditional rule regarding landlords obligation to give consent where a lease contains an approval clause?a. Minority Rule?

iv. Which rule does the court adopt and why?v. Dual nature of a lease?

Lease 25 yr SubleaseSan Jose -------------------------Perlitches --------------------------- Bixler

| Assignment of Sublease |


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a. Common Law Exceptions Short term leases must be habitable, show latentdefect, no misrepresentation, maintain common areas, promises to repair

i. Cannot constructively evict if the problem is temporary

b. Modern Rulei. (1) Releases obligation to pay rent (2) Action for declaratory judgment (3) Remain in possessionand sue for damages

a. Reste Realty v. Cooper D was constructively evicted when P breached the covenant of

fixing the water which justified T leaving the premises. There was sufficient interferencewith the use and enjoyment of the leased premises to justify departure and relieve herfrom the obligation to pay further rent.

i. Facts Whenever it rained, the building flooded. They fixed it every timebefore, but the crowning blow was when it was not cleaned up and everythingwas soaked. P argued that he was aware of all conditions past and present.However, even though D inspected, she could not possibly have notice it was sodefective. The condition should have and probably was known to the lessor: ifthey did know, they had a duty to disclose to the prospective tenant. Even thoughthey knew during the second lease, they promised to remedy the situationimmediately as an express covenant of quiet enjoyment in the least.

b. Reste Jurisdiction

i.No duty required, thus repeated noise acts as substantialinterference of material enjoyment

c. Non-Reste Jurisdiction

i. Building Code violation in reasonable time3. Condemnation

i. No remedy exists after condemnationii. If government takes it after eminent domain, when LL gets paid, T will be entitled to a sharerepresenting the current value of the unexpired term of the lease, less future rents payable. T will only bepaid if his rent was below the fair rental value of the rest of the lease. He is always entitled to damageslike relocation costs.

a. Partial Condemnation / Blocked Viewi. Full lease remains but he is compensated by the government

B. Implied Warranty of Habitability1. Definition

a. In residential leases, LL is required to deliver and maintain, throughout the period of tenancy, safe andhabitable premises.

2. Breach

a. If LL has notice and fails to correct within reasonable time & premises are uninhabitable in the eyes ofa reasonable personb. WoH and duty to pay are mutually dependant covenants. WoH, unlike Quiet Enjoyment, does notrequire them to abandon to pursue the claim.

x. Hypo No express covenant: Absent such, 3 exist QE, WoH, illegality. No heat, no lights.Not QE because out of his power. T prevails under WoH because it includes 3d party damage.

x. Hypo - LL rents to T. T says bookstore, he actually opens XXX store. He can rescind becausehe misrepresented the intended use.

3. Remedies

1. Remain in possession pay rent and sue for reimbursement and damages2. Remain in possession and withhold rent3. Terminate lease sue for reimbursement and damages4. Repair and deduct

4. Modern Rule

a. Implied Warranty exists in the lease, whether oral or written, that the landlord will deliver over andmaintain premises that are safe, clean and fit for human habitation Hilder v. St. Peter

i. Waiver


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a. T does not waive Implied Warranty even if he knows of defect. Furthermore, theWarranty cannot be waived orally or in writing.

ii. Mechanics

a. T must show she notified the landlord of the defect and allow reasonable time forcorrection. The standard K remedies of rescission, reformation and damages are availableto the tenant when suing for breach of implied warranty of habitability.

iii.Damages for Discomforta. Yes, difficult to calculate. May withhold payment of future rent. Tenant must show (1)LL had notice and failed to rbly repair (2) defect existed during the time rent waswithheld.

i. Punitive damages available if willful and wanton or fraudulent nature.5. Common Law

i. Caveat Lessee

a. T takes possession of the demised premises irrespective of their state of disrepair.b. Ts obligation to pay rent exists independently of the landlords duty to deliver possession. Sothat as long T was in possession, T is liable for rent.c. The landlord was under no duty to render the premises habitable

x. Hypo W rents to P who is using it to sell drugs. She cannot terminate the lease. She

may sue for damages or get an injunction.ii. Exception #1 Constructive Eviction

a. LL wrongfully interferes with the tenants enjoyment of the demised premises

x. Hypo T leases to H in her apartment complex. H converts it into an amputation parlor. Thescreams are deafening. Tenants have an implied duty of rble behavior which includes theobligation to not unduly interfere with othertenants enjoyment. Hs noise also constitutes asconstructive eviction, allowing T to terminate the lease and vacate the premises: while H has notsubstantially interfered with Ts use and enjoyment, nor is there a problem with the common area,LL has a duty to not allow nuisance by other Ts. Ts use is substantially interfered with.

iii.Exception #2 Express Covenanta. LL fails to fulfill duty expressly required in writing to repair. T may abandon and stop paying

rent.

F. Affordable Housingi. Implied warranty of habitability raises the standard of living for all, including the poor. Landlords, not Tenantsare generally in the best position to maintain the property. But does it help them if landlords will simply pass thecosts on to the tenants?ii. Chicago Board of Realtors v. City of Chicago

a. May have the opposite effect: it will reduce the resources that landlords devote which makes housingmore costlyb. The ordinance Is in the interest of people who buy rather than rent. More affluent tenants who willbecome more attractice to LL because they are less likely to be late on rent.c. Losers: Landlords, out of state banks, poor tenants, and future tenants.

VII. Title Assurance

A. The Recording System

0. General

i. Purpose Facilitate certainty in title and land transfersii. Relativity of Title

a. Absent recording statute first in time = first in right

b. With recording statute O A (A does not record deed) O B (B records deed)i. Between O and A, A prevails


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ii. Between A and B, B prevailsiii. Requirements

a. Description of property, name of grantor and grantee, signature of grantor, notarization, transfer taxb. Any instrument that creates or effects an interest in land can be recorded (deed, mortgage, lien, will,lease)

iv. Bona Fide Purchaser

a. Subsequent purchases who, in good faith and without prior notice of an earlier transfer (actual, recordor inquiry) spends valuable consideration purchasing an interest in real property (not grossly inadequate)

i. Shelter Rule [?]

1. Types of Recording Acts1. Race Statute Subsequent purchaser for value prevails if wins the race to record

x. i.e. OA (nr), O B (r, w/ knowledge of As prior purchase)i. A v. B B prevails because it recorded first

2. Notice Statute Subsequent purchase for value will prevail if he had no notice of a prior unrecordedinstrument

x. i.e. OA (nr), O B (no notice, nr)i. A v. B B prevails because he had no notice

b. Floridas Notice Statute No conveyance shall be good and effectual against creditors or subsequentpurchasers for a valuable consideration and without notice, unless the same be recorded according to thelaw.

3. Race-Notice Statute Subsequent purchaser for value protected if (a) without notice of prior unrecordedinstrument AND (b) wins the race to record

x. i.e. OA (nr), O B (no notice, nr) A (r), B (r)i. A v. B A prevails because A won the race, even though B had no notice

b. Californias Race-Notice Statute Every conveyance of real property is void as against anysubsequent purchaser in good faith and for valuable consideration whose conveyance is first fulyrecorded.

x. Hypo O to A. A did not record. O died, leaving H as the heir. H, knowing of the earlierconveyance to A, conveyed to B. B, who had no notice of the prior transaction and paid valuableconsideration, promptly recorded her deed. Who has title?

a. Betty has title in Race, Notice and Race-Notice Jurisdiction

x. Hypo OA O B Race (A) Notice (B) Race-Notice (A)

x. Hypo OA O B (r, no notice) Race (B) Notice (B b/c no notice) Race-Notice (Bb/c no notice; rec. first)

x. Hypo OA (r) O B Race (A) Notice (A b/c A recorded, B had recordnotice) Race-Notice (A b/c A won race, B had

notice)

2. Inquiry Noticei. Purchaser presumed to have notice of facts that would be revealed through reasonable investigationii. Reference to unrecorded transaction in a recorded document gives purchaser inquiry notice of facts that wouldhave been revealed through reasonable follow up Harper v. Paradiseiii. Party in possession gives inquiry notice of claim to property Waldorff Insurance

VIII. Law of Servitudes

A. Easementsi. Irrevocable interest that entitles the owner to use or control property owned by another


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ii. Subdividing Both get to use easement unless it overburdens servient land (20 subdivisions)iii. Easements are permanent, even in transfer

a. Exception Easement by necessity, or bought it without notice (BFP) of easement through writing

1.Affirmative Easementi. Right to enter or use another persons land (i.e. As right to use a path)

x. Hypo Golf course

2. Negative Easement

i. Right to restrict anothers use of his own land (i.e. As right to prevent B from building astructure that blocks sunlight)

a. English LAWS Light; Air; Water from artificial stream; Supportb. American CVS (additional) Conservation; View; Solar

1. Types of Easements1. Appurtanent Benefits owner in the use of his own land.

a. 2 Parcelsi. Dominant Estate Land benefitted by the easementii. Servient Estate Land burdened by the easement

b. Assignableif (1) intent (2) burdened party has notice of easementc. Division If the dominant estate is subdivided, each resulting parcel has right to use easement onservient estate so long as they do not overburden servient estate

2. In Gross Benefits owner personallya. Involves only the Servient Estateb. Assignability Non-Assignable unless commercial easement in grossc. Division Permitted if (1) Authorized by creating instrument (2) Exclusive or (3) Used as One stock

2. Creation of Easements1. Express Grant

i. Writing signed by Grantor in a deedii. Reservations Allow easement but retain some usage

2. Estoppel

i. Created where A allows B to use As land under circumstances which A rbly foresees B willsubstantially change position reling on A not revoking permission

x. Hypo Only As lot has access to road. A knows B wants to build a house, tells B if he builds ahouse, he may use As path. B builds. A is deemed to have given B a permanent easement.

ii. License Oral or written permission given by occupant allowing licensee to do some act that wouldotherwise be trespass. Not governed by Statute of Frauds.

a. When license is coupled with an interest (i.e. a profit a prendre when O grants A right to taketimber from Blackacre)

iii. Licenses Becoming Irrevocable = Easement Treated as an easementa. When licensee changes its position in rble reliance on statements or silence of the licensor

- Holbrook v. Taylor3. Implication

i. Prior Usea. Requirements

1. Common Grantor (common owner)2. Existing use of one parcel to benefit another3. Apparent use (inquiry notice)4. Reasonably Necessary to dominant lands use and enjoyment

b. Note Greater necessity required for implied reservation than for implied grant [?]- Van Sandt v. Royster

ii. Necessity (Landlocked setting)a. Requirements

1. Unity of Ownership (common owner)


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2. Strictly necessary, not mere convenience3. Necessity existed at time of severance of the two estates

b. Terminationi. Terminates upon termination of necessity

- Othen v. Rosier

4. Prescription

a. Requirements

1. Actual, O & N, Continuous, Hostile

2. Exclusive? (Othen) If the public can use it too, it isnt an easementb. Restatement

i. Servitude is not acquired through prescription if owner does not effectively interrupt use priorto the end of the statutory period

Miller v. Lutheran Conferencea. If an assignee decides to assign his rights further, he must assign his whole interest toone, two, ore more. If there are two or more, they could make no division of it, but worktogether with one stock.b. Rephrased The right of a grantee may be assigned, but if to more than one person, thetwo parties must work together.

3. Terminationi. Abandonment Unambiguous intent to abandon and conduct manifesting the intent for continuous non-useii. By terms of grantiii. When purpose of easement endsiv. Merger Buy serviant land and already own dominant landv. Forfeiture for misuse vi. Release Transfer part or allBuyoutvii. Out of Scope of use Puking on the path!viii. Condemnationix. Destructionx. Recording Acts

a. N.B. Mere non-use is not stopping without proof of evidence of inconsistent use

4. Conveyance of Easement Hyposx. Hypo A and B are neighbors. A new street is built adjoining Bs property, and A can only get to this street bycrossing Bs property. A crosses Bs property at a particular spot for several years, then sells to C. C has noimplied easement because there was never any conveyance between A and B, required for the creation of animplied easement [?]

x. Hypo O owns two houses side by side on one parcel. To give the garage behind house #1, he builds adriveway which runs between the two houses. O conveys House #2, including part of the land and the driveway,to A. An implied easement in favor of House #1, and against the land on which House #2 is located, will bereserved with respect to the driveway. Also, if O conveys House #1, an implied easement in favor of that housewill be created against the land of House #2. This is because (1) O was the owner of both tenements before theeasement came into being (2) Use existed prior to the severance (3) The easement is necessary to the enjoyment of

House #1s garage.

Review of Easements

A. Determine whether an easement has been CREATED:1. Grant

2. Estoppel (Holbrook)

Irrevocable if licensee expends money or constructs improvements in reasonable reliance on statement of licensor

3. Implication from Prior Use (Van Sandt)

Common Grantor

Prior Use

Apparent (provide inquiry notice)


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Reasonable Necessity

4. Implication from Necessity (Othen)

Common Grantor

Strict Necessity (not mere convenience)

Necessity existed at time of severance

Terminates upon termination of necessity

1. Prescription (Othen, Miller)

Actual Use (no negative easement)

Open and Notorious (provide inquiry notice)

Continuous for statutory period (same as AP) Defeated only if owner effectively interrupts use (Restatment)

Adverse/Hostile/Claim of Right = without consent

Exclusivity = Owners use may defeat adversity (Othen)

B. CLASSIFY the claimed or established easement:

Affirmative orNegative

Appurtenant orIn Gross

C. Determine whether the easement can be TRANSFERRED:

Appurtanent =

Assigned automatically unless BFP;

Divided automatically unless overburden servient estate

In gross =

Assignment permitted unless BFP;

Division permitted if (a) not contrary to intent and (b) not unreasonably burden servient estate or one stock ruleD. Determine whether the easement has TERMINATED

Abandonment = more than non-use, physical act and intent to abandon (Presualt)

E. Determine whether the easement exceeds original SCOPE?

Scope may be adjusted ifchange is consistent with the terms of the original grant (reasonably foreseeable) (Presault)

- Preseault v. United Statesi. Do this!

a. What is taking?b. When can the scope of the easement be adjusted?c. What constitutes abandonment of an easement?

B. Covenants Running with the Land

1. Real Covenantsi. Definition

a. A promise regarding land that runs to successive owners of the promisor's landb. Covenant enforceable at law = money damages

ii. Types

1. Restrictivea. A promise to refrain from doing something to the land i.e. not make a gas station

2. Affirmativea. A promise to do something related to the land i.e. maintain a fence

iii. Requirements

1. Writing2. Intent to Bind Successors3. Touch and Concern4. Privity

a. Horizontal Privity Required for Burdeni. Shared interest in land other than the covenant i.e. mortgagor/mortgagee;landlord/tenant; grantor/grantee

x. Hypo A owns Lot 1 and B owns Lot 2. A strip of land lies on both Lots. A andB both want to use the strip as a driveway. They exchange covenants, under whicheach agrees to keep the driveway unbuilt-upon, and to pay half the costs of


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keeping it paved and cleared of snow. A sells Lot 1 to C, and B sells Lot 2 to D.Can C sue D for breaching the Covenant?

a. Common Law No. At the time of the covenant, A and B did not havehorizontal privity. They were strangers to the title so neither the burdennor the benefit run after sale.b. Modern (Restatement) Horizontal privity not needed. C can sue D.

b. Vertical Privity Required for Benefit & Burdeni. Successor to promisor's interest in land

a. Burden Identical estateb. Benefit Identical or Lesser estate

iv. Scope

i. 'Single Family Residence - Hill v. Community of Damien, Shelley v. Kramerii. Public trail is beyond scope of original purpose; they took easement for railroad, not a fee simple to doall kinds of things! Presault

v. Termination

i. Expiration, release, abandonment, merger, estoppel, prescription, condemnation, recording, consent,changed conditions

vi. Modification

a. Noi. Covenant will not be modified even if the value of the restricted parcel is reduced, if (1)Original purpose has not been thwarted and (2) covenant remains of substantial value to otherhomeowners. Western Landii. Holdouts Restrictive covenants will be enforced by injunction unless unconscionable oroppressive Rick v. West

b. Yes

i. A change makes it impossible as a practical matter to accomplish the original purpose of thecovenant. Compensation for harm may be awarded.

vii. Pet Restrictions

a. Original Use Restrictionsi. Valid unless arbitrary, burdens substantially outweigh benefits for all parties, or violate public

policy Nahrstadtb. Later Adopted Use Restrictions

i. Reasonableness Nahrstadtii. Business Judgment Rule

a. Considers whether board exercised its discretion in good faith, upon r'ble investigation(NY)

iv. Burden & Benefit

a. Burden

i.Requirements

1. Writing2. Intent3. Touch and Concern Must affect the value of the land by dminishing or limiting the

promisor's use of it4. Vertical Privity (identical estate)5. Horizontal Privity

b. Benefit

i. Requirements

1. Writing2. Intent3. Touch and Concern4. Vertical Privity (identical or lesser estate)

x. Hypo O promises to pay fees to maintain neighborhood poola. Burden Promise to pay attached to O's land


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b. Benefit Right to use pool attached to O's land

BurdenA B

Benefit & Burden | | Benefit & Burden| |X Y

a. Common Law Neponsit Promise must benefit/burden the land, not the parties individuallyi. Restrictive Covenants Always Touch and Concernii. Affirmative Covenants Covenant to pay money to be used in connection withmaintaining land Touches and Concerns

b. Restatement (Third) A servitude is valid unless it is illegal, unconstitutional, or violates publicpolicy. Servitudes that violate public policy include:

i. Arbitrary, capricious or spitefulii. Un'rbly burdens a fundamental constitutional rightiii. Un'rbly restrains trade or alienationiv. Unconscionable

c. Homeowner's Association

i. Even though the obligation is to pay money, it is considered to T+C

2. Equitable Servitudesi. Definition

a.

b. Covenant enforceable at equity = injunctive reliefii. Requirements

1. Writing (Unless implied from general plan)a. Courts will imply an equitable servitude from a general plan when...

2. Intent3. Touch and Concern

a. Common Law Neponsit Promise must benefit/burden the landand not the partiesindividually

i. Restrictive Covenants Always Touch and Concernii. Affirmative Covenants Covenant to pay money to be used in connection withmaintaining land Touches and Concerns

b. Restatement (Third) A servitude is valid unless it is illegal, unconstitutional, or violatespublic policy. Servitudes that violate public policy include:

i. Arbitrary, capricious or spitefulii. Un'rbly burdens a fundamental constitutional rightiii. Un'rbly restrains trade or alienationiv. Unconscionable

4.Noticea. Actualb. Record

c. Inquiryiii. Reciprocal Negative Easement Implied equitable servitude

i. A large tract of land is subdivided into lots: even if the subsequent property owner whose deed does notcontain a restriction and a prior grantee who wishes to bind him to restrictions found in his own deed. Aslong as the court can findi. Creation -

N.B. The burden must T+C the land in order to run: the benefit need not always T+C.


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N.B. Subdivisions When a developer record a subdivision plan, this (1) indicates benefit and burden of restrictions isintended to run with the land. (2) It gives constructive notice to subsequent takes so notice is satisfied. Deed restrictionmay be more restrictive than zoning laws.

N.B. Termination due to changes ES may be terminated if changes in the neighborhood make it no longer substantiallypossible to secure the benefits which the restrictions were intended to create: this argument, however, usually fails sincethere is usually some benefit

Tulk v. Moxhay

T E (Covenant Not to Build)|M (Actual Knowledge)

Sanborn v. McLeani. Facts Developer had a plot of residential land. All had the written restriction of nothing but residences shallbe erected on said premises except for Lot 86, which had no restrictions.

Neponsit v. Emigranti. Under traditional law of servitudes, would the homeowner's association have standing to sue to enforce the

covenant?

RC Burden RC Benefit ES Restatement 3d

1. Writing 1. Writing 1. Writing

(unless implied from plan)

1. Writing, implication, general plan, estoppel, prescription, necessity

2. Intent 2. Intent 2. Intent 2. Intent

3. Touch &

Concern

3. Touch &

Concern

3. Touch &

Concern

3. Valid unless illegal, unconstitutional or against public policy

4. Vertical Privity

(identical estate)

4. Vertical Privity 4. Notice 4. Restrictive covenant runs with land (negative easement).

5. Horizontal

Privity

5. Notice

IX. Zoning

A. Controls on Household Composition

i. Government regulation to protect health, safety and welfare of publicii. Commission creates zoning ordinancesiii. Variance If a zoning ordinance is too harsh

b. Eminent Domain


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i. Requirements

1. Public Use

a. Imposed by Taking Clause of the Fifth Amendment; it must only be loosely related to a publicuse. May be related to urban renewal project

2. Just Compensation

a. Government must pay fair market value for the highest and best used. If the vacant parcel iszoned for subdivision, it must be paid that value and not for rental value

Village of Euclid

I. What is Euclidian Zoning?ii. Why did the District Court strike down the zoning ordinance?Iii. Why did SCOTUS uphold it?

NIMBY

i. Diminished Ocean views vs. 25% electrical needs

- Village of Belle Terre v. Boraas- City of Edmonds v. Oxford House

Property - Outline Manual

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