Property Parker Fall2010

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Fall 2010

New Property Outline

General Information

Six Property Rights1. Right to use the your property2. Right to exclude

a. One of the most important rights in propertyBUT it is not absoluteb. In specific cases, legal rules limit the right to excludethese rights of others are calledRights of

Access3. Power to alienate (sell)4. Right to bequeath5. Right to be immune from damages6. Right from govt. seizing the property

#1 Sources of Limitations on the Right to Exclude

Common law Limits

The more an owner has opened her property to the public, the more likely it is that the courts will findpublic rights of access to the property.

1. Trespass: An unauthorized intentional intrusion on property possessed by another (both above andbelow the surface)

i. INTENTnot necessary to show that the trespasserintended to violate the owners legalrights.

1. Ex: Mistaken entry onto anothers land is considered a trespass2. Courts look at the right to exclude v. the right to reasonable access

A. 3 Different Formsi. Physicalentry onto anothers land

ii. Through an agentsuch as an employeeiii. Objectsuch as a building which extends over the land of another

B. 3 Exceptions (i.e. not considered a trespass when)i. Consent: when the owner has consented to a person being on that property

ii. Necessity: Entry isjustifiedby necessity to prevent a more serious harm to persons (or)property (prevent a crime, or save a life)

iii. Public Policyif trespass is encouraged by public policypaying respect to gravesite.1. State v. Shack (1971) : Ds entered upon private property against order of the

owner to aid migrants employed and housed there.a. Rule: Real property rights are not absolute; and necessity, private or

public, may justify entry upon the land of another.b. Sic utere tuo ut alienum non laedas= Use your property in such a way as

not to harm others. (Rights are relative and there must be anaccommodation when they meet). Property owner cannot exercise his rightto exclude if it means harming someone else.

c. Factors at play (Holding):i. Property rights serve human values. There is a social good/goal at

hand.ii. Welfare of migrant workers, an underrepresented group.


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iii. Necessity of providing legal counsel and medical services tomigrants justified the entry.

iv. Migrant workers allowed visitors of their choice (w/i reason),government workers, and journalists if they choose.

v. Right to privacy too fundamental to be denied in support ofproperty rights.

vi. Owner still has a right to the operation of his farm withoutinterference.

vii. Court holds that under NJ common law no trespass occurred. Lawof trespass was meant to protect landowner interests fromunprivileged intrusions, but entry of legal aid lawyers did notviolate these interests. Under the NJ law the right to exclude inreferring to private property is super ceded by the idea that thesepeople were migrant workers and the defendants were aid workersand they have a right to come on to the property to observe the

migrant workers in their natural environmentviii. There are limits on when and how aid workers can come onto

land.ix. Public policy argument: the right of individuals supersede

property rights; exercising property rights would render federal lawineffective, property rights serve human values

x. In the end, there is no trespass b/c the owner had no right toexclude this particular group of people (govt workers).

xi. Trespass by necessity/good of public policy is no trespass at all.xii. This case is an example of an exception to trespass for public

policy reasons

xiii. The legal basis for the decision is a federal statute/Act of Congressd. Issue: Does an owner of real property have the absolute right to excludeall others from that property?

e. Broad Holding: No. The employer may not deny the worker his privacyor interfere with his opportunity to live with dignity and to enjoyassociations customary among our citizens

f. Narrow Holding: Ownership of real property does not allow the owner toprevent access to aid workers seeking to provide help to migrant workerson land

g. Tedesco can still exclude people, impose reasonable restrictions, but youmay not use damages and security as a pretext to gain a monopoly on your

workers.2. Desnik v. ABC (PG. 108) Eye Center Case

a. Logic similar to State v. Shack, no interests were violated in either case ofthe owners of the property

b. The plaintiffs are claiming that the defendants trespassed and committedfraud, and gained access by false promises

c. Holding: Ds conduct does not necessarily amount to fraud because ifthey had revealed their true identity, ABC would have been treateddifferently. The court compared this to a food critic.

d. Rationales: Desnik wants patients and ABC really did come in as patientsand because its a public place, they can document the procedure without


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the doctors consent. The law gives legal effect to consent procuredthrough such types of fraud. There was no invasion of any of the specificinterests that the tort of trespass was designed to protect; it was not aninterference with the ownership or possession of land. Nor were any

embarrassing details of anyones life publicized.3. Uston v. Resorts International Hotel (Card Counting Case)

a. P was well known for his ability to count cards so he was excluded fromcasino. (At the time he was not counting cards though)

b. Issue: Do owners of property open to the public have the right tounreasonably exclude particular members of the public?

c. Holding: No. Uston did not come to the casino to disrupt the activitiesgoing on there, nor was he a security risk. Resorts had no legitimateinterest in excluding Uston from a place to which the public is invited.

d. Proprietors of amusement facilities, whose very survival depends onbringing the public into their place of amusement, are reasonable people

who usually do not exclude their customers unless they have a reason todo so. (pg. 122)

e. Note: the old common rule said that owners of public places were giventhe absolute right to exclude members of the public but then the Civilrights amendments were made and subsequently prohibited owners fromexcluding based on race and so these rights have continued to limit theright to exclude.

C. Remediesi. Damages

1. Nominalalways payable, even if no harm has occurred2. Compensatoryif trespasser has caused harm to the propertymeasured by thecost of restoring the property or by the depreciation in market value3. Punitiveform of punishment through damagesworks to deter outrageous and

malicious behaviorii. Injunction

1. Forces the wrongdoer to cease the wrongful conduct (or) correct any harm to theproperty caused by the trespass

iii. Declatory Judgmentiv. Decision of the court stating the legal rights of the plaintiff against the other party

(migrant workers in State v. Shackcould ask for a Declatory judgment on top of aninjunction)

Public Accomodation Statutes:D. Civil Rights Act of 1964

i. You cannot discriminate on the basis of race, color, religion, or national origin goodservices, facilities, advantages and accommodations. This statute does not cover sex, age,disability, or sexual orientation.

ii. All persons are entitled to the full and equal enjoyment of goods, services, facilities,privileges, advantages and accommodations of any place of public accommodation

E. Place of Public Accommodationif operations affect commerce, (or) is supported by stateaction

i. Inn, Motel or other Lodging establishment (unless it contains 5 rooms or less and theowner lives in the house as wellbed and breakfast doesnt count)


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ii. Restaurant, Cafeteria (or other facilityprincipally involved in selling food forconsumption (on) the premises)including, but not limited to food sold on retailpremises and gas stations

iii. Theatre, Concert Hall, Sports Arena any place of entertainment even if located in aninn with less than 5 rooms.

iv. Noteit does not need to a be attached to a fixed parcel of real-estate (Little Leagueliable for discrimination against girls, even though they are not located to a fixed place)

F. The act does not create a private right of action, you cannot sue an establishment, you have tofile a complaint with a governmental agency

G. EXCEPTIONS to this act:i. Private Establishmentsprovision do not apply to private clubs or establishments not

open to the public (except) to the extent they are made available to the public withregards to the above categories

ii. Courts look to two factors to determine this1. 1) Selectiveif organization is selective in who they accept2. 2)Limitsif there are limits to the number of members

H. Additional Notesi. Note that Civil Rights of 1866 only regulated race discrimination and allowed for

damages (private action)ii. 14th Amendmentprohibits that segregation be supported by State action

iii. Each state has their own public accommodation statuteswhen these are deemed to beambiguous (without determinative language), look to a) legislative history, b)circumstances surrounding the enactment, and c) the purpose the statute is suppose toserve.

iv. Federal public accommodation statutes trump any contrary state accommodation law(although state law may extend further if it is not inconsistent with federal law)

I. Spirit Murdering the Messenger (1987): black woman prohibited from entering a NYC retailer atChristmas.i. Stores using buzzers to keep out undesirables

1. The issue of undesirability revealed itself to be primarily a racial determination.2. After some controversy the buzzer system remains as a necessary evil that is a

mere convenience compared to the risks of being murdered.3. The author tries to enter a store and the attendant mouths closed. She sees

other white customer inside.4. She was not allowed in and had no recourse.

2. New Jersey Law Against DiscriminationA. Law Constitution is a floor and states cannot fall below that floor but can reach beyond itB.NJ law v. Federal: New jersey is more comprehensive grounds for discrimination far exceed thatof federal law and is intended to be liberally construed.C.Note: Just remember that New Jersey was very progressive in their fight against discrimination.D. Dale Boy Scouts of America *Homosexual Boy Scout Case

i. Dale was expelled from his membership in the Boy Scouts of America on the basis thathe was a homosexual.

ii. Issue: Do all person have the opportunity to obtain all the accommodations, advantages,facilities and privileges of any place of public accommodation without discrimination onthe basis of their sexual orientation?

iii. Holding: Yes. BSA is a public accommodation since it maintains close relationships withfederal and state bodies and with other recognized public accommodations. It does not


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satisfy the distinctly private exception since it does not employ genuinely selectivecriteria, nor does it limit its membership to individuals who belong to particular religionor subscribe to a particular set of moral beliefs. The BSA violated the statute by revokingDales membership.

Federal and State Constitutional Free Speech Access Lights1. The US and State constitutions have different provision and clauses for the protection of free speech

a. Supremacy ClauseFederal Constitution trumps state statutes that are in conflict with each otherb. Free Speech Rights are typically in conflict with Owners Rights to Exclude in Propertya. 1st amendment (declaring rights of access to public centers for free speech) vs. 5th and 14th

amendment rights (protecting the right to exclude on private property, and not to have theirproperty taken for public use without just cause)

2. The First Amendment does not guarantee that you can exercise your free speech rights anywhere youwould like.

a. Lloyd Corp., Ltd v. Tanner (pg. 153) *Handbill Casei. Tanner (D) distributed political handbills in the interior of a privately owned mall.

ii. Issue: Is a privately held shopping center so dedicated to public use to allow privateparties the right to exercise their First Amendment rights on premises?

iii. Holding: No. The mall is not the functional equivalent of a municipal use because itsservices are not so broad to simulate the function of a city government. Since the mall isnot a state actor, Lloyd is entitled to exclude handbillers from its private property.

iv. Dissent: the balance between free speech and the right to control private property mustbe stuck in favor of free speech.

#2 Nuisance

DEFINITIONa substantial and unreasonable interference with the use and enjoyment of lando Different from Trespasstrespass is a physical intrusion on your land and nuisance is

nontrespparary interest where how I use my land harms the property interest of another.o Different from Negligencenegligence focuses more on the conduct and the motives behind the

unreasonable conduct, where as nuisance looks at the resultp. 2731. The conflict betweenfree use andsecurity (land use conflict) are resolved in 4 ways

FACTORS GOVERNING RESOLUTION1. Defendants Privilege(Common Enemydefendant has the right to expel unwanted water, unless

actions constitute a nuisance)courts make this ruling when the plaintiff has failed to make a claim

enforceable under law, and thus is not violating any legal duties owed to the defendant.1. (Result) - situation where the defendant is allowed to continue engaging in the harmful activity2. Damnum Absque Injuria: Damage without legal redress3. Defendant Is free to inflict this type of particular type of injury and the plaintiff can neither

recover damages to compensate for the injury nor obtain an injunction ; plaintiff has no legalright to protection from the defendants harmful activity.

2. Plaintiffs Security (Strict LiabilityNatural Flow Ruleplaintiff entitled to natural force, flow andamount of water governed by land)if the conduct engaged in by the defendant is prohibited underlaw, the plaintiff has an absolute right not to suffer any harm

4. Plaintiff must prove that the action is prohibited conduct, and that the action caused thedamages to the property


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5. (Result)Plaintiff entitled to damages and an injunction3. Reasonableness Testthis is the middle-ground, it allows for the defendant to engage in the activity

if it is deemed to be reasonable, but not if the conduct or harm caused is deemed to be unreasonable.1. May be based on many factors

a. Extent of property harm to the plaintiff and the social utility of the plaintiffs activityb. The social benefits of the defendants activities measured by what society would loose

by preventing the defendant from freely engaging in the harmful activity.c. The overall social costs and benefits of the conflicting land uses of the plaintiff and

defendantd. The availability of alternative means to mitigate or avoid the harm and which owner

can do so at the lowest cost.e. The defendants motive (profit may constitute a legitimate motive while spite or malice-

committing the act for the sole purpose of hurting the plaintiff-may notf. Prior use: Which use is established first (with greater protection some times given to

prior uses). Eg. Farmers have the right to operate their farms free from nuisance

liability, if they were established before surrounding homesg. The harm must be substantial in that owners should not have to bear the burden for the

good of societyh. Right thing in a wrong place (Pig in an ice cream parlor instead of a barn)i. Unusually Sensitive- defendant will not be liable if the complaint made by the plaintiff

is unusually sensitive4. Prior Use: Sometimes legal entitlements are awarded to the person who established the first use.

2. 4 Remedies1. Dismissal of the Complaintdefendant can make a motion to dismiss for failure to state a claim

upon which relief can be granted 12(b)(6)

o No substantial harm and positive social utility, then dismissalo If there is substantial harm and positive social utility and it would put the defendant out

of business, then dismissal

a. Note positive externality is when the defendant cannot afford to pay plaintiff butthe social utility is greater than the harm caused.

2. Damagesplaintiff may ask the court for damages to compensate for the harm already done (mostcommon are damages for the cost of restoration and depreciation in marker value)

o Damages awarded if there is substantial harm but there is social utility3. InjunctionOrder by the court for the defendant to stop doing certain thingsPlaintiff must

expressly state to the court what he/she wants done1. Injunction awarded if there is social harm but negative social utility

4. Purchased Injunctionan order by the court for the defendant to stop doing the harmful activity onthe ground that its social benefits are substantially outweighed by its social costs

1. If there is substantial harm and there is negative social utility but the plaintiff comes tothe nuisance = Purchased Injunction

2. Howeverit is unfair to make the defendant pay for the stoppage (in cases where they werethere first)thus an order is made by the court requiring the plaintiff to pay if he wants theactivity stopped

5. Inalienability Ruleplaintiff has no right to commit the harm, even if an agreement between thetwo parties is reached (or) the plaintiff has the right to engage in the protected activity, even if thetwo parties have contracted against it.


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Flooding and Diffuse Surface Water

Diffuse Surface water is drainage water from rain, melting snow, and springs that runs over the surface of theearth but does not amount to a stream.

1. Civil Law Rule (Natural Flow Rule) - You have the right to not have interference of surface water on yourproperty. You have absolute security any interference will give you the right of action (Pro plaintiff)(Anti-development)

2. Common Enemy Rule- Surface water is common enemy. You can expel it from property and there is noredress from harm. (Pro defendant) (Pro development); very extreme but adopted in most states

3. So Many exceptions were made to these Rules that the reasonableness test was adopted. 4. Armstrong v. Francis Corp- Water draining Case

a. Facts: D drained odd excess water from his property which caused sever injury to plaintiffs propertyb. Possessor of land is not privileged to discharge upon adjoining land, by artificial means, large

quantities of surface water in a concentrated flow otherwise than through natural drain ways,regardless of the means by which the surface water is collected and discharged; Dwas liable to fix

his drainage systemc. This case illustrates shifting to Reasonableness test from Common Enemy Rule

Factors that the case looked at1. The amount of harm caused2. The foreseeability of the harm which results3. The purpose or motive with which the possessor acted

d. Policy Arguments include:i. Freedom of Action v. Security: Weighing the freedom of action with the security of the party

affected to enjoy their rightsii. Competition v. Secure Investment: you want to encourage our free market economy but no

one would invest if their property rights were not secure

iii. Predictability v. Justice in the individual case: Flexible standards are best suited to providejustice in individual cases but they cannot be mechanically applied (unpredictable); basicallyrigid rules v. flexible standards.

Pollution and Interference With Light and Air

NuisancePer Se: activity that is unlawful regardless of the context or scale Nuisance per accidens: an otherwise lawful activity that becomes a nuisance based on the way that

activity is conducted.Page County Appliance Center v. Honeywell, Inc.(T.V. static case)

Honeywell (D) places a computer in a business adjoining Page County Appliance Center (P)that interfered with Pages business of selling television sets.

Issue:Does lawful activity constitute a nuisance if it unreasonably interferes with anothersenjoyment of his or her property?

Holding: Yes. A defendant only needs to show that the aactivity was unreasonable in thecontext it took place. It is unlikely that the presence of a television set constitutes ahypersensitive use. Court says there is no hypersensitive use, having a television is a perfectlynormal use of property.


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If defendant has substantially interfered with ones use and enjoyment of land, How do we determine ifthat harm is unreasonable?

o In determining this the courts balance fairness and welfare analysisso Fairness Analysis

Character of the harm- aesthetic harm will be viewed as less serious than health or safetyconcerns.

Distributive considerations- is it fair to make an individual owner bear the costs ofdefendants socially beneficial activity or should those costs be spread around to theowner causing the damage and its employees and customer?

Fault: Is one of the owners engaged in a disfavored activity? Is the conduct appropriatefor the area? Is the plaintiff come to the nuisance?

o Welfare Analysis Costs and Benefits- the costs and benefits of allowing the harmful conduct must be

compared with the costs and benefits of prohibiting it.

Incentives- what effects will liability or immunity have on incentives to engage in therespective activities? How will the distribution of the burdens and benefits of conflictingland use affect incentives to invest in safety or to engage in desirable economic activities?

Lowest Cost Avoider- which party can more cheaply avoid the cost? Should this partyalso bear the burden of paying that cost?

Fontainebleau Hotel Corp. v. Forty-Five Twenty-Five, Inc. (pg. 284) *Light and Air Case

Forty-Five Twenty-Five, Inc. (P) sought to enjoin the Fontainebleau Hotels (D) construction of anaddition that would block all sunshine from Forty-Fives hotel.

Issue: Is there a legal right to the free flow of light or air from an adjoining parcel of land? Holding: No, there is not legal right to the free flow of light and air. Nuisance law states that one

property holder cannot use his property right to harm the lawful rights of an adjacent landholder. NoAmerican jurisdiction or court has ever found that a property owner has a legal right to air or sunlight.The only way to have a cause of action for light and air would be if it were included in a contractualrelation.

o Laches: Eden Roc never asserted their rights, and then decided to at a much later timeo Negative Easement: When a property owner is trying to restrict what someone else does on his

or her own land.

Contracting Light and Air:o Majority of courts hold that in the absence of a prior agreement, owners have absolute rights to their

property without liability concerning the neighbors interest in light and airo EXCEPTIONspite fences structures erected for the sole purpose of maliciously harming the

neighbor are not permitted

Law and Economicso Economic analysis of law is nothing more then cost/benefit analysis: whether a change from one

legal rule to another will increase or decrease social wealth. Market transactions give economists away to measure costs and benefits. Transactions include three elements

1. An initial distribution of property rights2. An offer price by a non-owner3. An asking price by the owner


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If we assume that homeowners initially have a right to be free form pollution, we askwhat amount of money the factory owner would be willing and able to pay thehomeowners to pay to induce them to agree to allow the factory to continue to pollute-this is the factory owners asking price. Costs are measured by the homeowners asking

price and benefits are measured by the factory owners offer price.o Definition of Efficiency: efficiency is one way to view the goal of increasing social utility, or the

general welfare by satisfying human wants at the lowest possible cost1. Pareto Optimality: where no further exchanges (changes in allocation) can be made

without harming others, or making them worse off then beforedoes not look at theentire pie

2. KalderHicks Wealth Management : change in allocation of resources (OR) a change inallocation of entitlements make some people better off and others worse offif benefitsof the change outweigh the costs (essentially if the winners of the change could fullycompensate the losers and still be better off than before)losses to the individuals areless then the gains to those who are better off

o Externalities: Unless you make corporations pay for the costs they impose on third parties, thecorporation will not have to take into account this cost in determining whether its operations areprofitable. Basically the court wants the corporation wants the corps. to hold themselves accountable byinternalizing the costs.

The Coarse Theorem: Ronald Coarse criticized the argument that property owners should internalize theirexternal costs in this theorem.

o To avoid the harm on the homeowners would inflict harm on the factory owner; to avoid the harm onthe factory owner would inflict harm on the homeowners. The costs are reciprocal

o The problem of externalities arises because two conflicting activities are located near one another.o 6 Ways to Measure Efficiency under the Coarse Theorem (when there is a difference between asking

and offering prices)1. Fair Market Valueattempts to maximize the market value of both parcels of land looks at

their price on the open market2. AuctionLooks at how much the property is worth to each person and how much they could pay3. Status Quomust assign the entitlement to the current owner, and see how much the other party

is willing to pay for it4. Redistributionexisting allocations are unfair, and need to be reallocated5. Reverse AuctionWhich party would ask the most to give up the entitlementhow much would

the other party have to offer in order for you to give up this righ6. Social Welfareharms and or benefits to the prevention of the activity to the community

Prah v. Maretti (pg. 302.) *Solar Panel Case

At early American common law, sunlight was valued for the aesthetic purposes only, and it was left thatan adjacent landowners ability to use his land as he wished outweighed this aesthetic value, and noeasement of light and air was recognized.

Prah (P) sued to enjoin Maretti (D) from building on his land so as to block the flow of sunlight toPrahs solar heated house.

Issue: Does the doctrine of prior appropriation apply to the use of sunlight as a protectable resource? Holding: Yes. Because of the development of technology allowing the practical use of solar energy,

sunlight has taken on an enhanced value. Given this new technology, sunlight must be regarded as a


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valuable resource and the doctrine of prior appropriation applies to protect those who first exploit theresource. A factual question is presented whether Prahs use was reasonable. Therefore summaryjudgment should not have been granted.

Rationale: The use of sunlight is no longer only aesthetic; it must now be regarded as a valuableresource.

# 3 Prescription: Rights that accrue over time

Relativity of Title:An individuals title is not absolute but relative; it may good as against one person, but notas against another who has a better claim (QUESTION)who has a better claim to title? (Title holder-peaceable possessortrespasser)

Tapscott v. Lessee of Cobbs (pg. 97) *Peaceful Possessor Case Lewis, who never had title to the land of which she was in possession until her death, bequeathed that

land to Cobbs (P). Without any pretense of title, Tapscott (D) took possession of the land. Cobbs suedto eject Tapscott.

Issue: Can one in mere possession of land without title maintain an action against another also withouttitle who attempts to take possession away?

Holding:Yes. Cobbs, as possessor, had the right to possession against all except him who has theactual right to the possession. The defendant, who without title or authority to enter and who attemptsto oust the prior possessor, cannot defend his action on the ground that title is outstanding in another.Instead, to successfully defend, Tapscott had to show he had either title or authority to enter under thetitle. Being heir to Lewis possessory interest, Cobbs was presumed to be in rightful possession at the

time she was ousted by Tapscott even though there was no evidence of Lewis being in possession.

#4 Adverse Possession

Adverse Possession Definition: a process through which a person who uses property for a statutorilydetermined period of time becomes the owner of the property and defeats all rights of the person with legal orrecord title.

Title vs. Possession (Color of Title vs. Claim of Title)o Claim of Title-A true owner can assert himself as the true title holder. When this can be

done, there is claim of title.o Color of titlean individual acquires color of title when a written conveyance appears to

pass title but does not do so, either from want of title in the person making it, or the defectivemode of conveyance.

o The adverse possession doctrine transforms trespassers into owners if they have hadpossession according to the specific guidelines (and) for the required time as set out by thestates statute of limitations

o Beneficial because it tends to prevent valuable resources from being left idle for long periodsof time


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o Holmes says these rules developed to protect the rights of the adverse possessor in hisinvestment made

6 Requirements for Adverse Possession (A ECHOS)o Actual possessionshow improvement or the building of structureso Exclusivethe use must be exclusive to the trespasser so that courts know who to give title

tooo Continuousdoctrine rewards continuity of possessionbasis for transfer of titlemust be

consistent with the nature of the landcould be seasonalityNome 2000 v. Fagerstrom (pg. 187) *Summer Cabin Case

o The Fagerstroms (D) used a parcel of land owned by Nome 2000 (P) for variouspurposes from 1944 to 1987 but did not build a house on it until 1978, therebydefeating their adverse possession claim, according to Nome.

o Issue: Does a claim of adverse possession depend on the existence of significantimprovements, substantial activity, or absolute exclusivity?

o Holding:No. Whether a claimants physical acts upon the land of another aresufficiently continuous, notorious and exclusive does not necessarily depend on theexistence of significant improvements, substantial activity, or absolute exclusivity.Use consistent with the use by any similarly situated owner is sufficient to establishclaim by adverse possession. The land in question is rural and thus has a lowerrequirement of use. The Fagerstroms occupied the land sufficiently that theiroccupation was visible in 1977. The various structures erected and the feeling of thecommunity that the Fagerstroms were the owners of the property meets the statutoryrequirement of continuous, notorious exclusive and hostile possession.

o RULE: Whether a claimants physical acts upon the land of another are sufficientlycontinuous, notorious and exclusive does not necessarily depend on the existence ofsignificant improvements, substantial activity, or absolute exclusivity.

o Hostile(Claim of Title)must claim the property as your own This is the keyany kind of permissive use by the true owner to the trespasser would

void the adverse possession claim, as the possession no longer becomes hostile, but ispermitted by the true title holderpermissive use destroys the adverse possessionelement

o Open and Notoriousdone in order so that if the title holder was reasonable, they would beaware of your trespassing

o Statutes: Must meet the time required by the statute of limitations (different for each state)

Rule: The doctrine of tacking allows parties claiming adverse possession to use their predecessors conduct on

the property to meet the time requirements of adverse possession. The relationship necessary to allow tacking iscalled privity. Privityoccurs by contract of sale, gift, or inheritance.


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Brown v. Gobble (pg. 179) *Two-Feet Piece of Land Case

Brown (P) and Gobble (D) disputed ownership of a two-foot-wide tract of property on the boundary oftheir properties.

Issue:Does the doctrine of tacking allow parties claiming adverse possession to use their predecessorsconduct on the property to meet the time requirements of adverse possession?

Holding: Yes. In the case at hand, the requisite period of time for adverse possession is ten years. Theprinciple of tacking has long been recognized in adverse possession cases. This principle allowsdifferent adverse possessions to make up the requisite time for holding such possessions, so long as theyare connected by privity of title or claim. Thus, although Gobble had personally adversely held theproperty for only nine years, the adverse possession by the prior owners of the property, who areconnected to him through the title to his property, helps satisfy the elements of adverse possession,Gobble would meet the time requirement.

Rule: An indefinite and uncertain description of property in a deed may be clarified by subsequent acts of theparties.

Romero v. Garcia (Color of title case)

Deed lacks a signature, it is defective, so plaintiffs lack color of title Romero (P) brought suit to quiet title to land she and her deceased husband bought from his parents. Issue: May an indefinite and uncertain description of property in a deed be clarified by subsequent acts

of the parties?

Holding: Yes. The evidence of Romeros activities in living on the land and paying taxes on that landmade it clear to the surveyor, combined with other extrinsic evidence, where the boundaries of the landin dispute lye

Everything acquired during the marriage is jointly owned between husband and wife. Analysis: the main dispute here evolved around the sufficiency of the deed for adverse possession

because it failed to adequately describe the particular parcel of property.

1) Extent of Land Acquired by Adverse PossessionWithout color of titleAn adverse possessor who enters with no color of title takes possession only of land

actually occupied or controlled.

With color of titleconstructive adverse possession- A good faith claimant who actually possesses some

significant portion of the land under color of title (e.g., a defective deed) is in possession of the entire property

described in the instrument; i.e., she is in constructive adverse possession of the part of the tract she does not

actually possess

Adverse Possession of chattels-Title to personal property may also be acquired through adverse possession.

However, difficulty arises in determining when adverse possession of the owner knows, or reasonably should

know through exercise of due diligence, where the goods are.


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Stolen goods- A bona fide purchasers claim to stolen goods is subordinate to the owners claim unless thestatute of limitations has run

#5 ServitudesEasements (Appurtenant and in Gross)

Definition of Easement: A right ofuse over the property of another2 kinds1. In Gross v. Appurtenant

o Easement in Gross: is an easement benefiting a person whether or not the person owns any specificproperty

So not in connection with the ownership of land No dominant estate involved (held by an individual) Does not pass with the land, but continues to be in the individual

Ex- if Dolores (dominant) buys an easement in gross from Jacob (servient), evenif she sells her house to Roger, she still owns the easement because it runs withthe individual

o Easement Appurtenant: Serves the owner of the dominant estate (owner of the easement) in away that cannot be separated from their rights in the estate

Always need to be neighboring land Rights attached to the estate itself, passes along with title when sold- not severable May not be assigned separately Passes with the property it benefits Ex- Dolores buys an appurtenant easement from Jacob, when she sells her house to

Roger, Roger now owns the easement because he now owns the land

2. Affirmative v. Negativeo Affirmative- the right to do something on someone else's land

No affirmative easements to act on the one's own land Traditionally law of easements did allow creation of an affirmative obligation to

do something on someone's own land for the benefit of other owners, such as aduty to build a structure or pay a monthly fee to a condo association

o Negative- The right to restrict a property owner from using their land in certain ways Right to lateral support Right of air flow Right to light (duty not to block light or easement holders windows) Right to channeled water flow View easements (duty not to block view) Right to solar (access to solar energy), Conservation (historical/scenic views)

Law is hostile toward Negative prescriptive easement- someone else's right to use theirproperty is restricted

Just because one property owner hasnt done something for a long time doesntmean doesnt mean the neighboring land owner accrues rights over time to restrictthem from ever doing it (i.e-fountain blue case)


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Law is hostile because in affirmative you can actually see them and know they arethere, but with negative easement, how do you know someone is accruing rightsby you not doing building or doing something on your land

Harder to show the result of something you didnt do as being something thatshould be protected

Types of Easements:o Expresso By Estoppelo Implied

o By prior useo By necessity

o PrescriptiveExpress Easements:Easements resulting from an express grant or express reservation in a deed

Requirements to create express easements: Must be writingo Express easements are created by agreement of the parties (deed with an emphasis on the intent

of grantor for interpretation purposes)o Must be in writing to be enforceable under the statue of fraudso Exceptions- prescriptive, by estoppels, implication, necessity, and constructive trust.

Easements in Third Partieso Many states traditionally held that a grantor may not sell a parcel of property to A while

reserving an easement over As property in B.o To get around this rule, the grantor can simply convey the property to the party who is intended

to own the easement, that party then conveys the property to the ultimate grantee, reserving an

easement over the property for herself.

Easements by Estoppel: an easement which the servient estate granted for a specific purpose that is not inwriting.

o Most courts use an easement by Estoppel theory concluding that under the facts, the servient estateholder cannot deny the existence of the easement.

o Broadly applied, an easement by Estoppel will result every time a person uses anothers land and acourt finds that person would be inconvenience if he is stopped.

Implied Easements:o The servient owner did not give permission for the dominant estate owner to use her property in all

likelihood the two land owners did not even discuss one parties use of the others land

Elements for Implied easement by prior use (all are necessary)1. The unity of ownership is severed (i.e.- it was one piece of land, broken into two)2. The use was in place before the parcel was severed (i.e.- the common owner must have

engaged in the use before the severance)3. The use must have been visible or apparent at the time of the severance. (still includes

underground pipes etc)4. The easement is necessary for the enjoyment of the dominant estate

Elements of Implied Easements by Necessity


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1. The common owner severed the property2. The necessity for egress and ingress existed at the time of the severance (the severance

caused the necessity)3. The easement is strictly necessary for egress from and ingress to the landlocked parcel

Prescriptive Easements:Means is accrues over timeo Obtained through long, continued, adverse use (6 elements)

o 6 elements (same as Adverse Possession substituting possession for use1. Actual use ,2. Exclusive use (only in a minority of states)3. Open and notorious use,4. Continuous use,5. Hostile use,6. And for the period defined by state statute

o Difference from AP- Prescriptive easement doesnt have to be exclusive because you are notvesting title in holder of easement. Law of many jurisdictions will hold that general use of thepublic wont give individuals prescriptive easement

Running With the Land1. For the burden to run (when the servient estate sells)

o Writingo Intento Notice

Binding only if they have notice (kinds) Actual- must know there is a burden on the property Constructive- if the deed conveying the title is in the proper registry then the

buyer is expected to know there is an easement Inquiry- where courts will hold you to the duty of looking around the property

you buy so as to determine whether or not an easement exist (infer)2. Benefit to run

o Intent (of grantor)Cases Dealing with Easements

Green v. Lupo (pg. 350) *Motorcycle Case (Appurtenant)


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Green (P) granted Lupo (D) a deed release upon the sale of his property on the condition that when Lupoacquired title he would grant Green an easement. Green turned his land into a motor home park, whereresidents of that park used the parcel of land (easement land) for a motorcycle run way and D got madand blocked the easement. P sued to enforce easement.

Issue: Is an easement personal if there is anything in the grant to suggest that it was intended to be tiedto the land retained or conveyed.

Holding: No. There is a presumption against personal easements. The written instrument grantingLupo his easement states the easement would be granted to Green for ingress and egress to theirproperty. Thus the easement was granted to gain access to a particular piece of land and is thusappurtenant and not personal.

Cox v. Glenbrook Company (pg. 353) *Road Widening Case (Appurtenant)

Glenbrook (D) owned land subject to an easement for access from Coxs (P) land; the parties contestedthe extent of the easement.

Issue: Where the grant is unclear, must the extent of the easement be construed as broadly as necessary? Holding: Yes. As broadly as necessary for one family use as defined originally in the easement by the

person holding it rather than the land it benefits. The grant was intended to give ingress and egress tothe land. This intent does not support doubling the size of the road and paving it. The easement islimited to the size and nature at the time of the grant. (Can pave the road but not widen it)

Henley v. Continental Cablevision of St. Louis County, Inc. (pg. 358) *Wires and CablesCase (In Gross)

Henley (P) granted the telephone company the right to construct and maintain telephone and electricalsystems that Continental Cable (D) licensed in order to install cable services. P sued to for injunction toprevent and compel removal of Ds cables

Issue: Are easements in gross freely transferable? Holding: Yes. The easement granted by Henley was not tied to a dominant estate and was thus in gross.The easement ranted was exclusive to the telephone company, and thus the owners of the servient estatecould not affect how the rights are exercised. Because the rights are exclusive they are also alienable,consistent with the use for which the easement was granted. The addition of cable wire falls into thesame electrical and telephone wiring and is no more burdensome on the servient estate. The easementshould be broadly construed to allow the addition of cable wire.

Courts look at 3 factors to determine the scope of the easemento Burden the use causeso Whether the easement is alienable (transferable)o Type of use proposed

#10- Covenants (pg 365-394)

I. Covenants - A promise by one person to another to do something or refrain from doing something. The

covenantee (to whom promise is made) can enforce at law on covenantor (one who

made promise)

I. Real and Equitable


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o Restatement (third) (combining real covenants and equitable servitudes) Abolishes distinction between real covenants and equitable servitudes Privity is not required to obtain damages for breech of contract Covenants are likely to be enforceable today either by damages or injunction as long as

1. In writing2. Intended to run with the land3. Notice4. Touch and concern

Creation of Covenant by Express Agreemento CASES: Davison Bros, Whitinsville Plazao REAL COVENTANS: Running with the land (remedy- damages)

Benefit- owner of dominant estate receives some benefits as a result of the agreement withthe servient estate

Burden- associated with servient estate- the owner of which must either do or refrain fromdoing something.

To show ifbenefitruns (to bind subsequent parties)1. Form of covenant (an agreement in writing)2. Intent of benefit to run

In language of deed3. Touch and concern

When it enhances the enjoyment of one parcel of property by burdening theother

4. "relaxed" vertical privity- A doesnt transfer all to B Ex- landlord/tenant- landlord (A) gets place back after certain amount of

time

Show ifburden runs1. Form of covenant (agreement in wiring)2. Intent of burden to run3. Touch and concern4. Horizontal privity (relationship between original covenanting parties)

Exists only when the restrictions are created in conjunction with the originalinitial transfer (no HP if deed created after original sale of land)5. Strict vertical privity (relationship between promisor and assignee)

Vertical-Denotes the relationship between an original party to the covenantand her successors in interest

Strict- transfer of entire estate from A to B No vertical privity for an adverse possessor

Ex- if A conveys a covenant to B, and C adversely possesses from B, noVP between B and C

Horizontal privity-


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1. Mutual privity- exits when two owners have a simultaneous interest in the sameparcel of land

Ex- landlord-tenant relationship- landlord has future interest and tenant haspresent possessory interest

Missing when one owner sells land to another and the grantor retains nointerest in the land being sold

2. Instantaneous privity- a covenant intended to burden one parcel of land for thebenefit of another can become attached to both parcels if it is created at the moment

the owner of one parcel sells the other parcel A covenant containing in a deed of sale transferring a property interest will

satisfy horizontal privity Covenant in a lease or mortgage satisfies it

Relationships that do not satisfy horizontal privity ( 2 most important)1. Agreements between neighbors that aren't part of a simultaneous conveyance

of another property right

2. Agreements between grantors and grantee that aren't made at the some timeas the conveyance of the property interest burdened or benefited by the

covenant

Vertical privity-1. Strict- transfer of entire estate from A to B2. Relaxed- A doesnt transfer all to B

Ex- landlord/tenant- landlord (A) gets place back after certain amount of time Excluded from vertical privity ( 3 most important situations)

1. Successors in interest who have an estate of lesser duration than the priorowner

2. Neighbors who are intended benefices of the covenant but aren't successorowners or possessors of the parcels owned by the contenting parties

3. Owners who derive their title form the grantor who imposed the restrictionbut who purchased their land before the sale of the parcel burdened by the

covenant.

Equitable Servitude (Injunction)o For Benefit to run

Form Intent Touch and concern

o For Burden to run Form Intent Touch and concern Notice


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Outline Section 11

Interpretation of Ambiguous covenants; changed conditions; undue hardships; statutory regulations

Blevins v. Barry Lawrence County Association for Retarded Citizens- INTERPRETATION OF

COVENANTS, INTENT OF GRANTOR

a. Quick Facts: There was a restrictive covenant for a subdivision that said that the property(lots) was only to be used for single or double family dwellings. A group home tried to

move into the subdivision and a neighbor sought to enforce the covenant because the

group home consisted of 8 unrelated mentally retarded persons. Whats being decided is

whether the 8 people constitute a single or double family dwelling

b. Holding: by plain terms, the courts declared that those words apply only to the structurenot the use of the property. Since the house still meets the standards in regards to

structure, the covenant has not been violated. More formally, the courts held thatrestricting property to single family dwellings was intended to regulate architectural

style rather than the relationship among the persons occupying the structure.

c. Point of this case: When there is ambiguity or substantial doubt as to the meaning,restrictive covenants will be read narrowly in favor of the free use of property.

2) Presumptionsa. Traditionally the policy basis is to promote the free use of land, the rights of the owners to

be free from control of others, and the free alienability of land.

b. Today the touchstone for interpretation of covenants seems to be the intent of the grantor.3) Residential v. Commercial Use

a. Restrictive covenants limiting real property to residential use have caused muchlitigation over whether and under what circumstances a group home constitutesresidential or commercial use.

b. Courts have taken into account whether or not rent is being paid to determine whether thegroup home is residential or for business purposes.

4) Structure v. use: like Blevins, the court decides whether the restrictive covenant is meant torestrict the architecture of the rather than the relationship among the persons occupying the

structure.

5) Group Homes as Families: The Blevins court never got to address whether or not the 8 mentallyretarded people constituted a family

a. Shaver v. Hunterheld that the term family in the context of a covenant restrictingoccupancy to single family dwellings meant nuclear or extended families and did not

Davidson Bros., Inc. v. D. Katz & Sons, Inc. (pg. 367) *Supermarket Case

Facts: Davidson, a supermarket operator in N.J. opened a store on George Street. Then Davidson sells the land to D.

Katz, a rug merchant. The deed contained a covenant prohibiting its use as a supermarket. The city acquired the land

from Katz and attempted to procure another supermarket. The housing authority leased the C store for one dollar a

year on the condition that they make certain improvements. Davidson brought suit to enforce the covenant. The trialcourt applying a reasonable test, determined that a covenant prohibiting the use as a supermarket of property in

downtown new Brunswick was unenforceable.

Issue: can a covenant be sustained if it is inconsistent with the public interest or detrimental to the public good?

Holding: no, no covenant can be sustained it is inconsistent with the public interest or detrimental to the public good.

The closing of the George Street location created an extreme hardship on the residents of downtown News

Brunswick. Experts and testimony was introduces to show that many persons had no access to motor vehicles and

that lack of markets in downtown areas make food more expensive for inner city residents.


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include a group home consisting of five unrelated women since they were unrelated by

blood, marriage, or adoption.

6) Several courts have held that although the operation of group homes violates covenants limitingproperty to single family dwellings, those covenants are unenforceable because they violate

strong public policies prohibiting discrimination against persons with disabilities.a. Thurgood Marshall excluding group homes deprives the retarded of much of what makes

for human freedom and fulfillment, the ability to form bonds and take part in the life of a

community.

7) Antidiscrimination statutes: restrictive covenants that discriminate against persons withdisabilities may violate federal civil rights statutes including theAmericans with Disabilities Act of

1990.

Modifying and terminating covenants

Changed conditions Relative hardship

Other equitable hardships


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El Di, Inc. v. Town of Bethany Beach CHANGED CONDITIONS

Quick Facts: this was an appeal from a permanent injunction granted form the court ofchancery upon the petition of the plaintiffs, town of Bethany beach, prohibiting the def EL

from selling alcoholic beverages at Holiday house, a restaurant in Bethany Beach.

On Appeal, it was undisputed that the chain of title for the Holiday House lot

included restrictive covenants prohibiting both the sale of alcoholic beverages

on the property and nonresidential construction.

This issue here is whether or not the conditions of the Bethany Beach havechanged a sufficient amount to negate the restrictive covenant.

A court will not enforce a restrictive covenant where a fundamental change hasoccurred in the intended character of the neighborhood that renders the benefits

underlying imposition of the restrictions incapable of enjoyment.

The appellate court decided that they dont need to determine a change incharacter of the entire restricted area in order to assess the continued

applicability of the covenant to a portion thereof (because just a portion of the

land had substantially changed was still enough to break the covenant)

The town has changed from a church affiliated residential community to asummer resort visited annually by thousands of tourists. Also the towns

decision to zone restricted property on which holiday House is located

(owned by El Di), is additional evidence of changed community

conditions. 5.4.4.1 Changed Conditions Doctrine1) Changed conditions: conditions will not be enforced if conditions have changed so drastically

inside the neighborhood restricted by the covenants that enforcement will be of no substantial

benefit to the dominant estates.a. Ex- People were already brown bagging in Bethany beach, so why not let them sell it.2) Restatement of Property564: the change must be so radical as to defeat the essential purpose of

the covenant or render the covenant valueless to the parties.

3) The test is stringent: Relief is granted only if the purpose of the servitude can no longer beaccomplished(such as in Blevins when the quiet, Christian community originally intended by the

grantors was no longer feasible)

4) Some statutes also require covenants to be of actual and substantial benefit in order to beenforceable.

The Restatement (third)

1) The restatement alters the changed conditions doctrine in several crucial ways.a. It extends the doctrine to easementsb. It uses termination rules to substitute for controls that had traditionally been applied

through the touch and concern test.

c. It suggests modification of the covenant in lieu of termination if modification will allowthe covenant to serve its original purpose.

Ways to Terminate Covenants

1) Language in instrument: Many subdivisions or condominiums associations are subject tocovenants that terminate within a stated number of years unless they are periodically

renewed by the homeowners association or condominiums owners association


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2) Merger: As with easements, if the burdened and benefited estates come under theownership of the same person, the covenant will terminate

3) Release: all parties affected by the covenant both burdened and benefited estates mayagree in writing to terminate the covenant or release the property from it.

4) Prescription: Open and notorious violation of the covenant without permission for thestatutory period may terminate the covenant by operation of the statute of limitations.

5.4.4.2 Relative Hardship Unlike the changed condition doctrine, which focuses on whether the covenant remains of

substantial benefit to the dominant estate, the Relative Hardship doctrine focuses on the

servientestate.

A covenant will not be enforced if the harm caused by the enforcement, that is, the hardship tothe owner of the servient estate will be greater by a considerable magnitude than the benefit

to the owner of the dominant estate. (cost benefit analysis)

If the benefit of the covenant is substantial, the courts are unlikely to apply the doctrine even ifthe hardship to the servient estate is also substantial.

o Ex: in Lange v. Scofieldthere was a covenant that required consent by neighbors whenyou wanted to build a house and this lady wanted to prevent her neighbor from

building so she refused to sign it because she thought if another house was built it

would lower property values. The court found that any benefit received by her would

be negligible in comparison to the hardship that the enforcement would cause to the

person wanting to build. (hardship outweighs benefit)

The third restatement treats the relative hardship doctrine not as a basis for terminating ormodifying servitudes, but, rather, as a factor to consider in determining the availability and

selection of appropriate remedies.

4.

Other Equitable Defenses (pg 417-419)o General equitable doctrines that may result in non enforcement of a servitude

Acquiescence, abandonment, or unclean hands: The complaining party may be barred from enforcing the covenant if he has

tolerated or failed to object to other violations of the covenant. This may occur if the

plaintiff:

1. Has violated the covenant himself (unclean hands) OR2. Has tolerated pervious violations of the covenant by owner of the servient

estate (acquiescence) OR

3. Has tolerated violations of the covenant by owners of other restricted parcelsin the neighborhood covered by the covenant (abandonment)

Estoppel An owner of a dominant estate who orally represents to the owner of a servient

estate that she will not enforce the covenant may be estopped from asserting her

interests in enforcing the covenant if the owner of the servient estate changes his

position in reliance on the oral statement. (if owner of dominant estates says you

can ignore covenant and owner of servient estate does so, owner of dominant estate

is estopped from asserting her interests) Laches

If the covenant has been ignored or breached for a substantial periodof time- but less than the time necessary to establish prescriptive


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rights- the court may find that unexcused delay in enforcing the

covenant prompted investment in reliance on the failure to object to

the violation and that enforcement of the covenant would be

unconscionable.

4. Marketable title acts Statutes that terminate restrictive covenant if they are not re-recorded after a

specified period of time

5. Statutes (pg 419-424)o Many states have marketable title statues that terminate restrictive covenants if they are

not re-recorded after a specified period of timeo Other states place rigid time limits on the enforceability of covenants and do not let them

be continued simply by re-recording them

CASE: Blakely v Gorin pg 420 The restriction in this case gets lifted and the court takes notice of the high tax base It may not be a fair result, and it overrides the covenant, but Mass. Allows courts to

do that.

Facts Summary: Blakeley wanted to build a hotel to be connected by a passagewayover an alley with an existing structure owned by him. Gorin, who owned an 8 story

apt. building adjacent to the vacant lot objected, alleging that it would infringe on

light and air rights. Gorin also alleged that the new construction would violate the

no mercantile restriction and the 16-foot distance requirement as contained in the

original deeds in Mass.

Issue: Will building restrictions be specifically enforced when they convey an actualand substantial benefit to the person seeking enforcement if they impede

reasonable use of the land for its most suitable purposes.

Holding: No, building restrictions will not be specifically enforced, even when theyconvey an actual and substantial benefit to the person seeking enforcement, if they

impede reasonable use of the land for its most suitable purposes. The legislature

may provide that outdated or unnecessary building restrictions may be

denied specific enforcement by the court. Specifically in this case, the court

found that restrictions were no longer valid since they would impede on the most

reasonable use of the property.

Normally, if any of the following conditioned exist, building restrictions/covenants may be avoided

Change in the neighborhoods character rendering the restriction unfair/unnecessary Conduct of the party imposing the condition constituting waiver The party claiming enforcement owns no land in the parcel subdivision and the restrictions arenot required to achieve a common plan and/or The restriction serves no public/private interest and would inhibit growth of the neighborhood

and/or best use of the land.

Common Ownership of Residential Property


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Varieties of Common Ownership

Tenancy in common (most common)


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Each tenant in common, no matter how small her fractional interest, has the right to possess the entireparcelunless all the co-tenants agree otherwise by contract.

Each cotenant has an undivided interest, meaning that each owner has the right to possess the wholeproperty; the fractional amount is important only in such questions as how the purchase price will be

divided when the property is sold. When a cotenant dies, his interest goes to his devisees under his will or to his heirs under the state

intestacy statue if he has not left a will or otherwise disposed of the property.

Joint Tenancy

Each tenant has the right to possess the entire parcel Unlike tenants in common, joint tenants have traditionally been required to possess equal fractional

interests in the property

Right of survivorshipwhen a joint tenant dies, her property interest is immediately transferred to theremaining joint tenants in equal shares.

o If a joint tenant tries to devise her interest, her will would have no effect; she has no right todevise her interest (unlike in Tenancy in common where you can will your portion)

Formalities of creationcertain formalities are traditionally required to create a joint tenancy. FourUnities

o Unity of time: the interest of each joint tenant must be created at the same moment in timeo Title: all joint tenants must acquire title by the same instrumento Interest: all joint tenants must possess equal fractional undivided interests in the property and

their interest must last the same amount of timeo Possession: all joint tenants must have the right to possess the entire parcel

Severancethe right of survivorship is highly contingent because a joint tenant who transfers herproperty interest can destroy the right of survivorship of her fellow owners.

o If A and B own property as joint tenants, each owner has the right to obtain full ownership of theproperty when the other cotenant dies.

o Severance occurs only between the selling owner and the remaining owners; it does not changethe relations of the remaining owners among themselves

Ex: A, B, C, own property as joint tenants and A conveys his interest to D, the result isthat D owns a 1/3 interest as a tenant in common with B and C, who each own a 1/3interest as joint tenants with each other

Tenhet v. Boswell (Joint Tenancy)FACTS: Johnson, a joint tenant with Tenhet leased his interest in the joint tenancy property to Boswell for aterm of years and died during this term. After an unsuccessful demand on Johnson to vacate the premise, Tenhetsought to establish her sole right to possession of the property as the surviving joint tenant. Wanted to declarethe lease invalid that her co-tenant agreed to.

Issue #1: Does a lease entered into by a joint tenant sever the joint tenancy? No. A lease entered into by a joint tenant does not sever the joint tenancy. A joint interest is

one owned by two or more individuals in equal shares

partial alienation of one of the joint tenants interests does not breach any of four unitiesbecause it only conveys, at most, a life estate por autre vie, thus is only valid during jointtenants lifetime

Does a lease entered into by a joint tenant expire upon the death of a tenant?


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Yes. A lease entered into by a joint tenant expires upon the death of that tenant, a jointtenancy must be expressly declared by a written instrument or tenancy in common results(i.e. is default)

joint tenants did nothing to sever joint tenancy, Johnson conveyed life estate pur autre vie,this interest in property dies with joint tenant and so he cant give any rights that he doesnthave.

Note: Some courts view the lease as equivalent to a sale, and thus severs the joint tenancy

Tenancy by the entirety

A from of joint tenancy available only to married couples. Has been abolished in the majority of state, but is still available in about 20 states. Its current form is similar to joint tenancy, except:

o The co-owners must be legally marriedo The property cannot be partitioned except though divorce proceedingo In most states, the individual interest of each spouse cannot be sold, transferred, or encumbered

by a mortgage without the consent of the other spouse, with the result that the right ofsurvivorship cannot be destroyed by transfer of the interest of one party

o In most states creditors cannot attach property held through tenancy by the entirety to satisfydebts of one of the spouses.

(Majority of states): a creditor can foreclose on the tenancy by the entirety property onlyif both spouses are liable for the underlying debt or both have executed a mortgage. Pg.588 in the book and Pg. 192 in the E&E

Historically, husband and wife were considered a sole entity and so the woman had nolegal identity because the male in the household typically was the only person

Once women entered the workforce and thus started making money, women beganmaking more decisions regarding the property as their legal identity grew.

Sawada v. Endo (Possible fraudulent conveyance case)

FACTS: Sawadas who were injured when struck by a car driven by Endo and unable to obtainsatisfaction in their judgments from Endos personal property, sought to set aside a conveyance by Endo

and his wife of some land which had been held by them as tenants by the entirety.

Issue: Can creditors come after property held in a tenancy by the entirety to satisfy oue cpouse debt? Holding: The interest of one spouse in real property held in tenancy by the entirety is not subject to levy

and execution by his or her individual creditors absent both spouses. After Married Womens property Acts, in tenancy by entirety, neither husband nor wife

has separate indivisible interest in property that can be conveyed or reached by execution Indestructible survivorship, broad immunity from separate creditors, and inability of one

spouse to alienate interest.

Dissent: said wife could alienate estate and either creditor should be able to levy against property So Endo conveyed land to kids to avoid being held liable, and this was NOT fraudulent

Transferability of Co-tenancy Interests (difference between what happens in a JT and TIC)

Joint tenants and tenants in common are free to transfer their interests without the consent of their co-owners. Tenants in common may leave their interests to devisees by will; joint tenants cannot do thisbecause their interests will automatically go their surviving joint tenants when they die.


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o When a joint tenant transfers his interest, the right of survivorship is destroyed and granteesinterest is held as a tenancy in common with the other owners.

Partition

Tenants in common or joint tenants with right to survivorship are not obligated to continue in aconcurrent ownership and they are not required to sell just their interest a separate themselves from theco- tenancy.

o 2 ways to break ties Instead, joint tenants or tenants in common have the power to file a lawsuit forjudicial

partition of commonly held property. In these proceedings, the court may order theproperty physically divided among the co-owners.

If this is not feasible or appropriate, the court will order the property to be sold andproceeds divided among the co-owners in proportion to their ownership shares.

Co-owners may also agree among themselves to partition the property, either though physical divisionor by sale; this called voluntary partitiono

Fiduciary obligations of cotenants or joint tenants to share the benefits and burdens of ownership Sharing the benefits of ownership

Each co-owner has the right to possess the entire parcel. If one co-owner chooses to live inthe commonly owned property and the other co-owner chooses not to live there, the generalrule provides that the tenant in possession has no duty to pay rentto the non-possessingtenant.

Joint tenants and tenants in common do have a duty to pay rent to their co-owners if theyoustedthem.

Ouster refers to an explicit act by which one co-owner wrongfully excludes othersform the jointly owned property.

Constructive Ouster Sole possession by a cotenant does not constitute constructive

ouster without an affirmative act Could have ouster with and without fault Needs based approach Some courts adopt constructive ouster doctrine to require separated

spouses to pay rents Other courts reject constructive ouster and hold affirmative act

with notifying spouse of intent to excludeo Some courts hold that co-owners in possession have a duty to pay rent if

the property is too small to be physically occupied by all the co-ownersbecause the co-owners out of possession have been effectively excluded

from the property. Co-owners have the right to share any rents paid by third parties who are possessing the

property.

A cotenant has the right to lease his interestwithoutobtaining the consent of the othercotenants.

Sharing the burdens of ownership Basic Expenses


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Co-owners generally have a duty to share basic expenses needed to keep the property,including mortgage payments, property taxes and other assessments, and propertyinsurance, in accordance with their respective shares.

Major Improvements Cotenants have no duty to share the costs ofmajor improvements, such as adding a

new room on a house, unless they agree to do so. Some courts will hold that co-owners also have a duty to share basic maintenance and

necessary repairs.

Accounting In many states, co-owners can bring a judicial proceeding for an accountingto require

their co-owners to pay their portion of maintenance expenses or to force co-owners tohand over the requisite portion of rents earned from third parties who possessed thecommonly held property.

Adverse possession and ouster

Difficult to Obtain Since each cotenant has the right to possess the entire co-owned property, one co

owner cannot obtain adverse possession against another unless the possessing tenantmakes clear (usually notice must be in writing, ouster will not suffice to start thestatute of limitations needed for adverse possession) to the non-possessory tenant thathe is asserting full ownership rights in the property to the exclusion of the othercotenants.

Co- Ownership

Olivas v. Olivas

FACTS: Caroline and Sam Olivas were divorced by partial decree in 1984 but district court did not enter finalorder dividing property until 1987. Sam Olivas argued constructive ouster and requested rent value of homefrom time of initial separation until division of prop (3 year gap)

The Olivass held property as community property (all property acquired by each spouse isjointly owned wife has 50% of property) during marriage, after dissolution, held as tenants incommon until property judicially divided

Husband vacated premises Side Notes: Ouster typically suggests an affirmativephysicalact. But constructive ouster can

occur when emotions of divorce make it impossible for former spouses to continue to sharemarital residence. Thus, Spouse would normally be obligated to pay.

Husband bears burden of proving ouster and in this case, Mr. Olivia didnt leave because ofhostility between the spouses, but because he had girlfriend

o Not pushed but pulledo ALso claim for rent came late (husband had been gone too long to now come back and

claim rent because the wife had no reason to think that he was going to come back andwant rent)

HOLDING: NO constructive ouster

Carr v. Deking (Dad entering contract w/o consent of son)


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Facts: George Carr, owner of a parcel of land with his son, Joel Carr, as tenants in common executed awritten lease agreement with Deking without Joels authorization. Joel commenced action to declare novalid lease existed.

Issue: can cotenant lease interest in property to another without consent of the other tenant and without his

joining the lease? Court held cotenant may lawfully lease his own interest in the common property of another without

the consent of the other tenant and without his joining in the lease (this is really shitty thoughbecause the lessee now has the same rights as the co-tenant who leased him the property which isaccess to the WHOLE property)

Each tenant in common may use, benefit from, and possess the entire property subject only toequal rights of other co-tenant

Remember NON-joining cotenant is not bound to lease with first co-tenant and third party Lessee steps into shoes of first cotenant and is tenant in common for duration of lease Cotenant not in lease may not demand exclusive possession but only co-possession

o Carr cannot eject Dekingo Proper remedy if not co-possession ispartition (division of property held by co-

owners granting sole ownership to his/her share of land)o Until land partitioned Deking entitled to farm land pursuant to terms of lease

Holding: Deny Carrs Want of Eviction

Kresha v. Kresha (Mom kicking out son case)

Facts: Adolph Kresha and Rose Kresha (husband and wife) co-owners of 2 tracts of land. Adolph, by writteninstrument and without Roses consent, leased land to their son Joseph for 6 year period. Within these 6 years,divorce and dissolution decree awarded lands to Rose. She advised Joseph she was terminating lease.Issue: Are lands awarded to a spouse subject to previous arrangements that she was aware of but did not

consent to?Narrow Holding: Yes, Wife cannot set aside her sons lease; she was aware of the encumbrance on the

property and she was previously a tenant in common.Broad Holding: Pursuant to divorce proceeding where one party is awarded entire ownership of certain lands,those lands are subject to leaseholders interests in the ex-spouses former ownership interest.

#7 Landlord- Tenant Relations


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Conflicts About Rent

Landlords Right to Receive Rent

3 Main rights in Landlord/ Tenant Relationship

1) The right to receive the agreed-upon rent and 2) The right to have the premises intact and not damaged (tenants duty to not commit waste) 3) Landlords reversion or right to regain possession at end of lease term

Landlords Remedies When Tenant Breaches and Refuses to Leave:

Possession and Back Rent if tenant wrongfully stops paying rent or breaches other material terms in the lease and

continues to occupy the premises, the landlord may sue for back-rent (rent already due butnot paid) and for possession (to evict and re-rent)

Holdover tenant and renewal of the tenancy

if tenant wrongfully holds over after the end of the lease term and continues to pay landlord may choose to accept new tenancy relationship

o most states hold that new tenancy is periodico tenant who holds over is obligated to pay rent to landlord for term of occupation


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May also regard as tenant at sufferance or a holdover tenant and sue for possessiono Can landlord keep rent until eviction proceeding?

Some states hold that the acceptance of rent check creates new tenancy Landlord may have to follow steps for month-to-month eviction process Or, could

avoid by immediately suing for possession and by either 1) refusing to accept checks2) cash checks but write on back not agreeing to new tenancy

Self-help (Landlord handling matter outside of court)

Most states hold that Landlord must evict the tenant through court proceedings Issue when tenant breaches the lease and refuses to leave is whether the landlord is entitled to

engage in self-help to remove tenanto Landlord must evict tenant through court proceedings

peaceable rather than forcible example of changing locks of restaurant in violation of covenant summary procedure

Summary Process (When the landlord uses the court system

Most states have statutes providing for summary process Tenants now have a lot of defenses (implied warranty of habitability) and now court is necessay and

summary process is how courts deal with these disputes

Proceedings allow for relatively fast judicial determination of the landlords claim of a right toregain possession of her property

Limit issues that can be addressed in lawsuit, formerly did not let tenants raise defenses SC has still held that although the landlord does something to offend the warranty of habitability, the

renter still owes money. The tenants duty to the landlord is independent from the landlords actions.

Landlords Remedies When Tenant Breaches and LeavesLandlords duty to mitigate damages

A different set of problems ensues if tenant breaches lease for a term of years by ceasing rentpayments and moves out before end of lease term

Right to sue for possession is of no use since tenant gave up and so the remedy sought by landlordare the following

Three remedies

1) Accept the tenants surrendero If LL accepts T leaving LL agrees that the tenant will not be legally obligated to make

paymentso Back Rent

Does not mean though that tenant is relieved of all financial liability becauselandlord may still choose to sue for back rent owed but not paid before timetenant leaves

Damages for breach of the lease (different from the amount of the future rent) Landlord can sue immediately for damages

Damages are usually calculated by amount that is not the remainingrent but agreed-upon rental value minus fair market value price

The theory is that a landlord can re-rent the apartment but if he canonly re-rent it for less, then the renter who broke the lease can be heldresponsible for the difference including advertising and search costs.

If rental price is same as or below the market price, damages = zero 2) Re-let on the tenants account


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o The landlord may refuse to accept surrender, Instead the LL may, after notice to the tenant,actively look for a new tenant to re-let apartment on tenants account

o when new tenant found, landlord may sue former tenant for the difference betweenold rental price and new rent received from new lessee, if new rent is lower than the

originalo new rent must be reasonable though cannot charge $5 and sue

Problem: how does landlord make clear that she is refusing to accept tenants pro-offeredsurrender of the lease?

Some states view re-letting as accepting surrender of lease Some say act of re-letting does not preclude landlord from asserting she did not

accept the surrender In others, must notify of re-letting

Significance of accepting surrendero Situation in which 1 yr lease tenant moves out, and finds new tenant month-to-month

and moves out too, leaving 2 months left and cannot find new tenant If accepted 1sttenants surrender, cant sue for last 2 months rent If did not accept surrender, can sue very first person in the lease

3) Wait and sue for rent at end of lease terms versus mitigate damageso Traditional rule is that the landlord may do nothing, wait for the end of the lease term and

then sue the tenant for the remaining unpaid back rent.o To sue for entire rent itself landlord must wait until lease term ends

Most states now reject this option Instead started to apply contract doctrine that requires aggrieved party to mitigate

damages Policy Argument: By sitting around and waiting to sue, landlord is increasing

damages that could have been avoided by re-letting to new tenant Mitigate damages = act reasonably to seek another tenant If the landlord fails to mitigate damages by finding another tenant and waits til the

end of the lease to sue for the accumulated back rent, the amount of damages will bereduced by the amount that would have been avoided had the landlord mitigated andfound new tenant

if landlord does mitigate, he can still recover from tenant (1) the reasonable costs offinding a new tenant, (2) the rent for the premises while the premises were vacant andthe landlord was looking for a new tenant, (3) and the difference between the rentalprice and the new rent paid by the replacement tenant if it is lower than the originalrent

Sommer v. Kridel

FACTS: Sommer (P) did not attempt to re-let the premise he leased to Kridel (D), even though theopportunity to do so existed and Kridel has specifically informed Sommer that he was unable to gothrough with the leasing for personal reasons and asked for acceptance of his surrender. Sommer justnever responded and did not make an attempt to re-let even when a third party inquired about theapartment. Instead the landlord just brought suit to collect damages for breach on contract and back-rent.

ISSUE: Must a landlord make a reasonable effort to mitigate damages by attempting to re-let thepremises when a lessee surrenders ?

HOLDING: YES. If a lessee has affected a surrender of the leased premises, the landlord isunder an obligation to make a reasonable effort to mitigate damages by attempting to re-let the


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premises. Such mitigation of damages is his duty when he seeks to recover rents due fromdefaulting tenant.

#17 Tenants Right to Habitable Premise

The Covenant of Quiet Enjoyment Implied term, which need not be in writing, in which the landlord promises not to disturb the tenants

quiet enjoyment of the property

This includes a wide array of things including no insects When the landlord breaks this, the tenant may have cause action against the landlord. Balckett v. Olanoff(pg 703)- (noisy bar next door case)

Tenants alleged that the landlord breached his covenant of quiet enjoyment as a defense to anaction for rent after the landlord rented nearby property to a noisy bar forcing the tenants tovacate

Issue: Can a constructive eviction be found where the landlord permits a third party tosubstantially impair the rights of other tenants? YES

Rationale: where the landlord permits an activity to continue, which he can control, that causessignificant impairment of the rights of other tenants, this constitutes a breach of the landlordscovenant

The Structure of landlord-tenant litigation

Landlord Initiating Lawsuito Most lawsuits involve claims by the landlord against the tenant based on the tenants failure to

pay rent or some breach of the lease agreemento The landlords complaint may seek either:

Payment of back rent owed to the landlord or Possession of the premises (eviction)

o The landlord may also claim for damages resulting from the breacho The tenant can answer each of these claims by:

Denying that he has breached the lease or He may raise defenses to these claims

o The tenant may also make counterclaims against the landlord including Claims for damages resulting in the landlords breach of lease

May res

Documents

Property Parker Fall2010