Property Outline MEGAN

8/8/2019 Property Outline MEGAN

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Section 1: Acquisition by Capture

1. Actual Possession: the usual method of acquiring a property right in a wild animal is to actually possessit-dead or alive.

A. Pierson v. Post: Post chased a fox on common un-owned land and before he had a chance to woundit or capture it, Pierson intervened, killing and taking the fox, even though he knew Post was after

it.

i. Holding: Post did not own the fox until he had physical possession of it, pursuit was notenough.

ii. Rule: Possession requires: 1) unequivocal intention of appropriating animal to his individualuse, 2) depriving wild animal of natural liberties and 3) bring him within his certain control.

Must render escape impossible.

iii. Reasoning: A rule of actual possession would promote certainty and peace, and wouldencourage people to kill foxes (which were pests)

iv. Dissent: Better to adopt customs of sportsmen.v. Doctrinal debate-should possession depend on actual possession, mortal wounding, or hot

pursuit with reasonable likelihood of capture? Should depend on how best to effectuate a

desired public policy.

B. Ferae Naturae-How does one acquire ownership interest in wild animals? They are ownerless so noone can give it to you. One way is by capture. Another is by if the animal is on their property,ratione soli-"by reason of the soil". This is dictum of Pierson v. Post b/c this case happened on

uninhabited soil. When wild animals are on your soil, you have occupancy of possession.

C. Domesticated Animals: Whether they are capable of following orders and whether they are capableof returning home.

2. Custom: Customary rules maximize the well-being of the group creating the custom, to ensure thatindividuals do not grab benefits for themselves that impose net losses on the group as a whole. People

conform out of self-interest.

A. Ghen v.Rich: In a whaling community, whalers used distinctive lances to catch whales and wouldwait for them to wash up to retrieve them. In this case, the finder sold the carcass to Rich instead of

following custom.i. Holding: Custom determined ownership

ii. Reasoning: the nature of the industry was that animals could only be killed without acquiringimmediate possession. The court accommodates the custom of this industry, just like they

accommodated Pierson who actually killed the fox who was considered a noxious beast.

iii. This case could cite to Pierson's majority and dissent because the capture meets the threepart test and it follows custom.

3. The Importance of Policy Ends to the Nature of Property Rights:A. Keeble v.Hickeringill: P owned a pond attracting fowl, D shot a gun off to scare them away, P sued

D for damages.

i. Holding: A landowner does have a right to attract fowl to his property unimpeded by thedirect influence of another aimed solely at keeping fowl away.

ii. Reasoning: D was maliciously interfering with P's lawful conduct.iii. Distinguished from a fair competition situation, where D set up a competing pond, P would

not have COA.

iv. Public policy favors protection of those who use skill to promote trade-law depends on thepublic policies that it is supposed to serve.

v. Court distinguished this case from Post because the P actually owned the land that the decoypond was on.

4. Oil and Gas and Policy:


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A. Fugitive mineral s are analogous to wild animals with regards to the rule of capture, some courtshave used this rule, some have abandoned it.

B. If there are three properties and there is oil underneath all the properties , it is legal for one of theproperties to put in a derrick and take up all the oil, but not if it is only under ONE property.

Section 2: Adverse Possession:

1. Rationale:A. Slothful owners who ignore people using their land in violation of legal right deserve to be

penalized. Courts do not want to adjudicate stale claims-its difficult. Slothful owner doesn't care

enough to assert his ownership.

B. People who use the land productively for a long time should be rewarded. AP invests time inmaking it productive. AP eventually expects continued possession because he earned it.

C. Stability: AP allows disputes to be resolved over titles quickly by giving title to the person whooccupied the land as if they owned it for a long time.

2. Defined: If the true owner of land fails to start legal proceedings to remove a person who adverselypossesses his land within the SOL, the owner is forever barred from removing AP.

A. Elements: COHENS- continuous, open, hostile, exclusive, notorious for statutory period. Burden ison AP to prove all the elements. Judge made elements, except SOL. If there is not an AP, only say

which element is missing, if there is an AP, say ALL elements that are there to make it an AP.i. Actually enter onto and exclusively possess the land

ii. Open and Notoriousiii. Adverse or hostile to true owner's interest under a claim of rightiv. Continuous for the SOL.

B. Actual and exclusive possession: SOL starts to run at the moment of actual entry. Exclusive meansthat owner has excluded the public and the owner (not that only one AP can occupy).

i. Van Valkenburgh v. Lutz (NY): Statute required APs occupying without color of title (defectivedeed that purports to deliver title to the possessor, but AP does not know its invalid) to prove

that they had "substantially enclosed" or "usually cultivated or improved" the property.Here,

since there was no enclosure, D must show that the land was cultivated or improvedsufficiently to satisfy statute, but what D did was not considered an improvement nor

substantial to qualify.

C. Open and Notorious: AP must be readily visible to any inspector because true owner should be ableto know of the occupation if he visited. This constitutes notice to the owner of AP. It is O&N if it is

the type of occupation a true owner would make.

i. Subsurface minerals: AP takes whatever title the true owner had, so if true owner had title tominerals, then AP would too, but if he didnt, then AP would not either if he just adversely

possessed the surface.

ii. Mistaken Claim of Ownership:1. Mannillo v.Gorski: D's steps encroached on neighbors property 15 inches. O&N element

may not be met if encroachment is a small area and not "clearly and self-evidently" anencroachment.

D. Hostility or Adverse Claim ofRight: is AP has owners permission-no adverse claim of right.i. Majority view: Objective test. State of mind of AP is irrelevant. Courts focus on lack of

permission and whether the occupier's acts and statements objectively appear to be claims of

ownership (acted like a true owner).

ii. Minority view (GA): AP must have a good faith belief that she has title (color of title e.g.)iii. Boundary disputes: (Mannillo v.Gorski) An entry and continuance of possession under the

mistaken belief that the AP has title to the land involved exhibits the hostile possession

required to obtain title by AP.


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1. Majority: Objective test (if actions appear to be those of a true owner-then AP).2. Maine Doctrine (probably no states follow): No AP if occupied under a good faith but

mistaken belief that the land is theirs and would not have occupied if they knew.

Rewards possessor who enters with premeditated hostility.

iv. Color of title: Possessors who enter under a color of title satisfy the adversity element BUTonly a minority of jurisdictions require that the possessor claim title via a written instrument

like a forged deed, a deed from a grantor who did not own the land; etc.

E. Continuous Possession: AP must occupy the property as continually as would a reasonable andaverage true owner of the property. If the AP abandons property with no intention of returning,

then continuity is destroyed. If the AP did return, new SOL would begin.

i. Howard v.Kunto: D occupied summer home under color of title, P wanted to eject him, butSOL had expired. P argued it wasnt continuous, but it was. Ask what is the quantity, quality,

and character of the property to determine continuity. What is the normal use.

1. Intermittent use that is not sufficient to satisfy continuity may be enough to createprescriptive easement instead.

2. This case also deals with tacking and privity. Court extended privity to them becausethere was sufficient connection between estates.

ii. Tacking (always for benefit of AP): Some, but not all, courts will allow an AP to tack the timeshe is in possession onto that of her predecessor in interest's period of AP. To tack, must beprivity of estate between the 2 APs.

1. Privity of estate: voluntary transfer from 1st possessor to 2nd ofeither estate in the landor actual possession of it.

iii. Tacking (owner): automatic on owner's side if owner transfers to someone else.F. Statutory Issues:

i. COA accrues: Owner's COA to recover possession accrues (begins) when there is an adverseentry of the land. SOL begins running.

1. Disabled owner: SOL provide for tolling (suspension) of the clock if the owner is disabledfrom brining an action to recover possession at the time the COA accrues. Owner MUST

be disabled WHEN the AP enters. Tolling is always for benefit of owner.a. Typically includes: insanity or unsound mind, imprisonment, or being a minor.

Depends on statute.

b. Statute usually says that if the owner is disabled at time COA accrues, owner maybring suit for some specified period after the disability ceases, even though normal

SOL has expired.

c. If AP enters and owners are joint tenants with right of survivorship, and one ofthem has a disability, the other one gets the benefit of that disability and SOL dont

run until period after disability of that joint tenant is removed.

d. If AP enters and before SOL, un-disabled owner leaves property to someone who isa minor. NO disability, minor's guardian must bring suit for them.

2. Future Interests: AP does not cut off future claim to possession. When future interestholder becomes entitled to possession, his COA accrues and SOLs runs.

a. If adverse possessor adversely possesses a life estate (basically AP will have a LEpur autra vie), then person who owned life estate dies, person with the remainder

or reversion now owns the land and SOL starts all over again.

ii. Government AP: must determine if statutes allow AP against governmental lands. lot ofgovernments allow AP as long as its not being used for governmental or public purposes.

Public can acquire property by AP.

G. AP by Tenants and Co-owners:


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i. Tenants: not usually capable of AP against LLs. Must be explicit and clear action by tenant todo this.

ii. Co-owners: usually cannot AP against other co-owners, because they have an equal right topossession. If the co-owner really wanted to AP, then must oust the other co-owner by

excluding the co-owner from possession and claiming sole ownership.

H. AP of Personal Property: Title to personal property can be acquired by AP.Different SOL applies(often shorter). AP is not well suited for personal property because it is hard to meet the open and

notorious requirement, but this is satisfied by possessor using it the way an average owner would.

i. O'Keeffe v. Snyder: Painting was stolen from P, D eventually owned it and claimed previousowner acquired title by AP. Was D's display of picture in home enough to be open and

notorious? Court said AP does not apply and used the discovery rule which puts burden on

the P to exercise due diligence to report it. Even if AP is concealing the item during the

statutory period, still need due diligence. Person has to have knowledge of where item is and

then demand that AP returns it, once they refuse to return it then SOL begins.

I. Title Acquired by AP:i. Adverse possessor only owns the interest that the old owner had. A new title is created, no

transferring occurs. If old owner had a FSA subject to mortgage lien, then AP would have FSA

subject to mortgage lien.

ii. Quiet Title: No written record of AP so AP must bring suit against former owner to quiet titleand this can be recorded.

Section 3: Freehold Estates

1. Fee Simple: 2 types: Fee Simple Absolute and Defeasible fees.A. Fee Simple Absolute: Duration is perpetual, can last forever.

i. Creation:1. Common law:

a. "to A and his heirs"-"to A"=words of purchase, "and his heirs"=words of limitation.Does not mean A's heirs have an interest in the estate.

2.

Modern view: Not necessary to use words of limitation "and his heirs" to create a FSA.Usually, grantor conveys entire estate unless the grant is to the contrary. "to A" would

be FSA.

ii. Alienability: FSA is freely alienable, devisable by will, or inheritable in intestacy. If an intestatedecedent has no heirs, property will escheat to the state.

2. Fee Tail: largely abolished by statute.A. Attempt to create a fee tail will result in:

i. Fee tail that can be ended by simple conveyance- fee tail is permitted but is destroyed by adisentailing conveyance (ordinary conveyance ofFSA). This is an exception to the rule that a

grantor cannot convey more than he owns. People can use a straw man here to create a FSA

and destroy FT.

ii. FSA-majority of modern US jurisdictions use this.iii. FS subject to executory limitation- Attempt to create a fee tail will create a FS in the first taker

under the grant, but if the purported fee tail contains a remainder the purported remainder

will be given effect if and only if the first take dies without surviving issue, which creates a FS

subject to EL.

iv. LE followed by a remainder in the issue of life tenant-FL is this one.FT persists for onegeneration, then is converted to FSA. The first holder of the purported fee tail has a LE and a

contingent remainder is recognized in the issue (lineal descendants) of the life tenant

(contingency is: issue must be alive at life tenant's death). If no issue, then reversion in the

grantor becomes possessory.


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v. FS conditional-South Carolina and a couple other states- do not recognize Statute de Doniscommon law. An attempted FT creates a FSC, the holder of the FSC has a life estate, but if a

child is born to her, she may convey FSA.

1. Ex. O to A and the heirs of his body- if A doesnt have issue and dies or issue dies beforeA, property goes back to O (in a FSC). This is not a reversion.FS>FT>life estate. Only a

reversion when there is greater estate granting a lesser estate. If there is a FSA and O

grants this to A as a FSC then O has poss of reverter. A has the ability to convey a FSA to

their issue. Must make the conveyance in order to create the FSA.

B. FL fee tail statute:i. "No property, real or personal, shall be entailed in this state. Any instrument purporting to

create an estate tail, express or implied, shall be deemed to create an estate for life in the first

taker with remainder per stirpes to the lineal descendants of the first taker in being at the

time of her or his death. If the remainder fails for want of such remainderman, then it shall

vest in any other remaindermen designated in such instrument ("A to B and the heirs of his

body then to G and her heirs" would be the designation), or, if there is no such designation,

then it shall revert to the original donor or to her or his heirs."

1. If A grants to B and the heirs of his body-B has LE followed by FI in FS based on conditionof survivorship, A has reversion. If B has a child, C, then C has contingent remainder,

contingent on being alive when B dies (A would have a reversion subject to completedefeasance). When B dies, C has FSA.

2. Per stirpes means that the FSA is split between the first children, then the next line splitswhatever their parent had, as opposed to per capita where every descendant gets equal

shares. "If any child of the decedent dies before the decedent leaving children who

survive the decedent, such child's share foes to his or her children by right of

representation".

C. Ohio Fee Tail Statute:i. "All estates given in tail, by deed or will, in lands or tenements lying within this state shall be

and remain an absolute estate in fee simple to the issue of the first donee in tail."

1.

If someone grants in fee tail then it stays Ohio Fee Tail for the first taker, if first takerdies or conveys then it becomes FSA to the first taker's issue

2. Called an Ohio Fee Tail-it is alienable. If fee tail reverts in this case then reverts in FS.Statute means there must be issue at the time of the death and could not have

predeceased the first donee in tail.

a. Ex. "A to B and the heirs of his body"-B is the first donee in tail. B has a FT followedby a FI in FS based on condition of survivorship. Closest to a true fee tail.

D. Illinois Fee Tail: If someone grants something in fee tail then it becomes a life estate , remainder inFSA to grantee's heirs of the body (issue).Kind of like #4 above. B has a LE followed by a FI, NO

condition of survivorship (as soon as B has a child, A loses the reversion).

3. Life Estate: Expires upon death of life estate holder. Always followed by some future interest, eitherreversion in grantor or remainder in third party.

A. Pur Autra Vie: Duration of life estate is measured by the life of a person other than estate holder.B. Defeasible Life Estates: same rules apply as defeasible fees. Life estate determinable: "O to A for

life, so long as" O would have a poss of reverter and an IV reversion.

C. Ambiguous Grant: Courts try to follow the grantor's intent.i. Ex: White v. Brown- L granted "to White to live in and not be sold". Construed as a FSA

because no clear evidence to the contrary. "no sale" restriction was invalid attempt to restrain

alienation rather than evidence of a life estate. Usually, disabling restraints are void. Common

presumption that every grant or devise of real estate shall pass the entire interest of the

grantor or testator unless there is clear evidence to the contrary


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D. Modern Life Estate: an equitable life estate is a property interest, owned for life, in the asset of atrust.

i. Judicial Sale: A court is reluctant to order a sale unless it is for equitable necessity (or wasteavoidance) where the sale (or partial sale) is in the best interests of all parties (including

remaindermen).

1. Baker v. Weedon: Life estate tenant and remaindermen couldnt agree on whether tosell. Court held that it would not be in the best interests for everyone to sell the whole

property, so they remanded to allow for partial sale.

E. Waste: Life tenant gets to use LE and derive economic value of possession (rents, etc). This usemust be consistent with the fact that remaindermen will get it someday. Waste means that the life

tenant permanently impairs the property's value or interest of the future interest holders.

i. Ameliorative Waste: Life tenant acts affirmatively to change the principal use of the land andthereby increases the value of the land. Only actionable if: 1) grantor intended for there to be

no change in use, 2) property may still reasonably be used in way grantor intended (if changed

conditions render continued use unreasonable).

ii. Melms v. Pabst Brewing (1899): Reversioner entitled to land substantially in the samecondition, but when there is a complete and total change in surrounding circumstances

depriving the property of value as it was previously used, whether waste has been made is a

question of fact for the jury.4. Defeasible Fees: Any estate may be made defeasible (subject to termination) upon happening of some

future event.

A. Fee Simple Determinable: grants a FS only until a specified future event happens.i. "So long as", "while", "until".

ii. FSA>FSD, so grantor has a possibility of revert1. FSD terminates automatically upon the occurrence of the future event2. Transferability of poss of reverter: most states permit it to be alienated, inherited or

devised. Some states extinguish them if holder attempts to transfer them. In Illinois,

poss of reverter can only be inherited (Mahrenholz).

iii.

Transferability ofFSD: It is a freely transferable estate, but nature stays the same. Transfereetakes the estate subject to the limitation that makes it defeasible.

iv. Accrual of COA for Recovery of Possession: as soon as limiting event occurred, holder of possof reverter has a right to possession, COA accrues at that moment. Therefore, person on

property is an adverse possessor and may still possess the land if holder of poss of reverter

doesnt file suit within SOL.

B. Fee Simple Subject to Condition Subsequent: If a specified future even happens, grantor may actto get the estate back.

i. Creation: language other than that for FSD and a condition subsequent to the grant,"provided", "however", "but if", "on condition that".

ii. FSA>FS subj. to cond. Subs., so grantor has a right of entry/power of termination.1. This does not automatically terminate the grant, grantor MUST actually exercise the

power to terminate. The grantor has this option.Grantor must do more than merely

state his intention to re-enter.Filing suit to recover will suffice.

2. Transferability of right of entry: most states permit it to be alienated, inherited, ordevised, but some states only permit poss of reverter to be transferable, not right of

entry. In Illinois, right of entry can only be inherited (Mahrenholz).

iii. Transferability ofFS sub to cond subs: Same as FSD- freely transferable during life, inheritable,and devisable.

iv. Accrual of COA for Recovery of Possession: COA does not accrue until right of entry isexercised. If the holder of the power of termination waits a long time to exercise it, then some


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states apply doctrines like laches (undue delay in asserting one's rights) to bar assertion of

stale claims.

C. Retained only by Transferor: right of entry and possibility of reverter may only be retained by thetransferor or his heirs, not created in a transferee.

D. Ambiguity Between FSD and FS subj to cond subs: Courts prefer to find FS subject to cond subsbecause it gives the grantor the option to terminate instead of automatic termination which is

harsher.

E. Invalid Restraint or Alienation: General rule is a use restriction becomes an invalid restraint onalienation when the use restriction materially affects marketability adversely.

i. Mountain Brown Lodge v. Toscano: D said P could not sell or transfer property to anyone andcould not use the property in any other way. Court voided the "no sale" restriction but upheld

use restriction because grantor (D) meant to convey a FSD. Case doesnt really get to issue of

marketability.

F. Ambiguity between Defeasible Fee and Covenant: Sometimes there is ambiguity and courts mightinterpret a use restriction as a servitude rather than defeasible fee. Consequence is remedy for

breach.Defeasible fee remedy is forfeiture, servitude remedy is either damages or injunction, not

loss of possession of ownership. Which interpretation is best depends on the grantor's intent and

policies applicable to creation and enforcement of such a use restriction.

G. Fee Simple Subject to Executory Limitation: A fee simple that is divested or shifted from onetransferee to another transferee upon occurrence of some future event.

i. Creation: Like a defeasible fee, but instead of retaining reversionary interests, grantortransfers that interest to a third party. The interest created in the third party is called an

executory interest.

ii. Automatically divests upon occurrence of future event.iii. Difference in use is that "subject to" doesn't use "so long as, while, until" language, only FS

"with" EL.

iv. An executory limitation occurs when the wording suggests either a FSD or FS subject tocondition subsequent, but then transfers to a third party.

Section 4: Future Interests:


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1. Future Interests in a third party (not O or his heirs):y Does the FI follow a valid particular estate (estate for years, life estate, Fee tail-NOT FS)?y Is it polite?y Is there NO necessary gap between A's and B's (third party) estate?

YES to ALL: NO to ANY:

REMAINDER EXECUTORY INTEREST

y Is it an ascertainable, born person?y Is it subject to a condition precedent (other than

natural termination of preceding estate)? Springing: Shifting:

-follows a gap -cuts short

previous estate

NO to BOTH: YES to ANY:

VESTEDREMAINDER CONTINGENT REMAINDER

y Indefeasiblyo Not subject to EI or condition subsequent

y Subject to openo Class is still open at time of grant

y Subject to complete defeasanceo Subject to EI or condition subsequento "But if" signals this, NOT contingent remainder.Future Interests Retained by the Grantor:

A. Reversions: when the grantor conveys a lesser estate than he owned, he retains a reversion.i. FSA>FT>LE>LE pur autra vie>estate for years

ii.

NOT created when the grantor conveys part of his estate to one person and simultaneouslyconveys the rest of his estate to another person .

iii. A person has not conveyed their entire interest when they convey a lesser estate followed bya contingent remainder in FSA.Grantor still has a reversion.

iv. All reversions are vested and therefore not subject to the RAP.v. Types:

1. Indefeasibly vested: when it is known that the grant will revert to grantor's estate atsome point.

a. Ex. O grants FSA (or FT) "to A for life". O has IVR.b. Doctrine of worthier title-if a grantor grants a remainder or executory interest to

the grantor's heirs then the heirs have nothing and grantor retains an indefeasibly

vested reversion.2. Vested subject to complete defeasance: Usually the grantor retains this when a

contingent remainder is conveyed. If the contingent remainder becomes vested, the

reversion of the grantor is destroyed. Contingent remainders always leave a reversion in

the grantor.

B. Possibility ofReverter: FSDC. Right of Entry: FSSCS.

3. Future Interests Created in Grantees:


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A. Remainders: A future interest created in a grantee that will become possessory (if it ever doe) uponthe natural expiration of the preceding estate.Remainders never divest another estate.

Remainders can be in any type of estate.

i. Vested Remainder: Created in a known person and not subject to any condition precedent.They must necessarily become possessory when the prior estate expires. NOT subject to RAP.

1. Indefeasibly Vested: Certain to become and remain possessory.2. Subject to Complete Defeasance: Subject to a condition subsequent that if occurs, will

completely divest the remainderman of his interest. They are freely transferable inter

vivos, devisable, and inheritable.

3. Subject to Open: A remainder is created in a class of grantees, at least one of whompresently exists and is entitled to possession as soon as preceding estate expires. This

class is capable of expansion to include unknown people. A class is closed if no one else

can enter it.

a. Class closes when it is no longer physiologically possible to have new entrants or by"rule of convenience" - if any member of the class is entitled to immediate

possession (it indefeasibly vests in the existing members of the class).

4. *Vested remainder can be both subject to open and subject to complete defeasance.a. Ex: O "to A for life, then to B's children and their heirs, but if C does something,

then to D and his heirs". B's children have a vested remainder subject to open ANDsubject to complete defeasance.

ii. Contingent Remainder: Created in either an unknown person or is subject to a conditionprecedent. A's heirs are not know until A dies.

1. Condition Precedent: for a life estate, that natural termination of the estate is theholder's death so this is NOT a condition precedent.

a. Ex: O to A for life, then upon A's death, to B. -NOT a contingent remainder in B, Bhas an IV remainder.

2. Alternative Contingent Remainders: 2 people in the same grant have a contingentremainder.

a.

Ex: O to A for life, then to B if , but if , then to C. B and C have alternativecontingent remainders.

b. Modern rule in FL: O to A for life, then to A's issue and their heirs, then to G andhis heirs.G has an alternative contingent remainder, because its contingent on A

having issue and A's issue have a contingent remainder too because they are

unknown.

3. Alienability: Most jurisdictions permit alienability of contingent remainders. But, if thecontingency is survival, the interest cannot pass by will or intestacy, or if contingency

results from the fact that the holder is unknown, then it cannot be conveyed by an

unknown person.

4. Destructibility: most jurisdictions say that they are not destructible and that all the workperformed by the destructibility rule can and is performed by RAP. But, in FL-stilldestructible.

iii. Ambiguity: courts prefer vested remainders, rather than contingent.B. Executory Interests: Can only be created in the transferee.

i. Shifting: divests another grantees possessory or future interest, cuts short the precedingestate.

1. Ex: O to A, but if something happens, then to B. B has a shifting EI.ii. Springing: divests another grantors interest at a future time. It "springs" from the grantor.

1. Ex: O to A as soon as something happens. A has a springing EI.


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iii. Ambiguity between EI and contingent remainder: Purefoy v.Rogers-if something looks like anexecutory interest and a contingent remainder then it is a contingent remainder.

4. Special Cases of Present Estates and Future Interests:A. Rule in Shelley's Case: If one instrument creates a freehold in real property (life estate in A) and a

remainder in the freeholders heirs (or heirs of the freeholders body), then the remainder becomes

a remainder in the freeholder. Applies only to remainders, not executory interests. MUST be in the

SAME grant.

i. Ex: To A for life, then to B for life, then to As heirs A=Life estate and indefeasibly vestedremainder in fee simple.

ii. Abolished in almost every state.B. Merger: Occurs if the same person holds the present life estate and the next vested estate, in which

event the two titles would be merged. If a life estate is followed by a contingent remainder, the

next vestedestate is a reversion. This essentially destroys the contingent remainder.Does not apply

to executory interests.

Ex: To A for life, then to As heirs A=FSA.

Ex: O to A for life, then to B for life. Then A QCD to O=NO merger, B still has a vested

remainder in LE.

C. Doctrine of Worthier Title: abolished in a lot of states, but still applies in others (Modern law saysthat you can overcome doctrine of worthier title if it is obviously what the grantor's wishes were).Main reason for it is to further alienability.

i. Rule: If an inter vivos conveyance (MUST be same grant) creates any future interest in theheirs of the grantor the future interest is void. Instead, the grantor retains an indefeasibly

vested reversion.

ii. Applies: both executory interests and remainders regardless of any intervening futureinterests in other people. Not applicable when it says to Os children (and their heirs) or

issue or to people determined later than Os death.

D. Wild's Case: Only applies to wills. Testator to A and her children.i. Modern rule without children: A has a FSA in a majority of US jurisdictions, but in FL: A would

have a life estate and children would have contingent remainder in FS.ii. Modern rule with children: Undivided interests as tenants in common in FSA.E. Rule Against Perpetuities:

i. No interest is good unless it must vest, if at all, within 21 years following a life or lives in beingat the creation of the interest. If an interest is certain to vest or certain not to vest within 21

years, it is good. But if there is any possibility, no matter how unlikely, that vesting could

occur after expiration of the period, then it is void.

ii. Permitted Period of Uncertainty:1. 21 years from its creation2. During the life of some person alive at its creation3. Upon the death of some person alive at its creation4. Within 21 years after the death of some person alive at its creation.

iii. Applies to: contingent remainders, executory interests, and vested remainders subject toopen.

iv. If an interest is wiped out by the RAP-cross it off as if its not there.v. Lives in being: must be alive at time of grant (a testator is not a life in being) and they do not

have to be listed in the grant explicitly, they just must be relevant and can affect the vesting

of the interest in question. Assumes that any person at any age can have a child.

1. Classes of people can be lives in being but the class must be closed at the time of thegrant.

2. Ex: "X now living must do or not do something"-does NOT violate RAP.


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vi. RAP does not apply to charities conveying to other charities.Reason for this is to foster andpreserve charitable giving.

vii. Reason for RAP: eliminate uncertainty about ownership that persists too long.viii. Modern Applications:

1. The UK has applied RAP to poss of reverter and right of entry, but US has not reallyadopted this

2. Wait and See: FL has a wait and see provision to the RAP. "the interest must either vestor terminate within 90 years after its creation". Evaluates interests under RAP as events

unfold, not at the time of creation of the interests, focuses on what acutally happens.

3. Construction of the Instrument: some modern courts will construe an instrument tosave future interests from destruction by the RAP if possible to do so without violating

the grantor's intent.

4. About half the states have either repealed the Rule or made it inapplicable to trusts.Section 5: Leasehold Estates- LL/Tenant:

1. Types of Leaseholds:A. Estate for years: Should be called "estate for a period"- a lease for a single, fixed term of any length.

i. May be defeasible-either determinable or subject to condition subsequent.ii. Doesnt need notice to end because its for a fixed period already.iii. Termination: death of a tenant or LL has no effect on duration of estate for years.

B. Periodic tenancy: Should be called "period to period tenancy"- for a recurring period of time, suchas month to month, or year to year. Continues until either LL or tenant gives advance notice to the

other.

i. Created by: the parties intentions or operation of law.ii. Notice:

1. For a period 6 months or less: if either party wants to end the lease, for any periodictenancy of less than a year, they must give notice of termination equal to the length of

the period.

2.For 1 year or greater: At least 6 months notice is required.3. Between 6 months and 1 year: Book says 6 months, Wolf says length of the period-bothare correct.

4. Mistake of Notice Date:a. Majority: If a tenant has a month to month lease starting on the first, it is March

3rd, and he tells LL that he is leaving April 3rd, then it doesnt matter that he gave

the wrong date, tenant can still leave on the proper date which is April 30th

because LL is entitled to a full period after receiving notice.

b. Minority Rule: If the T does not give the proper date for the termination of thelease-this is not effective notice, and the lease goes on. (Statutes modernize this

area of law).

iii. Termination: death of a tenant or landlord has no effect on duration of a periodic tenancy.C. Tenancy at will: Should be called "tenancy at wills"- a leasehold for no fixed period of time, lasts as

long as both parties desire. Either party may terminate it t any time (bilateral termination).

i. Creation:1. By Agreement-uncommon due to lack of security of tenure2. By Operation of Law- usually if some other leasehold fails.

ii. Bilateral vs. Unilateral: If only one person has the right to terminate the lease-it CANNOT be atenancy at will, it would be a determinable tenancy. IF a tenancy at wills has been created,

and the lease only says that one party can terminate, then it is necessarily at the will of the

other as well.


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1. Ex: O leases a barn to A "for so long as A desires". This lease is both determinable andfor an uncertain duration.

a. At modern law, this creates a determinable leasehold in life estate for A. (Garnerv.Gerrish). More attention is paid to intentions and expectations of the parties.

b. Older view: tenancy at wills was created.iii. Termination:

1. By the parties: Can be terminated by either party. Advance notice was not required atcommon law, the tenant could either give notice or abandon the property, the LL has to

give notice. Some states require some notice, some states required only LL to give

notice.

2. By operation of law: If either party dies, if the tenant attempts to assign his tenancy, or ifthe LL conveys his interest in the property. Most states require notice to be given under

these circumstances, so the tenancy may continue if both parties desire.

D. Tenancy at Sufferance: "after-tenancy" cause something that happens after the tenancy is actuallyover, cause it arises after the termination of a legal tenancy (holdover). Benefits: prevents adverse

possession by tenant.

2. General: The lease is a contract, if any tenant or LL wants something to happen put it in the lease.A. Covenants in Leases: To make an independent lease covenant (such as the tenant's obligation to

pay rent) dependent on another independent covenant (such as the LL's obligation to supply heatand air conditioning): PUT in IN the LEASE.

B. The Lease/Contract: Lease is a special kind of contract because a breach of one party does not allowthe other party to breach.

i. It matters whether or not a lease has been created because this amounts to a LL/tenantrelationship which carries certain rights and liabilities.

ii. A lease is both a conveyance AND a contract.iii. Statute ofFrauds: most US states require leases for more than a year to be in writing.

3. Sublease/Assignment:A. Assignment: The transfer of the party's entire interest under the lease. Must be entire interest,

otherwise, it is a sublease.i. Privity and Liability: The assignee is in privity of estate with the LL, meaning that they areliable to each other for performance of the lease obligations that "run" with the leasehold

(meaning that it carries over with from one estate holder to the next).

1. The assignee is in privity of estate with the other original party.2. LL can recover rent from an assignee or tenant. The tenant is not released from the K.LL

is free to sue either or both. The tenant can recover from the assignee any money paid

to the LL for default by the assignee. LL and tenant have privity of K, while LL and ST

have privity of estate.

ii. Reversion: an assignment of the LL's reversion also places the assignee and tenant in privity ofestate. LL's may freely assign reversions (unless lease prohibits).

iii. Prohibition of Assignment: Most leases either prohibit the tenant from assignment or requirethe LL to consent.

iv. Duration: the assignment takes over the lease for the rest of the period.v. Difference between sublease: If the tenant transfers his lease for the rest of his period, but

reserves the right of entry, this is an assignment, not a sublease, because a right of entry is

not a true reversion. If the tenant transfer lease for period except for the last two weeks, then

it is a sublease, because tenant retains a reversion.

B. Sublease: Whenever the tenant transfers anything less than his entire estate in the leasehold,thereby retaining a reversion.


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i. Tenant may freely sublease: unless it is prohibited in the lease, which most leases do prohibitit or LL must consent.

ii. Privity of Estate: A sub tenant has neither privity of estate or privity of contract with the LL.The tenant remains in privity of estate/K with the LL. The ST and tenant are in privity of

K/estate with respect to their sublease K.

iii. Default: If the tenant defaults on the lease with the LL, the LL can terminate the lease andtherefore the ST has no more right of possession. ST is not liable to the LL (LL cannot recover

rent from a ST-UNLESS they have a separate K).

C. DeterminingDifference between Sublease/Assignment:i. Courts use 2 methods to determine:

1. The substance of the transaction to determine if the tenant has transferred entireinterest in leasehold

a. Right of re-entry: Not enough to be a reversion, the tenant could say this to retakepossession if ST defaulted.

2. Examining intentions of the parties.a. Ernst v. Conditt: Just because the agreement says "sublease" does not make it so.

The intentions of the parties control, also the tenant conveyed entire interest to

the ST, which is characteristic of assignment.

3. Usually:a. If transfer is for an increased rent=subleaseb. If transfer is for a lump sum=assignmentc. If transferee expressly assumes lease obligations=assignment

D. Lease Provisions Restricting Transfer:i. Rule in Dumpor's Case: If the LL gives consent for one transfer (sublease or assignment) and

the lease restricted tenant's right to alienate, then the LL does not have to consent for

subsequent transfers.

1. Rationale: Because of the underlying principle of free alienation.2. Applies when tenant transfers twice.3.

America rejects this rule everywhere and requires tenant to get LL's consent again.4. Can get around rule by just putting in the lease that tenant must get consent every timehe wants to transfer.

ii. Limits on LL power to deny consent:1. Common law permitted LLs to deny consent for any reason, or no reason at all.2. Modern law: anti-discrimination laws and sometimes require LL to have an implied

obligation to act reasonably when denying consent to a transfer.**Commercial Leases

only**.

a. Ex: Kendall v. Ernest Pestana(CA): Held that in a commercial lease, a LL maywithhold consent to a transfer only when the LL has a commercially reasonable

objection to the transfer.Followed the minority rule (below).

b. Majority rule: Where the lease contains an approval clause, the LL can deny anyproposed assignee. This rule is under attack.

c. Minority rule: there is a steady change to this rule which is: where a lease providesfor assignment only with the prior consent of the lessor, such consent may be

withheld only where the lessor has a commercially reasonable objection to the

assignment, even in the absence of a provision in the lease stating that consent to

assignment will not be unreasonably withheld.

4. History of the lease:A. Late 19th century: Courts were overwhelmed by LL-T disputes. Immigrants came to the US and

lived as tenants. The courts set up summary conviction proceedings. If the T refused to pay rent LL


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could go to court, show the lease to the court, if the T did not show up, T could be removed. If T

shows up, they just ask if T paid rent, if no, then T could be removed, doesnt matter what the LL

did. The T could get a lawyer and sue the LL in the regular court system which was clogged.

Summary proceedings gave a tremendous advantage to the LL.

B. Revolution: First significant change of LL's rights was constructive eviction. Constructive means "itsas if" eviction really occurred.

i. Constructive eviction:1. An early case on constructive eviction- Dyett v. Pendleton- apartment next door where

prostitution was taking place and T heard moans-considered constructive eviction.

2. Other cases m ay involve floods caused by LL, wars, rats3. Means that the T could leave the premises if things get so bad and not have to pay rent.4. Reste Realty Corp.V. Cooper- Although LL did not cause flood, the premises was not

usable to the T.

ii. Instead of a buyer beware attitude, courts started to change there view about impliedwarranty of habitability.

iii. The revolution in LL-T law- District of Columbia-US Court of Appeals (jurisdiction has changedsince).

1. Severe housing shortage at the time, tenants paying inflated rents.2. Courts now want to hear the T's reasons why they refuse to pay rent. If T has nowhere

else to go, they do not want to constructively evict, they want LL to fix things. Courts

recognized warranty of habitability.

3. Retaliatory eviction-LL would retaliate and evict the T for taking LL to court, thereforecourt made LL have a good reason to evict T.

4. LL tort liability- started to find LLs liable in tort where they were not before.5. Landlord's Duties: Tenant's Rights and Remedies:

A. Quiet Enjoyment and Constructive Eviction:i. Quiet enjoyment: Every tenant has the right to quiet enjoyment, this obligation is implied by

law.

ii.

LL also has obligation to refrain from wrongful actual or constructive eviction.iii. Constructive Eviction: If the LL substantially interferes with the tenant's use and enjoyment ofthe leased property, so much so that the intended purpose of the occupation is frustrated, a

constructive eviction has occurred. T is not physically ousted. The tenant may move out,

terminate the lease, and will be excused from any lease obligations.

iv. 3 elements of Constructive Eviction:1. Wrongful act of failure of the landlord2. Substantial and material deprivation of the tenant's beneficial use and enjoyment of the

premises

a. Courts try to be objective and take into account duration and severity ofinterference, foreseeability, and ease or difficulty of abatement.

b. Reste Realty Corp. v. Cooper: continued flooding in office space constitutedconstructive eviction because tenant was deprived of her use and enjoyment of

the premises. If the tenant knew of the problem before signing the lease, then

they would have been deemed to waive any constructive eviction claim arising

from that problem..

3. Complete vacation of the premises by the tenant.a. The tenant must completely vacate the premises within a reasonable time

(depends on circumstances) after the interference.


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b. Reste Realty Corp. v. Cooper: The tenant did not waive the claim by staying therefor a while because they were assured by the LL that it would be fixed, but it was

not. They left when it was apparent that it wasnt going to be fixed.

v. RecoveringDamages: The tenant is able to stay in possession and sue for damages equal tothe difference between the value of the property with and without the breach. Tenants can

also recover damages caused by the constructive eviction.

6. Warrant ofHabitability: Traditional rule is that "caveat emptor applies"-not the modern trend.A. Implied warranty of habitability: Imply into every residential lease a warranty of habitability.

Obligation consists of a warranty implied at the inception of the lease and implied duty of repair

throughout lease.

i. Illegal lease: If the LL knows that the premises is not habitable, the lease is unenforceable(Brown v. Southall). The tenant is a tenant at sufferance and LL is entitled to reasonable rental

value of premises. The illegal lease doctrine does not apply if the conditions develop after the

creation of the lease.

ii. Rationale:1. Common in contract law, since lease is a K, should be implied in it.2. Urban tenants lack skills needed to fix premises to make conditions better3. Addresses the unequal bargaining power of LLs problem4. Encourages compliance with housing codes.

iii. Hilder v. St. Peter: P lived in LL's (D) apts. They were uninhabitable and court held that therewas a breach of implied WOH. Landlord know of the conditions but did nothing.

iv. Scope of Warranty: The LL has not breached until they know of the conditions and have areasonable opportunity to correct it, but do not.

v. Remedies for LL breach of WOH: tenants rent obligation is suspended.1. Terminate and lease2. Stay and withhold rent3. Stay and repair-use rent money to make repairs.4. Stay and recover damages-tenant can stay and recover damages in the form of a rent

abatement or deduction.5. Stay and defend-use the LL's breach as a complete defense to an eviction based on their

failure to pay rent (Hilder v. St. Peter-value as warranted).

6. Punitive damages-circumstances involving willful, wanton, and fraudulent conduct(Hilder v. St. Peter).

Section 6: Concurrent Interest:

1. Generally:A. Concurrent ownership occurs when the same interest in property is owned by more than one

person at the same time.

B. All types of property may be owned simultaneously by multiple people, a condition that invitesconflict among co-owners. While co-owners are generally free to specify terms of their relationship,law must provide some default rules that mediate conflict.

2. Forms of Concurrent Ownership:A. Tenancy in common:

i. Separate but undivided interests in the same interest in property. Each tenant in commonowns the entire property but must share that ownership with the other tenants in common.

ii. May be alienated, devised, or inherited separately from the other tenancy in commoninterests.

iii. No survivorship rights.


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iv. Property that passes by intestate succession to 2 or more heirs is always a tenancy incommon.

v. Tenants in common may own unequal shares and different estates.vi. Creation of tenancy in common:

1. Modern- any conveyance or devise to 2 or more people unless joint tenancy is clearlyintended. A conveyance of real property to 2 or more people who are not married is

presumed to convey a tenancy in common, this is a rebuttable presumption. Evidence

against presumption is a clear statement in conveyance that another form of co-

ownership was meant.

2. Ex: A, B, and C, own Blackacre. A conveys interest to B. B has 2/3 interest, C has 1/3. If Cconveys to D for life, then to E and her heirs, B, D (possession), and E (remainder) are all

tenants in common, even though E has a future interest.

3. There is a rebuttable presumption that tenants in common have equal shares in theproperty unless otherwise stated in the grant. Evidence extrinsic to the conveyance

doesnt matter (e.g. relative contributions of purchasing costs).

B. Joint Tenancy:i. Undivided share in the same interest with right of survivorship (surviving joint tenant owns

entire estate). Upon the death of one joint tenant, the share held by the remaining joint

tenants increases proportionately.1. Ex: A,B, and C are joint tenants. A dies leaving property to D by will, B and C now own

equal undivided interests. A's will is ineffective to transfer his interest because interest

expires at death. If C dies, B owns entire property.

ii. Not alienable (but tenants can waive right to other tenant), devisable, or inheritable-entireinterest dies with a joint tenant.

iii. Four Unities of Joint Tenancy: Must have all 4, if not its a tenancy in common. All tenantsmust take their interests:

1. At the same time2. Under the same instrument

a.

Many people use a straw man to make this happen. Some states have statutes thatallow a person to create a joint tenancy to himself and another by himself to

create JT.

3. With the same interestsa. Must have same share of the undivided whole and same durational estate.

4. With the same right to possession of the entire propertya. After creation, this can change and JTs may agree to divide possession or do

whatever they want.

iv. Creation:1. Common law: presumed that any conveyance or devise to 2 or more people (not

married) was a JT.

2. Today: tenancy in common is presumed instead, unless there is clear evidence of JT.3. Today: married people are presumed to take either as tenants by the entirety or JTs.4. Sufficient to create JT: "to A and B as joint tenants with right of survivorship" will create

JT.

5. Not Sufficient: "jointly", "joined together".6. "as joint tenants"-some courts say its ok, others do not.

v. Severing Joint Tenancy:1. A joint tenant conveys his interest to a third party or to another joint tenant-JT is

severed as to that interest.

2. Unilateral-Conveyance to Self:


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a. Under CL: not allowed, void. Modern law: allowed in minority of jurisdictions, notmajority.

i. Riddle v.Harmon (CA)-wife validly conveys to herself to sever the jointtenancy.

b. Usually, have to use a straw man.3. Mortgage

a. Title theory- a mortgage by one joint T severed a joint tenancy because the unity ofinterest is destroyed.

b. Lien theory- The borrower has a lien against the property, a mortgage does notalter the title-NO severance. Upon the death of the mortgaging tenant, prevailing

view is that surviving joint tenant is wholly unencumbered by mortgage and is free

and clear of it.

i. Harms v. Sprague(IL): Majority view: one of the JT mortgaged their interest,NO severance occurred, other joint tenant was free and clear of the

mortgage. The mortgage only burdened the joint tenant who took it out and

it died with him. The majority view is criticized because lenders will not be

able to recover on the mortgage once that JT dies, punishes stupid lenders

for not lending to more than one JT to secure payment.

ii. FL is a lien case.4. Lease:

a. At common law JT was severed because unity of interest was destroyed, the leasewas valid.

b. Modern: JT NOT severed by a lease-most jurisdictions say the lease does notsurvive the death of the leasing JT.

5. Agreement-so long as intention is clearly manifested, usually divorce. Unless there isspecific evidence of intent to sever, an agreement to permit one JT to have exclusive

possession does not destroy JT.

6. Operation of Lawa.

CriminalHomicide-one JT kills another JTb. SimultaneousDeath-divides joint tenancy into separate shares

C. Tenancy by the entiretyi. Creation of:

1. At common law-any conveyance or devise to a husband and wife (must be legalmarriage).

2. Modern-If conveyed to husband and wife, either tenants by the entirety or joint tenants.Does not HAVE to be tenancy by entirety as in CL. Most states- rebuttable presumption

it is a tenancy by entirety.

3. MUST have same 4 unities of JT.ii. Right of survivorship is indestructible as long as marriage lasts.

1. Severing Tenancy by the Entirety: May not be severed by one tenant acting alone.a. Divorce (not just separation)

i. Turns it into a tenancy in common (majority view)b. Death of either partyc. Conveyance by both of them

iii. Common Law Operation- Husband had right to exclusive possession and survivorship right.Both could be alienated by the husband inter vivos. Wife only had survivorship right which

couldnt be alienated w/o husbands consent.

iv. Modern Law- Both spouses are equal.


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1. Equal right to alienate: Some states allow equal right to alienate -enables creditors toseize property.

2. Neither spouse can alienate: Majority says that neither can alienate survivorship right orpossession, prevents creditors of either spouse from seizure of their interest in tenancy.

a. Sawada v. Endo: (Hawaii)- court held that tenancy by the entirety may not besubjected to claims of creditors against only one spouse. (same rule as FL).

3. Variations: Few states- creditors can seize survivorship right, but not possessory rights ofeither spouse.

4. Govt. can seize as if it were a tenancy in common, no matter what state laws are.v. Personal property- No tenancy by the entirety for personal property at CL, but at modern law,

most forms of personal property can be in tenancy by the entirety (not a bank account).

Section 7:Easements:

I. Easement defined -an interest in land that entitles the holder to use the land owned or possessed byanother person. It is not a freehold estate. It is the right to use another person's land as opposed to

exclusive possession.

a. Ambiguous Grant-Most courts say that there is a rebuttable presumption that an ambiguous grantconveys an easement if it conveys a limited area for a limited purpose.

II. Types of Easementsa. Affirmative/Negative or Appurtenant/In gross-can have a combo of either to make 4 diff kinds.

i. Appurtenant- one that benefits the owner of another parcel of land. The benefitted parcel iscalled the dominant estate, the burdened parcel is the servient estate. The easement

appurtenant passes with the dominant estate if it is transferred. Usually words of inheritance

"and his heirs" signify this.

ii. In Gross- designed to deliver a personal benefit rather than a benefit to a landowner. Notattached to a parcel of land. They create a personal right to use the servient estate. No

dominant estate is involved. Should grant a "personal right".

iii. Ambiguous grants-courts prefer to create easements appurtenant if the grant is ambiguous.Use words of inheritance to create easement appurtenant.iv. Affirmative easement-permits a person to use the servient estate in a specified manner.

v. Negative easement-the right to prevent specified uses of the servient estate-it conveys noright to use the servient estate.

1. Common law-negative easements were always appurtenant. Negative easements wereonly granted for 1) light 2) air 3) subjacent or lateral support (excavate to undermine

neighbors structure) 4) continuing flow of artificial streams (divert irrigation ditches or

aqueducts).

b. Profits- the right to take a natural resource or crop from the land of another. Common law prefersto construe profits as in gross and they are freely assignable. A secondary easement could

accompany this like the right to walk across the land to go to a pond and take the fish out. This

does not have to be express in the grant.c. License- Permission to enter the licensor's land. They can be oral, written and are revocable at any

time unless made irrevocable. Courts prefer to construe ambiguous cases as creating a license

rather than an easement in gross.

i. Irrevocable licenses- Equitable estoppel- Holbrook v. Taylor: H permitted T to use a roadwayacross his property so that T could reach his own property.H knew and did not object to T

using the road to construct a house on his property. When H tried to revoke the license, the

court held that he could not because H was equitably estopped from revoking it. Minority

view-No estoppel-Henry v. Dalton.

III. Creation of Easements-Grant, estoppel, implication, and prescription.


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a. By Grant- requires a writing signed by the grantor.i. By reservation-grantors convey land and in the same deed try to reserve a new easement in

favor of the grantor or a third party (not pre-existing). Common law did not recognize either

of these. Modern law makes a reservation in favor of grantor valid usually. Majority of

modern courts say that in favor of third party is void. Willard v.First Church of Christ:

reversed common law rule that reservations in favor of third party is void and made this

reservation valid to keep the grantor's intent.

1. Exception-grantor grants everything except something that existed before-differentfrom reservation. Typical exception case is not an easement case.For example-someone

owns 20 acres and grants the land to someone except for 2 acres by the highway. CL

distinguished between such a reservation (which created a new easement) and an

exception (which passed title subject to a pre-existing easement). This distinction was

important when easements could not be created in the grantor by reservation but it of

no importance now.

b. By Estoppel:i. A license is irrevocable if equitable estoppel makes it so. If a licensor grants a license on which

the license reasonably relies to make substantial improvements to property, equity requires

that the licensor be estopped from revoking the license (Holbrook v. Taylor) -see above.

c. By Implication-somebody (owner) subdivides propertyi. Implied By Prior Use-elements tending to establish this:

1. Common owner-prior to division the quasi-servient and quasi-dominant estate must beowned by same person.

a. Implied Grant:i. When an owner owns a parcel and divides it and keeps what is now the

servient tenement, the owner is impliedly granting an easement to the

grantee. A granted what is now the dominant estate to B and did not

expressly state that there was an easement through A's servient estate-it is

implied with the grant. In order for B to enjoy the property that A granted to

B, he needs to use the easement.b. Implied Reservation:i. Switch A and B's position above. If A kept the dominant estate and granted

servient estate, he would imply keeping his easement on the servient estate.

2. Reasonable necessity- the easement must be reasonably necessary for the owner of thedominant estate to use and enjoy her property. This assures that the easement was

likely intended to continue after the division. An E implied from prior use can only be

appurtenant. Most courts require this for easements implied by grant or implied by

reservation (Van Sandt v. Royster- the court rejected the older view that when an

easement implied from prior use is create by implied reservation, strict necessity is

required. The grantor should not be able to detract from the grant.

3. Continuous Use/intended continuation4. Existing Use5. Apparent-not necessarily visible, could be detected or inferred from reasonable

inspection.

6. No necessity required. If A owns the whole property and never was a road that ranacross property and then sells landlocked half to B-no easement by prior use because

there was never a road there-but B may get one by necessity if no other road.

7. MAWDE-34.08:


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a. Easement may be implied from conveyance of quasi-dominant tenement, must beapparent, must be permanent, must be important for enjoyment. Unity of

ownership is a required element here as well.

b. Implied by reservation-benefitting conveyor of quasi servient tenement. This is avariation of that discussed above. Trend is to allow it by using elements listed

above.

ii. Implied By Necessity: When a common owner divides his property so that one of the parcelsis left without access to a public roadway. An easement is then implied. This is economically

and socially beneficial.

1. Permitted only for right of way to and from property that is landlocked.2. In cases of multiple division, easement by necessity is created at the moment parcel is

landlocked, so easement burdens the last parcel split off (parcel that completed the

landlocking).

a. Othen v.Rosier- othen had an implied easement upon some property, just notRosiers.

3. easement implied by necessity cannot burden property never owned by the commonowner.

d. By eminent domain of the government. Power lines are easement in gross. Traditional rule-Easements in gross are not transferable. But if it is for commercial purposes-it is assignable.i. Implied by Necessity (MAWDE)

1. Normally involves owner who conveys inner parcel that is landlockled parcel- A (owner)holds parcel closest to public road, sells landlocked parcel to B and B gets an implied E

by necessity . If there was a road that B could take-even if it is inconvenient-NO

necessity.

2. Unity of ownership must be proved-3. Finding of necessity is required- if landlocked parcel has no other means on ingress or

egress. Not necessity if it is just convenient to have an easement.

4. Government ownership poses special problems-problems encountered where the onlyunity of title was the original ownership by the govt. Cannot really use the fact that atone point the government owned ALL the property-can't look too far back.

e. By Prescription (Hafner v.Hansen)i. An easement cannot be acquired by adverse possession because they are not possessory

interests, BUT adverse us for a sufficient period of time can ripen into an easement by

prescription. Must meet same tests as AP, except that the exclusive means something

different.Hafner and Hansen: not open and notorious to be a prescrip. easement.

ii. May be appurtenant or in gross.iii. Same SOL of AP.iv. A permissive use can never become a prescriptive right, however, can become adverse if the

user does things that are inconsistent with mere permission and that give the owner notice of

the users claim of right.v. Exclusive Use: Does not mean that the adverse user was the only user, only that the adverse

users claim does not depend on a like right in others (not in common with the public or

someone else).

1. (Othen.Rossier- Othen claimed that he had acquired easement by prescription butcourt rejected it because it wasnt exclusive-more strict state -TX-wolf said they got this

part wrong. Book says, "most courts define it differently from the adverse possession

requirement. Just because the servient owner can also use the path doesnt mean that

the adverse users use is not exclusive. Thus in most states the user can acquire a

prescriptive easement even though the easement is also used by the servient owner"


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vi. CANNOT acquire prescriptive NEGATIVE easement.IV. Scope of Easements

a. Easement cannot just be used for anything but was the use reasonably foreseeable.i. Ex-someone has a farm and an easement on a neighbors property. Then the farm becomes

owned by a big company and the company divides the land. Can they use the easement? Ask

whether it was reasonably foreseeable at the time the easement was granted if the nature of

the use of property would change to include big industry to use the easement.

ii. RULE: if the future use of the easement was reasonably foreseeable at the time of grant andthe dominant tenement transfers to someone else, then that use of the easement is okay. If it

was reasonably foreseeable but it places too much of a burden on the servient estate then

they could get damages and/or injunction.Does not generally apply to prescriptive

easements.

b. Enlargement of the Dominant Estatei. An easement, however created, cannot be used for the benefit of land that is not the dominant

estate.

ii. Brown v.Voss: Even though usually an easement cannot be extended by the owner of adominant estate to other parcels owned by him and even though he misused the easement, it

does not necessarily entitle Voss to an injunction because there was no evidence ofirreparable harm to Voss from the enlargement.

-General rule: If you own parcel B as a dominant tenement, you cant use the easement for

the benefit of any other parcel. If you do, the owner of the servient tenement can get an

injuction against you.

-Another rule: If the dominant tenement is divided up, there is no rule on how the other

owners can use the easement. The holder of an easement can use the servient estate in a way

thats reasonably necessary for the enjoyment of the servitude. This may change to

accommodate the normal development of the dominant estate.However, cannot cause

unreasonable damage or undue harm to the servient estate.

V.

Termination:a. Release should be in writing.b. Ends at the expiration of the easementc. Merger-Owner of dominant estate buys servient estate or vice versa.d. Estoppel-servient owner reasonably relies on upon a statement or representation by easement

owner.

e. Abandonment-Prescriptive easement ends by non-use for a statutory period of time.Hard to proveabandonment outside of prescriptive easements.

f. Condemnation- use of eminent domain to take private property for govt use and they pay fairmarket value.

Section 8: Real Covenants:

I. Covenant: a promise to do or not do something with the land.a. Covenants can run on the benefits side (covenantee's assignee), the burdens side (covenantor's

assignee), or on the benefits and burdens sides (covenantee's assignee and covenantor's assignee).

b. The burdens and benefit side distinguish themselves once there has been a breach. The personbreaching is the burdens side, person enforcing is the benefits side. Usually, defendant is burdens

side (not always).

CovenanTEE (Benefit) CovenanTOR (Burden)


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P D

y Burdens: covenantee's assignee sues covenantor.II. Real Covenant: usage that runs with the land (with an estate in the land). It binds or benefits

subsequent owners of the estate. It is a promise concerning the land, not a condition.Violating the

promise gets damages, violating a condition gets forfeiture. Conditions usually go with defeasible fees.

a. May be affirmative or negativei. Affirmative: promise to use the land in a specific wayii. Negative: promise not to use the land in a specific way.

b. To run at law, must have:i. Intent: original parties must have intended that the burden, benefit or both rub with the land.

This is usually satisfied by a statement in the covenant that binds "its successors, heirs, and

assigns".

ii. Horizontal Privity: Required for burdens and benefits and burdens case. Not for benefitsrunning case. Ask when and where you are to determine what the requirement for this is

(they build on each other, England and US, US, some US states)

1. Tenurial relationship: original parties are landlord/tenants-English view.2. Dominant/servient relationship: both have mutual interests in the burdened estate. -

MA(simultaneous) privity

3. Grantor/grantee relationship: instantaneous privity, conveyance4. Majority of US jurisdictions: To have horizontal privity in modern america, can have

tenurial relationship, grantor/grantee, or simultaneous privity (MA).

5. Free alienation of property: if you believe in this then you should want to keep thehorizontal privity requirements because you want owners to jump through hoops to

make promises that will last for eternity.

iii. Vertical Privity: required for all three cases, but the requirement is more relaxed on thebenefits side.

1. Burdens: must convey same exact interest in estate2. Benefits: Must convey some interest of the estate.3.

Adverse Possessor: The burden does not run to an adverse possessor because novertical privity.

4. Third party beneficiaries: If a third party is explicitly benefitted, are they able to sue toenforce the benefit of the covenant?

a. Homeowners Assoc: Neponsit Property Owners v. Emigrant Bank: The third partybeneficiary did have vertical privity even though they did not succeed to any estate

of the benefitted promisee, because they were the corporate agent of the owners

of the benefitted estate.

Burdens running case Horizontal & vertical privity required VP=same estate (for yrs,

FSA, etc

)

Benefits running case Vertical privity required (horizontal

not required)

VP=any estate relationship

Benefits and burdens

running case

Horizontal and vertical

iv. Touch and Concern: does it depress the value of the burdened land and increase value ofbenefited land?


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1. Covenants to pay money to a homeowners assoc. are said to touch and concern theland so long as the service produced by the payment enhance the value of the burdened

land. (Neponsit).

c. Remedy:i. Legal remedy is damages. If a client wants damages for the breach of the covenant, must prove

that it is enforceable as a real covenant. If client wants injunction=equity-equitable servitude.

III. Equitable Servitudes:a. Defined-an equitable servitude is a covenant about land use that will be enforced in equity (by an

injunction) against a successor to the burdened estate who acquired it with notice of the covenant.

b. Difference between real covenant and equitable servitude: A covenant about land use may be areal covenant, an equitable servitude, or both.

i. Remedy- real covenant: enforceable at law by an award for money damages. ES: in equity byinjunction

ii. No privity needed- Neither horizontal nor vertical privity is needed for either the benefit orburden of an ES to run to successors in the burdened or benefitted estates.

iii. Creation- ES can be created by implication in many jurisdictions.Real covenant can only becreated expressly in writing.

c. Origins of ES: Tulk v. Moxhayi. Under law, burden would not run because no horiz privity, so Tulk wanted an injunction.

Court allowed this because it would not be fair otherwise. Moxhay had notice, there was

touch and concern and intent.

d. To enforce a covenant as an equitable servitude (run at equity), must have:i. Intent-express or impliedii. Touch and concern-does it depress the value of the burdened land and increase value of

benefited land?

iii. Notice- actual or constructive1. Record: in the chain of title.2. Inquiry: few courts have ruled that a purchaser should inquire about them if

neighborhood exhibits certain charater (Sanborn).e. Creation:i. Must be in Writing:

1. Exception (Common Development Scheme) many jurisdictions allow for creation of anegative ES by implication from a common development scheme where a developer

sells lots in a subdivision on the promise that all the lots will be burdened with the same

use restriction and then fails to carry through on the promise to burden all lots.

a. Sanborn v. Mclean - many states will imply a negatives equitable servitudes wherea developer sells lots in a subdivision on the promise that all the lots will be

burdened with the same use restriction, but fails to carry through on the promise

to burden all lots.

b. The case above is a minority and usually the common scheme must be veryuniform in order to enforce this. Usually, if the developer sells lots with and

without covenants attached, cannot enforce of lots that do not have them.

2. Common scheme: development must be of uniform character and recognizable as suchby purchasers. No covenants would be enforced on lots conveyed before the common

scheme began.

3. Negative: courts will imply reciprocal covenants only when it is negative.ii. Some jurisdictions completely reject creation by implication (CA, MA).

f. Racial Restrictions:i. Shelley v.Kraemer (Missouri):


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g. Termination:i. Merger: if same person acquires title to burdened land and all of the benefitted land. Applies

to real covenant and ES.

ii. Eminent Domain:iii. Doctrines terminating equitable servitudes:

1. Changed conditions within the affected area2. Changed conditions in the surrounding area:

a. It is inequitable to enforce the servitude if the change in neighborhood is sopervasive that all benefitted lots have lost benefit of the covenant.

b. Western Land v. Truskolaski: NO termination occurred- court upheld injunctionbecause the covenant had not been terminated. The covenant was still of a real

and substantial value to residents.

iv. Abandonment: servitude may be abandoned by widespread violation of the covenant if theviolations are so numerous and no enforcement action is taken.

1. The average person would reasonably conclude that use has been abandoned2. Frustration of purpose- enforcement would impair value of burdened land without any

benefit.

v. Balance of hardships: if the hardship imposed by the injunction is very large in relation tobenefits.1. Rick v. West: social loss from issuing an injunction was greater than benefits produced.

*If it looks like it could be a covenant or a FS subject to condition subsequent, choose covenant because

remedy is damages/injunction as opposed to forfeiture.

Property Outline MEGAN

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